Partly allowed

Sri B M Venkatesh Rao v. Smt Thimmakka

Karnataka HC8 Sept 2023CP/128/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a civil petition filed under Section 24 of CPC. It transferred a revival appeal pending in the District and Sessions Judge court to hear it along with a reference appeal pending in the High Court, both arising from the same decree, to avoid conflicting decisions.

What did the court decide?

Revival appeal No.83/2018 was withdrawn from the District and Sessions Judge and transferred to this Court to be heard with reference appeal No.943/2015.

Sri B M Venkatesh Rao Vs Smt Thimmakka — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:32440 CP No. 128 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.G.PANDIT

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CIVIL PETITION NO. 128 OF 2022

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BETWEEN:

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SRI B M VENKATESH RAO S/O LATE MADHAVA RAO AGED 71 YEARS OCC: AGRICULTURE R/O BALENAHALLI VILLAGE CHALLAKERE TALUK CHITRADURGA -577501.

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Digitally signed by A K CHANDRIKA Location: HIGH COURT OF KARNATAKA

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KUM. NAGAVENAMMA D/O LATE MADHAVA RAO AGED 63 YEARS OCC: AGRICULTURE R/O BALENAHALLI VILLAGE CHALLAKERE TALUK CHITRADURGAE -577501.

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(BY SRI. PRITHVIRAJ SHASTRY G., ADV.)

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…PETITIONERS

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AND:

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SMT. THIMMAKKA W/O B KRISHNAPPA AGED 58 YEARS OCC: AGRICULTURIST R/O BALENAHALLI VILLAGE CHALLAKERE TALUK CHITRADURGA- 577501.

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NC: 2023:KHC:32440 CP No. 128 of 2022

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B KRISHNAPPA S/O B BASAIAH AGED 68 YEARS OCC: AGRICULTURE R/O BALENAHALLI VILLAGE CHALLAKERE TALUK CHITRADURGA -577501.

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…RESPONDENTS

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(BY SRI. R SHASHIDHARA, ADV. FOR R1 & R2)

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THIS PETITION IS FILED UNDER SECTION 24 OF CPC, PRAYING TO ALLOW THIS CIVIL PETITION BY WITHDRAWING R.A.NO.83/2018 ON THE FILE OF II ADDL. DISTRICT AND SESSIONS JUDGE, CHITRADURGA AND TRANSFER THE SAME TO BE HEARD BY THIS COURT ALONG WITH RFA NO. 943/2015 PENDING BEFORE THE DIVISION BENCH OF THIS COURT IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Petitioners are before this Court under Section 24 of

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the Code of Civil Procedure, 1908 with a prayer to withdraw R.A.No.83/2018 on the file of II Additional District and Sessions Judge, Chitradurga and to transfer

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the same to be heard along with RFA No.943/2015 pending before this Court.

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Heard learned counsel Sri.Prithviraj Shastry for Sri.G.Balakrishna Shastry for petitioners and

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3 - NC: 2023:KHC:32440 CP No. 128 of 2022

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Sri.R.Shashidhara for respondents. Perused the petition papers.

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Learned counsel for the petitioners would submit that the petitioners filed O.S.No.11/2013 on the file of Senior Civil Judge and JMFC, Challakere for declaration that they are the absolute owners in possession of the suit schedule property bearing Sy.No.29/P1 (New Sy.No.29/1), totally measuring 20 acres 16 guntas of Balenahalli village, Kasaba Hobli, Challakere Taluk, Chitradurga District. The respondents/defendants in the suit on appearance filed written statement and counter claim valuing the counter claim at Rs.30,000/-. Learned counsel for the petitioners would submit that after trial and after hearing the parties to the suit, the suit as well as counter claim came to be dismissed by judgment and decree dated 30.04.2015. The petitioners, aggrieved by the judgment and decree dated 30.04.2015 in O.S.No.11/2013, approached this Court in RFA No.943/2015 whereas respondents filed RFA Crob.22/2015 challenging dismissal of their counter claim

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NC: 2023:KHC:32440 CP No. 128 of 2022

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in O.S.No.11/2013. On 11.09.2018, respondents withdrew RFA Crob.22/2015 by filing memo seeking permission to withdraw cross-objections in order to represent the same before the appropriate Court, having pecuniary jurisdiction.

