Allowed

Sri Nanjappa v. Smt Eramma

Karnataka HC9 Jul 2024WP/143/2019

Case brief

AI extract

What is this about?

The High Court allowed a writ petition filed by defendants seeking permission to file a rejoinder to the plaintiffs' rejoinder in a partition suit. The Court set aside the lower court's dismissal, citing Krishnamurthy vs Hanumakka which overruled Mohammed Abdul Gafoor vs Peddappayachari.

What did the court decide?

Set aside the impugned order dated 25.10.2018 dismissing I.A.No.14; allowed I.A.No.14 to file rejoinder to rejoinder; suit to be disposed within six months.

Sri Nanjappa Vs Smt Eramma — Partition | Karnataka HC (2024)

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NC: 2024:KHC:26132 WP No. 143 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 143 OF 2019 (GM-CPC)

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BETWEEN:

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SRI. NANJAPPA S/O LINGAPPA AGED ABOUT 62 YEARS R/AT J.V.E.M.H.S., GNANA VIKASA ENGLISH MEDIUM SCHOOL, BIDADI BANGALORE-561 209.

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SMT. CHIKKARANAGAMMA SINCE DEAD BY LRs

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2(A) SRI. CHIKKANNA S/O LATE CHIKKARANGAIAH AGED ABOUT 55 YEARS

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Digitally signed by CHAITHRA A

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Location: HIGH COURT OF KARNATAKA

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2(B) SMT. PREMA D/O LATE CHIKKARANGAIAH AGED ABOUT 50 YEARS

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2(C) SRI. RANGAPPA S/O LATE CHIKKARANGAIAH AGED ABOUT 45 YEARS

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ALL ARE R/AT APPOGONDANALLI VILLAGE MANNE POST, THYAMAGONDLU HOBLI NELAMANGALA TALUK BANGALORE RURAL DISTRICT-562 132.

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NC: 2024:KHC:26132 WP No. 143 of 2019

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SMT. SHIVAMMA D/O LINGAPPA AGED ABOUT 58 YEARS

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SRI. DORESWAMY S/O LINGAPPA AGED ABOUT 56 YEARS

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PETITIONERS NO. 2 TO 4 ARE R/AT APPOGONDANALLI VILLAGE MANNE POST, THYAMAGONDLU HOBLI NELAMANGALA TALUK BANGALORE RURAL DISTRICT.

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SRI. SRIDHARA S/O LINGAPPA AGED ABOUT 52 YEARS WORKING AS ATENDER AT, SHESHADRIPURAM COMPOSITE PRE-UNIVERSITY COLLEGE, NO.40 SHESHADRIPURAMA BANGALORE-560 020.

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…PETITIONERS

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(BY SRI. RAVISHANKAR .S, ADVOCATE)

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AND:

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SMT. ERAMMA SINCE DEAD BY LRs

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1(A) SMT. SHARADAMMA D/O LATE MUDDANNA AGED ABOUT 71 YEARS

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1(B) SMT. GANGAMMA D/O LATE MUDDANNA AGED ABOUT 71 YEARS

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RESPONDENTS NO. 1(A) AND 1(B) ARE R/AT NO. 943 VAKKALIGARA BEEDI

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3 - NC: 2024:KHC:26132 WP No. 143 of 2019

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YELAHANKA OLD TOWN BANGALORE-560 064.

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1(C) SMT. PUTTAMMA @ AMMAYAMMA D/O LATE MUDDANNA AGED ABOUT 61 YEARS R/AT NO.106, ANJANAPPA BLOCK BEHIND OLD MIDDLE SCHOOL YELAHANKA HOBLI BENGALURU-560 064.

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1(D) SRI. SRIDHARA S/O LATE ANJANAPPA AGED ABOUT 50 YEARS

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1(E) SRI. RAMACHANDRA @ CHANDRA S/O LATE ANJANAPPA AGED ABOUT 47 YEARS

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1(F) SMT. NAGAVENI D/O LATE ANJANAPPA AGED ABOUT 45 YEARS

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ALL ARE R/AT NO. 22/23 BEERESHWARANAGAR CHUNCHANAGHATTA MAIN ROAD BENGALURU-560 062.

