Dismissed

Smt M Anitha v. Sri T N Kosalram

Karnataka HC3 Feb 2022WP/40313/2016

Case brief

AI extract

What is this about?

Petitioners challenged the dismissal of their partition suit for non-prosecution by the Trial Court. The High Court held that the writ petition was not maintainable as the petitioners failed to exhaust the alternative remedy under Order IX Rule 9 of CPC before approaching the High Court.

What did the court decide?

Writ petition dismissed for non-exhaustion of the alternative remedy under Order IX Rule 9 of CPC.

Smt M Anitha Vs Sri T N Kosalram — Partition | Karnataka HC (2022)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 3^RD DAY OF FEBRUARY 2022

¶3

BEFORE

¶4

THE HON’BLE MR.JUSTICE ASHOK S. KINAGI

¶5

WRIT PETITION NO.40313 OF2016 (GM-CPC)

¶6

BETWEEN:

¶7

1 . SMT. M ANITHA D/O SRI. T.N.KOSALRAM, AGED ABOUT 55 YEARS, RESIDING AT "BANJARA SUMMIT" FLAT NO.202, NO.2, WHEELER ROAD, FRAZER TOWN, BANGALORE-560005

¶8

PRESENTLY RESIDING AT FLAT NO.33/A1 GROUND FLOOR, PRANAV TEJESHWINI ARCADE, N THYAGARAJU LAYOUT, JAI BHARATHI NAGAR, BANASWADI ROAD, BANGALORE-560033.

¶9

REPRESENTED BY ITS GPA HOLDER, SMT. S. SUMATHI, D/O SRI. T.N.KOSALRA, AGED ABOUT 52 YEARS

¶10

2 . SMT. S. SUMATHI D/O SRI. T. N. KOSALRAM, AGED ABOUT 52 YEARS, SOUTH AVENUE ROAD, PHASE-1,

¶11

¶12

SATHUVACHARI, VELLORE-632009

¶13

...PETITIONERS

¶14

(BY SRI. KIRAN J, M/S SHETTY AND HEGDE ASSOCIATES) AND:

¶15

SRI T N KOSALRAM SINCE DESEASED REPRESENTED BY LRS

¶16

SRI. K. SATISH KUMAR, S/O SRI. T.N.KOSALRAM, AGED ABOUT 55 YEARS, RESIDING AT NO.10, 9^TH MAIN, 1^ST BLOCK, HRBR LAYOUT, KALYANNAGAR, BANGALORE-560043

¶17

2 . SRI. K. CHANDRASHEKAR S/O SRI. T. N. KOSALRAM, AGED ABOUT 51 YEARS, RESIDING AT NO.10, 1^ST MAIN, 80 FEET PERPHERIAL ROAD, KORMANGALA, 6^TH BLOCK, BANGALORE-560095

¶18

3 . SRI. T.N.PADMANABHAN S/O LATE SRI. T.M.NAGARATNAM PILLAI, AGED ABOUT 76 YEARS, RESIDING AT NO.132, NARAYANA PILLAI STREET CIVIL STATION, BANGALORE-560 001

¶19

4 . SMT. H. GEETHA D/O SRI.T.N.PADMANABHAN AGED ABOUT 48 YEARS, RESIDING AT NO.61, KRYSTAL MANOR,

¶20

¶21

6^TH MAIN, 2^ND STAGE, K.H.B.COLONY, BASAVESHWARA NAGAR, BANGALORE-560079.

¶22

5 . SMT. S. SHARMILA D/O SRI. T.N.PADMANABHAN AGED ABOUT 47 YEARS, RESIDING AT NO.1117 1^ST CROSS, 4^TH STAGE, T.K.LAYOUT, KUVEMPUNAGAR, MYSORE-570024.

¶23

6 . SRI. T.N. JAYARAMAN S/O LATE SRI.T.M.NAGARATNAM PILLAI, AGED ABOUT 73 YEARS, RESIDING AT NO.132 NARAYANA PILLAI STREET, CIVIL STATION, BANGALORE-560 001. RESPONDENT No.1 TO 6 ARE ALSO RESIDING AT DOOR No.132 (OLD No.162) NARAYANA PILLI STREET CIVIL STATION BENGALURU - 560 001.