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It is submitted that by order dated 11.09.2018, this Court dismissed RFA Crob.22/2015 with liberty to file appeal before the appropriate Court having pecuniary jurisdiction. Thereafter, respondents filed R.A.No.83/2018 on the file of II Additional District and Sessions Judge, Chitradurga challenging the dismissal of counter claim in O.S.No.11/2013.

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Learned counsel for the petitioners would submit that RFA No.943/2015 pending before this Court as well as R.A.No.83/2018 pending before the II Additional District and Sessions Judge, Chitradurga arises out of common judgment and decree dated 30.04.2015 in O.S.No.11/2013. The respondents had valued their counter claim at Rs.30,000/-. Therefore, based on the

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5 - NC: 2023:KHC:32440 CP No. 128 of 2022

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valuation of the suit, the appeal is filed before the District and Sessions Judge at Chitradurga. Learned counsel would submit that, to avoid conflicting decisions in RFA as well as in RA, learned counsel would pray for transfer of R.A.No.83/2018 pending before the II Additional District and Sessions Judge, Chitradurga.

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Per contra, learned counsel Sri.R.Shashidhara for respondents would submit that based on the pecuniary jurisdiction of the subject matter, respondents preferred R.A.No.83/2018 against dismissal of their counter claim filed in O.S.No.11/2013. Learned counsel would submit that there is no need to transfer R.A.No.83/2018 to this Court to be heard along with RFA No.943/2015. Thus, he prays for dismissal of the petition.

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Having heard the learned counsel for the parties and on perusal of the petition papers, I am of the view that prayer of the petitioners to transfer R.A.No.83/2018 needs to be allowed and R.A.No.83/2018 is to be transferred to this Court to be heard along with RFA No.943/2015.

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6 - NC: 2023:KHC:32440 CP No. 128 of 2022

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Admittedly, RFA No.943/2015 is preferred before this Court challenging the judgment and decree dated 30.04.2015 in O.S.No.11/2013. R.A.No.83/2018 before II Additional District and Sessions Judge, Chitradurga is filed challenging the same judgment and decree dated 30.04.2015 in O.S.No.11/3013 rejecting the counter claim of respondents/defendants. Both RFA before this Court and RA before the II Additional District and Sessions Judge, Chitradurga arise from the same judgment and decree dated 30.04.2015. When two appeals are pending in two different courts against one and the same judgment and decree, there is possibility of conflicting decision in both the appeals. To avoid such conflicting decisions, it would always be expedient and convenient to transfer the appeal pending before the District and Sessions Judge to be heard along with the appeal pending before this Court.

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Section 24 of CPC reads as follows:

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24. General power of transfer and

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withdrawal .—

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NC: 2023:KHC:32440 CP No. 128 of 2022

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(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage—

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(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

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(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

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(i) try or dispose of the same; or

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(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

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(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

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(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which [is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

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NC: 2023:KHC:32440 CP No. 128 of 2022

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(3) For the purposes of this section,—

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(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

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(b) “proceeding” includes a proceeding for the execution of a decree or order.]

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(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.

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(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.

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Sub-Section (1)(b)(i) of CPC permits the High Court to withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and to try or dispose of the same.

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Since both R.A.No.83/2018 and R.F.A.No.943/2015 arise from common judgment and decree in

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NC: 2023:KHC:32440 CP No. 128 of 2022

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O.S.No.11/2013 rejecting the suit of the

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petitioners/plaintiffs and rejecting the counter claim of respondents/defendants, to avoid conflicting decisions, R.A.No.83./2018 requires to be transferred from the Court of II Additional District and Sessions Judge, Chitradurga to this Court to hear and dispose of along with R.F.A.No.943/2015. Hence, the following order:

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(a) The petition filed under Section 24 of CPC is allowed.

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(b) R.A.No.83/2018 pending on the file of District and Sessions Judge, Chitradurga is withdrawn and the same is transferred to this Court for disposal along with R.F.A.No.943/2015.

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Sd/-

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JUDGE

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MPK CT:bms List No.: 1 Sl No.: 46

Sri B M Venkatesh Rao v. Smt Thimmakka

Case brief

What is this about?

What did the court decide?

Sri B M Venkatesh Rao v. Smt Thimmakka

Case brief

What is this about?

What did the court decide?

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