Dismissed

Smt. Bhagirathi W/O Baburao Balulad v. Pandugouda S/Ov Enkanagouda Patil

Karnataka HC17 Sept 2024WP/105437/2024

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the trial court's rejection of an application invoking Order VI Rule 16 CPC to strike out the defense. The Court held that the trial court acted correctly by refusing to decide whether the suit was an abuse of process at an interlocutory stage, noting it as a matter for trial.

What did the court decide?

The writ petition filed to set aside the impugned order under Order VI Rule 16 CPC was dismissed.

Smt. Bhagirathi W/O Baburao Balulad Vs Pandugouda S/Ov… — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:13198 WP No. 105437 of 2024

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 17^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE H.P.SANDESH

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WRIT PETITION NO. 105437 OF 2024 (GM-CPC)

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BETWEEN:

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SMT. BHAGIRATHI W/O. BABURAO BALULAD, AGE: 62 YEARS, OCC: AGRICULTURE, R/O. WAR NO.V, SIDRAMESHWAR NAGAR, YADAWAD ROAD, TQ: MUDHOL, DIST: BAGALKOT-583236.

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SANJEEVRADDI S/O. BABURAO BALULAD, AGE: 47 YEARS, OCC: EXCISE INSPECTOR AND AGRI., R/O. STATE EXCISE OFFICE, NAVANAGAR, HUBBALLI, DIST: DHARWAD-580025.

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…PETITIONERS

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(BY SRI. PRASHANT S. HOSMANI, ADVOCATE)

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AND:

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SAROJA HANGARAKI

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Location: HIGH COURT OF KARANTAKA DHARWAD BENCH

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PANDUGOUDA S/O. VENKANAGOUDA PATIL, AGE: 58 YEARS, OCC: AGRICULTURE AND M D IN KMF KALABURGI, R/O. SUJATA NIVAS, WARD NO.II, PLOT NO.31, BILLUR NAGAR, OPP S.N. MEDICAL COLLEGE, BAGALKOT, TQ: & DIST: BAGALKOT-587101.

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ADARSH S/O. PANDUGOUDA PATIL, AGE: 28 YEARS, OCC: STUDENT, R/O. SUJATA NIVAS, WARD NO.II, PLOT NO.31, BILLUR NAGAR, OPP S.N. MEDICAL COLLEGE, BAGALKOT, TQ: & DIST: BAGALKOT-587101.

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KUMARI SAHASRA D/O. PANDUGOUDA PATIL, AGE: 25 YEARS, OCC: STUDENT,

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2 - NC: 2024:KHC-D:13198 WP No. 105437 of 2024

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SUJATA NIVAS, WARD NO.II, PLOT NO.31, BILLUR NAGAR, OPP S.N. MEDICAL COLLEGE, BAGALKOT, TQ: & DIST: BAGALKOT-587101.

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ADITYA S/O. PANDUGOUDA PATIL, AGE: 21 YEARS, OCC: STUDENT, SUJATA NIVAS, WARD NO.II, PLOT NO.31, BILLUR NAGAR, OPP S.N. MEDICAL COLLEGE, BAGALKOT, TQ: & DIST: BAGALKOT-587101.

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BABURAO S/O. VENKAPPA BALULAD, AGE: 77 YEARS, OCC: AGRICULTURE AND PENSIONER, R/O. WARD NO.V, SIDRAMESHWAR NAGAR, YADAWAD ROAD, TQ: MUDHOL, DIST: BAGALKOT-583236.

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SPECIAL LAND ACQUISITION OFFICER, UPPER KRISHNA PROJECT JAMKHANDI, DIST: BAGALKOT.

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…RESPONDENTS

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI AND SET ASIDE THE ORDER ON IA NO.7 DATED 29/08/2024 PASSED IN OS NO.273/2022 PENDING ON THE FILE OF PRL. SENIOR CIVIL JUDGE AND JMFC MUDHOL PRODUCED AT ANNEXURE-L IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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3 - NC: 2024:KHC-D:13198 WP No. 105437 of 2024

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)

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Heard the learned counsel for the petitioners and the counsel appearing for the respondents.

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The present petition is filed against the rejection of order passed by the trial Court in rejecting I.A.No.VII, wherein the Order VI Rule 16 was invoked before the trial Court for striking out the defense and the same came to be rejected and hence, the said petition is filed.

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The counsel appearing for the petitioners would vehemently contend that the suit is a vexatious suit and earlier suit was filed in O.S.No.81/2006 and the same was also decided in RFA No.100093/2021. The court in those proceedings has already held that the suit scheduled properties are exclusive properties of petitioner No.2 and the same is also admitted by respondent No.5. Therefore, the second suit for partition at the behest of the respondent No.5 is vexatious and nothing but an abuse of process and the trial Court fails to take note of the said facts into consideration. Hence, the impugned order is liable to quashed.

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4 - NC: 2024:KHC-D:13198 WP No. 105437 of 2024

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Having considered the ground urged in the petition as well as the prayer sought in I.A.No.VII invoking Order VI Rule 16, strikeout the prayer sought since already matter was decided in the earlier suit and only at the behest of respondent No.5, the said relief is sought and the same is objected by the plaintiff by filing separate objection statement and trial Court also while rejecting I.A.No.VII taken note of share claimed to the extent of 1/4^th share and also explained the relationship between the defendant Nos.1 and 2 and also the deceased one Sujata and defendant No.3. Plaintiff No.1 is the husband of the said Sujata and plaintiff Nos.2 to 4 are the children of the said Sujata and they claimed the share. The trial Court also taking into note of the grounds which have been urged in the application as well as the objection statement in paragraph No.11, discussed the relief is sought earlier, a declaratory relief and also the permanent injunction and the earlier application I.A.No.VI was also rejected and claim made by the plaint in paragraph No.12 is also discussed that those properties are not the ancestral properties and the defendant No.3 claims as self acquired properties and hence, prayer is sought invoking Order VI, Rule 16 and the trial Court also having taken note of the

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5 - NC: 2024:KHC-D:13198 WP No. 105437 of 2024

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said facts into consideration and so also the earlier decree as well as appeal in RFA in paragraph No.13 discussed for having received the amount of Rs.30,000/- and also contention was taken that the same was binding and trial Court comes to the conclusion that whether those properties are ancestral properties or self acquired properties of the dependent and the same is a matter of trial. The plaintiff is having right to claim the share in the suit and only on the ground that suit is filed only for harass the defendant cannot be decided in an IA and the same is a matter of trial and hence, the relief sought under Order VI, Rule 16 cannot be granted. When the trial Court has given such finding, that matter has to be adjudicated whether the plaintiffs are entitled for the relief or not since they claimed 1/4^th share, even the petitioner can urge those grounds in the suit itself by placing all the material on record and when such being the case, question of the relief sought under Order VI, Rule 16 does not arise and hence, the trial Court has not committed any error in dismissing the application and hence, there is no any merit in the petition to quash the order on I.A.No.VII.

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6 - NC: 2024:KHC-D:13198 WP No. 105437 of 2024

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In view of the discussions made above, I pass the

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following:

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ORDER

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The writ petition is dismissed.

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Sd/(H.P.SANDESH) JUDGE

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SSP CT-MCK List No.: 1 Sl No.: 28

Smt. Bhagirathi W/O Baburao Balulad v. Pandugouda S/Ov Enkanagouda Patil

Case brief

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Smt. Bhagirathi W/O Baburao Balulad v. Pandugouda S/Ov Enkanagouda Patil

Case brief

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