¶24

7 . M/S SOUTH ASIA INSTITUTE OF ADVANCED CHRISTIAN STUDIES, P.O.BOX NO.7747 KOTHANUR POST OFFICE BANGALORE-560077 REPRESENTED BY ITS MANAGING TRUSTEE, DR. GRAHAM HOUGHTON

¶25

8 . MR. HARISH KUMAR S/O T.N. KOSALRAM

¶26

¶27

AGED ABOUT 47 YEARS, OFFICE AT NO.152/2-2 WHEELER ROAD, FRAZER TOWN, BANGALORE-560 005

¶28

9 . SRI. P. MURALI S/O SRI. T.N. PADMANABHAN AGED ABOUT 54 YEARS, REPRESENTED BY HIS GPA HOLDER MR. HARISH KUMAR

¶29

RESPONDENT No.8 AND 9 ALSO RESIDING AT NO.132, NARAYANA PILLAI STREET CIVIL STATION, BANGALORE-560 001.

¶30

….RESPONDENTS

¶31

(BY SRI. M D RAGHUNATH & HITESH KAMAL JAIN, ADVOCATES FOR R-1 TO R-6) SRI. P.B. RAJU, ADVOCATE FOR R-8 AND R-9 R-7 SERVED)

¶32

¶33

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN O.S.NO.27051/2011 PENDING ON THE FILE OF HON'BLE LVII ADDL. CITY CIVIL JUDGE AND QUASH THE ORDER DATED 20.6.2016 (ANNEXURE-A) PASSED BY THE HON'BLE LVII ADDL. CITY CIVIL JUDGE IN O.S.NO.27051/2011 AND CONSEQENTLY BE PLEASED TO RESTORE THE SUIT TO ITS ORIGINAL FILE AND GIVE AN OPPORTUNITY TO PROCEED WITH THE CASE.

¶34

THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

¶35

¶36

O R D E R

¶37

The petitioners being aggrieved by the order dated 20.6.2016 passed in O.S.No.27051/2011 by the Principal City Civil and Sessions Judge, Bengaluru has filed the present writ petition.

¶38

Brief facts leading rise to filing of this petition are as under:

¶39

The petitioners (plaintiffs 3 and 4) and respondents No.8 and 9 (plaintiffs 1 and 2) have filed a suit for partition and separate possession. Respondents No.1 to 3 and 4 to 7, being the defendants, have filed written statement denying the averments made in the plaint.

¶40

The Trial Court has framed the issues. When the case was posted for plaintiffs' evidence, the learned counsel for the plaintiffs No.3 and 4 i.e. the petitioners herein filed a memo stating that he is going to retire

¶41

¶42

from the case and the Advocate for plaintiffs No.1 and 2, respondents No.8 and 9, submitted that the SLP is pending and they will lead evidence afterwards. It was observed by the Trial Court that there is a direction to dispose of the matter within 30.6.2016. Further, since plaintiffs 1 and 2 were absent, noting the absence, the suit came to be dismissed for nonprosecution. The petitioners being aggrieved by the same, has filed this writ petition.

¶43

Heard learned counsel for petitioners.

¶44

Learned counsel for the petitioners submits

¶45

that the counsel appearing for the petitioners has filed a memo for retirement on behalf of the petitioners without intimating them. He submits that the Trial Court has committed an error in dismissing the suit for non-prosecution which is arbitrary and erroneous

¶46

¶47

and hence, on these grounds he prays to allow the petition.

¶48

Perused the records and considered the submissions made by learned counsel for the petitioners.

¶49

It is not in dispute that the petitioners and respondents No.8 and 9 have filed the suit for partition and separate possession against respondents No.1 to 7. When the case was posted for plaintiffs' evidence, the counsel for the petitioners filed a memo for retirement on behalf of the petitioners. The Trial Court has recorded a finding that there is a direction to dispose of the matter within 30.6.2016 and that the plaintiffs cannot be absent on 30.6.2016. The Trial Court recording the absence of the petitioners has dismissed the suit for non-prosecution.

¶50

¶51

However, the petitioners have got an

¶52

alternative remedy under Order IX Rule 9 of CPC. Without exhausting the aforesaid remedy available to the petitioners, have filed this writ petition. The writ petition filed by the petitioners is not maintainable without exhausting the alternative remedy. Hence, the writ petition is liable to be dismissed.

¶53

Accordingly, the writ petition is dismissed.

¶54

However, liberty is reserved to the petitioners to move appropriate application before the appropriate forum.

¶55

SD/-

¶56

JUDGE

¶57

Smt M Anitha v. Sri T N Kosalram

Case brief

What is this about?

What did the court decide?

Smt M Anitha v. Sri T N Kosalram

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Jayashankar Vs Smt Puttamma

Smt. M R Saroja Vs Smt. Hanumakka

Mr Shekhara Shetty Vs Mr Rukmayya Shetty

Ansar Pasha Vs T. Venkategowda

Sri. M. Papanna Vs M/S. Valmark Homes

Smt Manjula Vs Smt Pillamma