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SMT. NARASAMMA W/O MUTHARAYAPPA @ MOOGANNA D/O NAGANNA AGED ABOUT 74 YEARS R/AT MARALENAHALLI, KASABA HOBLI DODDABALLAPURA TALUK BANGALORE RURAL DISTRICT-560 123.

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SRI. RAJANNA S/O HANUMAKKA AGED ABOUT 54 YEARS

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SRI. CHIKKANNA S/O HANUMAKKA

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4 - NC: 2024:KHC:26132 WP No. 143 of 2019

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AGED ABOUT 59 YEARS

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RESPONDENTS NO.3 AND 4 ARE R/AT CHIKKASOLURA VILLAGE SOLURU HOBLI, MAGADI TALUK RAMANAGARA DISTRICT-562 127.

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[CAUSE TITLE AMENDED AS PER COURT ORDER DATED 04.12.2023]

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…RESPONDENTS

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(BY SRI. S.G. HEGDE, ADVOCATE FOR R1(A TO F), R2 AND R3; R4 SERVED AND UNREPRESENTED)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER PASSED BY THE SENIOR CIVIL JUDGE AT NELAMANGALA IN O.S.NO.1687/2009 ON I.A.NO.14 DTD:25.10.2018 VIDE ANNEXURE-G AND ALLOW I.A.NO.14 FILED BY THE PETITIONERS FOR GRANT TO LEAVE TO FILE REJOINDER TO THE REJOINDER FILED BY THE RESPONDENTS BY ALLOWING THIS PETITION.

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

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ORDER

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Being aggrieved by the order dated 25.10.2018 passed by the Senior Civil Judge at Nelamangala, on I.A.No.14 filed under Order VIII Rule 9 of CPC, the defendants 1, 2, 4, 5 and 7 in O.S.No.1687/2009 are before this Court.

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NC: 2024:KHC:26132 WP No. 143 of 2019

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The petitioners before this Court are the defendants

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in the suit. The respondents herein has filed a suit for declaration and partition. In the said suit, the defendants 1, 2, 4, 5 and 7 have filed their written statements and also sought for partition of eleven more additional properties. The suit was filed on 17.9.2009. The written statement was filed on 17.9.2014 along with the counter claim. For that, the plaintiffs have filed the rejoinder on 18.10.2015. At that juncture, the present I.A. is filed by the petitioners/defendants to file their rejoinder. By way of rejoinder what they want to add is that deceased Naganna had no right to execute the alleged Will either on 25.10.1948 or at any point of time and the said Late.Naganna died during the year 1950. As such the question of the Will coming into force do not arise at all. This application came to be dismissed by the Court below relying on the judgment of this Court in the case of Mohammed Abdul Gafoor .vs. Peddappayachari¹ and in the light of the same, the question of filing rejoinder would not arise. Aggrieved thereby, the defendants are before this Court.

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1 ILR 1980(1) KAR 247

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6 - NC: 2024:KHC:26132 WP No. 143 of 2019

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The learned counsel appearing for the

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petitioners/defendants submits that the law laid down by this Court in the case of Mohammed Abdul Gafoor has been held to be bad and the same is followed by several benches of this Court. He submits that a Co-ordinate Bench of this Court in the case of Krishnamurthy .vs. Hanumakka² has considered several judgments of this Court and the Apex Court on this aspect i.e. in the case of R. Dayananda Sagar .vs. Vatal Nagaraj³ ; K. Laxmanan .vs. Thekkyil Padmini⁴ ; M/s. Amalgamated Bean Coffee Trading Company Limited .vs. Zarir Minoo Bharucha⁵ and also the judgment rendered in the case of Mr. Glen Fredric Picardo .vs. Mr. Rodney Picardo⁶ . Considering all these judgments, the learned Judge had observed thus:

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“9. The decision appears to be a lone voice that was rendered in the peculiar circumstances of that case with no need of treating the case of Mohammed Abdul Gafoor, supra as per incurium. This court is in respectful disagreement with the same since it militates against a broad and consistent view as to the interpretation of Order VIII Rule 9 of CPC which is held to avail to the

