Dismissed

K M Savithri v. Kayarthodi a Padmavathi

Karnataka HC8 Sept 2023WP/1721/2020

Case brief

AI extract

What is this about?

In a writ petition under Article 226, the High Court of Karnataka refused to quash a trial court order allowing legal representatives in a partition suit. The court held that legal representatives are necessary parties in partition suits and the trial court was justified in condoning delay despite lack of prior notice.

What did the court decide?

Writ petition dismissed with costs of Rs. 3,000/- payable to plaintiffs before trial court.

K M Savithri Vs Kayarthodi a Padmavathi — Partition | Karnataka HC (2023)

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NC: 2023:KHC:32544 WP No. 1721 of 2020

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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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WRIT PETITION NO. 1721 OF 2020 (GM-CPC)

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BETWEEN:

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K M SAVITHRI

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W/O LATE K A MADAPPA AGED ABOUT 52 YEARS

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K M BHUVANESHWARI D/O LATE K A MADAPPA AGED ABOUT 27 YEARS

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BOTH R/AT KALATHMADU VILLAGE AMMARTHI NAD VIRAJPET TALUK KODAGU DISTRICT-571211.

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…PETITIONERS

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(BY SRI. SACHIN B S, ADV.)

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Digitally signed by A K CHANDRIKA Location: High Court of Karnataka

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AND:

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KAYARTHODI A PADMAVATHI D/O KAYARTHODI APPAIAH AGED ABOUT 55 YEARS R/AT NO.9/3, B-5 GOWRISHANKARNAGAR OOTY ROAD MYSORE-570 025.

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KAYARTHODI A JAYALAKSHMI D/O KAYARTHODI APPAIAH W/O SRI DEVAIAH AGED ABOUT 51 YEARS

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2 - NC: 2023:KHC:32544 WP No. 1721 of 2020

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R/AT CHETTALLI SOMWARPET TALUK KODAGU DISTRICT-571234.

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K A GANAPATHY S/O K APPAIAH AGE:MAJOR

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K A KALLAPPA S/O K APPAIAH AGE:MAJOR

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K A NANAIAH S/O K APPAIAH AGE:MAJOR

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K A POONACHA S/O APPAIAH AGE:MAJOR

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K A RENU S/O APPAIAH AGE:MAJOR

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RESPONDENT NO.3 TO 6 ARE R/AT KALATHMADU VILLAGE AMMATHI NAD VIRAJPET TALUK KODAGU DISTRICT-571211.

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SMT. POOVI (KUMARI) C/O DHARMAPRAKASH (RAMESH) AGE:MAJOR UDDATH VILLAGE MEKERI POST MADIKERI TALUK KODAGU DISTRICT-571211.

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SMT. YESHODHA K A C/O UMASHANKAR AGE: MAJOR NO.1013, 9^TH CROSS, EGF BLOCK

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3 - NC: 2023:KHC:32544 WP No. 1721 of 2020

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RAMAKRISHNA NAGAR MYSORE-22.

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…RESPONDENTS

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(BY SRI. N.R.GIRISHA, ADV. FOR R1, R2, R4, R6 & R7 R3, R5, R8 SERVED & UNREPRESENTED V/O DATED 12.04.2021 NOTICE TO R9 IS D/W)

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THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 10.10.2019 PASSED ON IA NO.8, 9 AND 12 IN OS NO.60 OF 2013 ON THE FILE OF PRINCIPAL CIVIL JUDGE, VIRAJPET, VIDE ANNX-A.

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

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ORDER

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The petitioners/legal representatives of defendant No.3 in O.S.No.60/2013 on the file of the Principal Civil Judge at Virajpet are before this Court questioning the order dated 10.10.2019 allowing I.A.Nos.8, 9 and 12 filed

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to bring the petitioners herein on record as legal representatives of defendant No.3; to condone the delay in filing L.R. application and to set aside the abatement.

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Heard learned counsel Sri.B.S.Sachin for petitioners.

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Learned counsel Sri.N.R.Girisha for respondents No.1, 2, 4 6 and 7. Perused the writ petition papers.

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4 - NC: 2023:KHC:32544 WP No. 1721 of 2020

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Learned counsel Sri.Sachin for petitioners would contend that though the petitioners are legal representatives of defendant No.3, the trial Court proceeded to allow applications without providing opportunity to file objections. The trial Court could not have condoned the delay in making application to bring the legal representatives of defendant No.3 on record without providing opportunity to the petitioners. Further, learned counsel would submit that no reasons are forthcoming in the affidavit accompanying application seeking condonation of delay in filing L.R. application. The trial Court is not justified in allowing the applications. Hence, he prays for allowing the writ petition.

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Per contra, learned counsel Sri.N.R.Girish for respondents would submit that the petitioners/legal representatives of defendant No.3 subsequently filed their written statement, participated in the proceedings and they have also led their evidence. He also submits that the suit of the plaintiffs is for partition and separate

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5 - NC: 2023:KHC:32544 WP No. 1721 of 2020

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possession of suit schedule properties. In a suit for partition, the legal representatives would be necessary and proper parties. Hence, he prays for dismissal of the writ petition.

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Having heard the learned counsel for the parties and on perusal of the writ petition papers, I am of the view that the petitioners have not made out any ground to interfere with the impugned order and the writ petition is liable to be dismissed with costs. This Court would exercise supervisory jurisdiction under Article 227 of the Constitution of India, if the order is capricious and if the order is allowed to remain, it would result in great hardship and would result in miscarriage of justice. Under impugned order, it is not the situation as stated above. The petitioners/legal representatives of defendant No.3 would not suffer any hardship nor if it remains, would not result in miscarriage of justice.

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The suit is one for partition and separate possession. Parties to the suit are brothers and sisters. When a

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NC: 2023:KHC:32544 WP No. 1721 of 2020

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brother or sister dies, it is necessary to bring legal representatives of such deceased brother or sister particularly in a suit for partition. In the above circumstances, the trial Court is justified in allowing the applications to bring the legal representatives of defendant No.3. The contention of the petitioners that no notice was issued before condoning delay cannot be applied to peculiar facts of the present case. Therefore, I am of the view that there is no ground to interfere with the impugned order. Accordingly, the writ petition is dismissed with costs of Rs.3,000/- payable to the plaintiffs

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before the trial Court, on the next date of hearing.

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SD/JUDGE

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MPK CT:bms List No.: 1 Sl No.: 53

K M Savithri v. Kayarthodi a Padmavathi

Case brief

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K M Savithri v. Kayarthodi a Padmavathi

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