Smt Jayamma Vs Puttaswamaiah

SMT. PARVATHAMMA AGED ABOUT 70 YEARS D/O LATE SRI. PUTTASWAMAIAH, W/O MR. JAYARAMA, R/A BYALALU VILLAGE, TAVAREKERE HOBLI, CHUNCHANAGERE POST, BANGALORE SOUTH TALUK.

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MR. P. HANUMANTHA, S/O LATE SRI. PUTTASWAMAIAH, AGED ABOUT 65 YEARS,

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MR. P. CHANDRU S/O LATE SRI. PUTTASWAMAIAH, AGED ABOUT 60 YEARS,

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MR. P. LAKSHMANA S/O LATE SRI. PUTTASWAMAIAH, AGED ABOUT 58 YEARS,

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MR. P. NAGARAJU S/O LATE SRI. PUTTASWAMAIAH, AGED ABOUT 55 YEARS,

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LR NO(pa) TO P(H) ARE REPRESENTED BY THEIR G.P.A. HOLDER P.RUDRAPPA.

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MR. P. RUDRAPPA S/O LATE SRI. PUTTASWAMAIAH AGED ABOUT 53 YEARS LRS OF PLAINTIFF NO P(c) TO (i),

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RESPONDENTS NO.5 TO 9 ARE R/AT BABUSABARAPALYA, KENGERI HOBLI, BANGALORE SOUTH TALUK.

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THE SPL. LAND ACQUISITION OFFICER KIADB, (METRO RAIL PROJECT) NO.14/3, ARAVINDA BHAVAN, NRUPATHUNGA ROD, BANGALORE.

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…RESPONDENTS

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(BY SRI. H.L. PRADEEP KUMAR, ADVOCATE FOR R10; R1-R9 ARE SERVED & UNREPRESENTED)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED:03.08.2018 PASSED ON I.A.NO.IV/2018 IN O.S.NO.5811/2008 ON THE FILE OF THE 28^TH ADDITIONAL CITY CIVIL JUDGE, MAYO HALL, BANGALORE .

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2025:KHC:2591 MFA No. 1642 of 2019

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CORAM: HON'BLE MR JUSTICE K.NATARAJAN

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ORAL JUDGMENT

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This appeal is filed under Order XLIII Rule 1(r) of CPC for setting aside the order dated 03.08.2008 passed in O.S. No.5811/2008 by the XXVIII Additional City Civil Judge, Mayo Hall, Bangalore, whereby the trial Court has directed respondent No.10 not to disburse compensation to the parties to the suit as well as to the opponents in I.A. No.1/2018 in respect of the plaint schedule properties.

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Heard the learned counsel for the appellant and the learned counsel for respondent No.10. The other respondents have been served and remained unrepresented.

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The appellant was defendant No.35 before the trial Court and respondent Nos.1 to 9 were the legal heirs of the deceased plaintiff, and respondent No.10 was defendant No.43. For the sake of convenience, the parties are referred to as before the trial Court.

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The case of the appellant is that respondent Nos.1 to 9 filed a suit for partition and separate possession of the suit schedule property. During the pendency of the suit, the plaintiff filed I.A. No.1/2018 to implead the appellant herein and the other three opponents as defendant Nos.33 to 36. Learned counsel for the appellant appeared and stated no objection. However, the trial court not passed any order. On the other hand, prior to impleading the appellant and other three opponents as defendants, the trial court passed the impugned order directing respondent No.10 herein not to disburse the compensation amount to any of the parties to the suit. Thereafter, I.A. No.1/2018 was allowed to implead the appellant and other three opponents as defendant Nos.33 to 36. Hence, the appellant is before this Court contending that prior to passing the order of impleading the appellant as one of the defendants, the impugned order has been passed against her.

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It is contended by the learned counsel for the appellant that the compensation receivable by the appellant on

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the property is a self acquired property, which is not considered by the trial court. Hence, prayed for setting aside the impugned order.

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Per contra, learned counsel for respondent No.10 submits that if any order passed in favour of the appellant, they will disburse the compensation to the appellant.

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The submission of the learned counsel for the

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respondent No.10 is placed on the record.

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Having heard the learned counsel appearing for the parties, perused the records, which reveals that, of course, the plaintiff filed I.A. No.1/2018 to implead two opponents including the appellant herein as defendant Nos.33 to 35, and another I.A. to implead one more opponent as one of the defendants i.e. defendant No.36. Learned counsel for the appellant herein appeared for the proposed defendant and stated no objection to implead them as parties. However, without impleading them as parties, the trial court has passed the impugned order directing respondent SLAO not to disburse

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compensation to the parties and proceeded with the matter in I.A. No.4/2018. It is also seen that in the order dated 08.08.2018, the trial court has impleaded the present appellant as well as other three opponents as defendant Nos.33 to 36.

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On careful perusal of the impugned order, though the appellant was impleaded as one of the defendants subsequent to the passing of the impugned order by the trial court, but the trial court has categorically held that if respondent-SLAO is directed to disburse the compensation, the very purpose of filing the suit will be defeated. Considering the same, an opportunity was given to the appellant's counsel who objected the passing of the order and the trial court considered the urgency of the matter and passed the impugned order. However, the appellant has not filed any application for vacating the said order passed by the trial court and the appellant is not able to show that she has filed written statement claiming compensation as the property is her self acquired property.

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Such being the case, the appellant is required to approach the same court and if any written statement as well as an application for vacating the interim stay is filed, then seek appropriate relief before the said court. Therefore, this Court cannot interfere with the impugned order passed by the trial court when there is no pleading by the appellant in respect of vacating the order passed by the trial court. Therefore, it is necessary for the appellant to approach the same court and seek necessary relief.

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In view of the above, the appeal is devoid of merit and accordingly, it is dismissed.

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The trial Court is directed to dispose of the matter

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as early as possible, but not later than one year from the date of receipt of certified copy of this judgment.

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Sd/- (K.NATARAJAN) JUDGE

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CS List No.: 1 Sl No.: 49 CT:SK

Smt Jayamma v. Puttaswamaiah

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Smt Jayamma v. Puttaswamaiah

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