Disposed

Smt Shantha Bai v. Smt Saraswathi Bai

Karnataka HC16 Jul 2024WP/5522/2017

Case brief

AI extract

What is this about?

In a partition suit, defendants' application to have their counter claim decided was dismissed by the trial court as belated and not maintainable. The High Court set aside that order, noting a counter claim already filed with the written statement deserved consideration, and permitted filing of an application for restoration within fifteen days.

What did the court decide?

Impugned order dated 13.03.2015 set aside; petitioner permitted to file restoration application within 15 days.

Smt Shantha Bai Vs Smt Saraswathi Bai — Partition | Karnataka HC (2024)

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NC: 2024:KHC:28206 WP No. 5522 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 5522 OF 2017 (GM-CPC)

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BETWEEN:

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SMT.SHANTHA BAI AGED ABOUT 66 YEARS, W/O. T.G.MAHALINGAPPA,

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SUJATHA AGED ABOUT 46 YEARS, D/O. T G MAHALINGAPPA,

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SHOBHA AGED ABOUT 43 YEARS, D/O. T.G.MAHALINGAPPA,

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GIRISH AGED ABOUT 41 YEARS, D/O. T.G.MAHALINGAPPA,

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Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA

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VIJAYANANDA AGED ABOUT 39 YEARS, S/O. T.G.MAHALINGAPPA,

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ALL ARE R/O. NAVODAYA SHOE MART, P.B.ROAD, DAVANAGERE -577 001.

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…PETITIONERS

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(BY SRI. CHIDAMBARA G.S., ADVOCATE)

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AND:

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SMT.SARASWATHI BAI AGED ABOUT 72 YEARS, W/O. T.G.HARICHANDRA,

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RAJASHEKAR T.H. AGED ABOUT 56 YEARS, S/O T.G.HARICHANDRA

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2 - NC: 2024:KHC:28206 WP No. 5522 of 2017

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T.H.NIRANJAN BABU AGED ABOUT 53 YEARS, S/O T.G.HARICHANDRA

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DAYANANDA T.H. AGED ABOUT 49 YEARS, S/O T.G.HARICHANDRA

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NIRMALA AGED ABOUT 47 YEARS, D/O T G HARICHANDRA

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RESPONDENTS 1 TO 5 ARE R/O. KING FOOT WEAR, MANDIPET, DAVANAGERE -577 001

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T.G.GURUPADAPPA SINCE DEAD BY LRS,

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6(A) T.G.MANJUNATH, S/O. LATE. T.G.GURUPADAPPA, AGED ABOUT 54 YEARS, ROYAL FOOT WEAR, GANDHI CIRCLE, DAVANAGERE -577 001

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6(B). T.G.GOPALAKRISHNA S/O. LATE. T.G.GURUPADAPPA, AGED ABOUT 52 YEARS, R/O. 1464/2, 1^ST MAIN, 12^TH CROSS, VINOBNAGAR, DAVANAGERE -577 001

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6(C). T.G.CHANDRASHEKAR S/O. LATE. T.G.GURUPADAPPA, AGED ABOUT 48 YEARS, ROYAL SHOE PARK, DAVAVANAGERE CLUB COMPLEX, PRAVASI MANDIR ROAD, DAVANAGERE -577 001

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6(D). SMT. JAYASHREE RATHHNAKAR ULLIKASI W/O. RATHNAKAR ULLIKASI, AGED ABOUT 49 YEARS, R/O. 2^ND MAIN, 16^TH CROSS, VINOBANAGAR, DAVANAGERE -577 001

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3 - NC: 2024:KHC:28206 WP No. 5522 of 2017

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NARAYANA SWAMY T.G. S/O T GANGAPPA, AGED ABOUT 71 YEARS, JANATHA FOOT WEAR, MANDIPET, DAVANAGERE -577 001

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PRAKASH R.D. S/O D.RUDRAPPA, AGE NOT KNOWN TO PETITIONERS, ROYAL FOOT WEAR, GANDHI CIRCLE, DAVANAGERE- 577 001

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ARJUN MABRUMBKAR S/O NOT KNOWN, AGE NOT KNOWN TO PETITIONERS, R/O. D NO. 469/2, 16^TH CROSS, KTJ NAGAR, DAVANAGERE,

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…RESPONDENTS

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(R1, R2, R4, 45, R6(C), R7, R9 ARE SERVED AND UNREPRESENTED V/O/D 12.07.2024 NOTICE TO R6(A) (B) & (D) ARE HELD SUFFICIENT V/O/D 12.07.2024 NOTICE TO R8 IS DISPENSED WITH BY SRI.S.D.N.PRASAD, ADVOCATE FOR R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 13.03.2015 VIDE ANNEXURE-E PASSED BY THE COURT OF THE II ADDL. DISTRICT & SESSIONS JUDGE, DAVANAGERE IN O.S.69/2009 ON I.A. FILED UNDER SEC. 151 OF CPC BY PETITIONERS BEARING NO. NIL.