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2 ILR 2019 KAR 4977

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3 AIR ONLINE 2019 KAR 760

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4 AIR 2009 SC 951

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5 ILR 2005 KAR 2089

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6 ILR 2010 KAR 4522

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plaintiffs as well. Yet another reason for not treating this case as having the precendential value is that it misses the true meaning and intent of the provision of Rule 9 which employs the expression “by way of defence to a set-off or counter-claim shall be presented” and by sheer logic, such a defence can be put forward only by the plaintiff inasmuch as a set-off or a counter-claim filed by the defendant partakes the character of the plaint qua the plaintiff. An argument to the contrary cannot be sustained.”

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Relying on this judgment, the learned counsel submits that the

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Court has failed to take into consideration the case of the petitioners/defendants and further in the light of the judgment rendered in the case of Krishnamurthy referred to supra, the judgment rendered in the case of Mohammed Abdul Gafoor referred to supra do not apply to the facts of this case and as such the judgment rendered in the case of Krishnamurthy has to be applied and their application needs to be allowed.

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The learned counsel for the respondents/plaintiffs submits that already plaintiffs have filed rejoinder to the counter claim of the defendants and as such filing of another rejoinder to the rejoinder filed by the plaintiffs is not maintainable and the same is contrary to the scope of Order

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NC: 2024:KHC:26132 WP No. 143 of 2019

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VIII Rule 9 of CPC. The learned Judge has rightly dismissed the application in I.A.No.14.

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Having heard the learned counsel for the respective parties, perused the entire materials on record.

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In this case, the plaintiffs filed the suit for declaration and partition. The defendants have filed their written statement along with the counter claim adding eleven more properties. For that, a rejoinder is filed by the plaintiffs. Now, the petitioners/defendants wants to file rejoinder to the rejoinder filed by the plaintiffs. No doubt, the rejoinder is filed immediately and the only thing that they added in that is that one Late.Naganna has no right to execute the alleged Will on 25.10.1948 or at any point of time and the said Late.Naganna died during the year 1950. As such the question of the Will coming into force does not arise at all. The learned counsel for the plaintiffs submits that in his rejoinder he has not set any counter claim which requires another rejoinder by the petitioners/defendants. When once a counter claim is filed, there is no question of filing rejoinder by the petitioners/defendants. It is very unfortunate that this I.A. is

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NC: 2024:KHC:26132 WP No. 143 of 2019

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filed in 2015 and the impugned order is passed in 2018. The present writ petition is pending from 2019 before this Court. The issue is that even if this I.A. is either allowed or dismissed,

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it would not cause any kind of prejudice to both the parties. Unfortunately, the parties are fighting on this I.A. The suit is stalled from 2018 till 2024 i.e. for a period of six years. The rejoinder that is filed by the petitioners/defendants is filed immediately after the rejoinder is filed by the plaintiffs and no prejudice would be caused to the plaintiffs if the same is allowed. Further the law laid down in Mohammed Abdul

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Gafoor’s case referred to supra is held to be not good law in Krishnamurthy’s case referred to supra. In the light of the said judgment, this petition needs to be allowed.

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In view of the foregoing reasons, this Court is passing the following:

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ORDER

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(i) The writ petition is allowed.

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(ii) The impugned order dated 25.10.2018 passed on I.A.No.14 in O.S.No.1687/2009 by the Senior Civil Judge at Nelamangala is hereby set aside and consequently, I.A.No.14 is allowed.

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NC: 2024:KHC:26132 WP No. 143 of 2019

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(iii) The Court below shall proceed with the matter as expeditiously as possible and shall dispose of the suit within six months from the date of receipt of certified copy of this order as the suit is a old suit. (iv) All pending IA’s, if any in this writ petition shall stand closed.

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SD/JUDGE

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ALB List No.: 1 Sl No.: 8

Sri Nanjappa v. Smt Eramma

Case brief

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Sri Nanjappa v. Smt Eramma

Case brief

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