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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 present writ petition is filed aggrieved by the order

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passed in O.S.No.69/2009 dated 13.03.2015 by the II Addl.

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NC: 2024:KHC:28206 WP No. 5522 of 2017

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District & Sessions Judge, Davanagere, the defendant No.2 to 7 are before this court.

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The respondent herein had filed suit seeking partition and separate portion of the suit schedule property. In that defendant Nos.2 to 7 have filed their written statement and also counter claim in respect of Item No.1 of plaint schedule property. Then on 31.07.2013 the suit came to be dismissed for non-prosecution. The Plaintiff had filed an application seeking restoration of the same which came to be restored on 07.12.2013 on the condition that he shall pay an amount of Rs.5,000/- as cost. As the plaintiff failed to pay the cost, the suit was not restored. Then the present application came to be filed stating that the counter claim of the defendant is there as such the same has to be decided by the court. The court by order impugned had dismissed the same. While dismissing the application, the court has observed that the suit came to be dismissed for non-prosecution on 31.07.2013 and same was allowed on the cost of Rs.5,000/-. When the defendant has filed a counter claim and the when the suit was dismissed on 31.07.2013 for non-prosecution, the defendants are duty bound to bring to the notice of the court about their counter

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claim. They have failed to bring it to the notice of the court. The court further observed that, abruptly on 10.03.2015, the defendant No.5 has filed an application to take up the suit on board for considering the defendant’s counter claim. The court had dismissed the application on the ground that defendant is not diligent in pursuing the matter and the application is filed after the lapse of one year eight months and as the same is not maintainable. Aggrieved thereby the defendant Nos.2 to 7 are before this court.

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Learned counsel for the petitioner submits that, his counter claim is filed immediately alongwith the written statement. When there is counter claim, because of the lapses on the part of the plaintiff when the court is dismissing the same, the court ought to have take into consideration the counter claim. He submits that though there are lapses on the part of the defendant also, considering the suit is filed for relief of partition, the court ought to have considered the said application and ought to have allowed the application.

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Learned counsel for the respondent/plaintiff submits that as the restoration order was passed on the condition that plaintiff has to pay an amount of Rs.5,000/- as cost and

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6 - NC: 2024:KHC:28206 WP No. 5522 of 2017

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admittedly they have not paid the said amount, as such the suit is not restored. He submits that the present application is filed almost after one year eight months and without filing an application for condonation of delay and the trial court has passed this order. He submits that considering the lapses on the part of the defendant, had dismissed the petition and no grounds are made out seeking interference with the well considered order passed by the court.

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Having heard the learned counsels on either side, perused the entire material on record. This is a suit for partition. Unfortunately a suit is filed in the year 2001 and the writ petition which is filed in the year 2017 is still pending. The plaintiff inspite of an order where the suit is restored had failed to comply with the conditional order and it appears that the he is not interested to pursue the matter. When that is the case, even if the writ petition is allowed. It would not cause any prejudice to the plaintiff. Now coming to the observation of the court that when there is a counter claim, it should be brought to the notice of the court, when the court is passing an order even the counter claim should have been take into consideration by the court and it is equally the responsibility of

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NC: 2024:KHC:28206 WP No. 5522 of 2017

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the party to bring it to the notice of the court. But considering the fact that the already a counter claim is filed along with the written statement, this court is of the view that an opportunity should be given to the defendant.

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Accordingly, the following:

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ORDER

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i. The order impugned passed in O.S.No.68/2009 dated 13.03.2015 by the II Addl. District & Session Judge, Davanagere is set aside.

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ii. The petitioner is permitted to file an appropriate application within a period of 15 days from the date of receipt of copy of the order for restoration of the suit.

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iii. Accordingly, the writ petition is disposed off.

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iv. All IAs., in the writ petition shall stand closed.

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SD/JUDGE

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List No.: 1 Sl No.: 18

Smt Shantha Bai v. Smt Saraswathi Bai

Case brief

What is this about?

What did the court decide?

Smt Shantha Bai v. Smt Saraswathi Bai

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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