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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.16300 OF 2018 (GM-CPC)
BETWEEN:
SMT. ANDAL JAYALAKSHMI,
W/O S. BALASUBRAMANI,
AGED 54 YEARS,
R/AT NO 1611, KANADHA SAKTHI NIVAS,
B.M. ROAD, SUMATHINAGAR
ROBERTSONPET, KGF - 563 122.
KOLAR DISTRICT ...PETITIONER
(BY SRI. M.B.CHANDRACHOODA, ADVOCATE)
AND:
1 . SRI. S. BALASUBRAMANI,
S/O LATE SEETHARAM,
AGED 57 YEARS
R/AT LIC OFFICE QUARTERS,
NO 303, FLA TNO 8,
3RD FLOOR, JEEVANBHEEMANAGAR
BENGALURU - 560 075.
2 . DR. C. KHYIJIYA RANI,
W/O DR. M. SHIVAKUMAR,
AGED 44 YEARS
R/AT A- 3, TYPE QUARTERS,
GENERAL HOSPITAL,
ROBERTSONPET, KGF - 563 122
KOLAR DISTRICT. ...RESPONDENTS
(BY SRI. DR. P.RAVISHANKAR, ADVOCATE FOR R1;
SRI. C.PATTABI RAMAN & SRI. P.RAGHAVAN, ADVOCATES FOR
R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DTD2.4.2018 PASSED ON IA II IN O.S.NO.63/2017 ON THE FILE
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OF SENIOR CIVIL JUDGE AND PRL.JMFC, KGF VIDE ANNEXURE-H
BY ISSUE OF WRIT OF CERTIORARI.
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner being the plaintiff in a partition suit in O.S.No.63/2017 is knocking at the doors of Writ Court for assailing the order dated 02.04.2018, a copy whereof is at Annexure-H whereby the learned Civil Judge, KGF, has rejected his request for clubbing of the subject suit with another suit filed by second respondent herein in O.S.No.45/2014, though both the suits involve the very same property.
2. After service of notice, respondents having entered appearance through their advocates make submission in justification of the impugned order resisting the writ petition inter alia contending that what is impugned in the writ petition is a discretionary order and therefore, writ Court does not ordinarily undertake a deeper examination.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is of the considered opinion that both the suits admittedly involving 3 the very same property need to be clubbed together and tried by the very same Court with liberty being reserving to the learned trial Judge of to pass common judgment & decree or separate judgment & decrees in his wisdom.
4. The above view of this Court is supported by the decision of the Apex Court in SHAMITA SINGHA VS. RASHMI AHLUWALIA, TRANSFER PETITION (CIVIL) NO. 1531/2018 decided on 18.06.2020 which eminently comes to the aid of petitioners; paragraph Nos. 7 & 8 being relevant, are reproduced below:
7. I have already observed that the "
Testamentary proceeding would have direct bearing or impact on the pending suit for partition. If the Letters of Administration is granted to the petitioner in the Testamentary proceeding, then the assets of the deceased may not remain available as the partible estate of Pawan Kumar Singha (deceased). ... The respondents are contesting the petition for grant of Letters of Administration. If the partition suit proceeds independently and plaintiffs therein succeed, then there would be a possibility of inconsistent findings by two High Courts, provided the petitioners succeed in the Testamentary proceeding. In situations of this nature, this Court in the cases of Balbir Singh Wasu vs. Lakhbir Singh And Others [(2005) 12 SCC 503], Nirmala Devi (supra) and Chitivalasa Jute Mills (supra), has directed clubbing together of both proceedings for hearing...
8. Ms. Mishra has argued that the suit for partition having been instituted before the Testamentary 4 Petition, her client's suit must be allowed to proceed first and the Testamentary Petition could be transferred to Delhi High Court, if necessary. It is also her submission that major portion of the assets of the deceased lie in Delhi. A petition for transfer under Section 25 of the Code, however, is decided on consideration of the ends of justice. The "First past the post" is not the principle that can be applied in proceedings of this nature. Thus, the view taken by the Delhi High Court in the case of Praveer Chandra (supra) would not aid the respondents here, as that proceeding was founded on a different principle embodied in Section 10 of the Code. I am of the opinion that the Probate Court having primacy in determining the question of grant of Letters of Administration or Probate, it would be expedient for the ends of justice that the Bombay High Court, which is hearing the Testamentary petition, should decide the suit for partition as well. The plaintiffs in the suit for partition are also contesting the Testamentary Petition and they would not be greatly inconvenienced in prosecuting the suit before the Bombay High Court...
In the above circumstances, this writ petition succeeds;
impugned order is set at naught; petitioner's subject application having been favoured, learned jurisdictional Principal Senior Civil Judge is requested to try & dispose off the subject suits together.
All contentions of the parties having been kept open.
Sd/-
JUDGE DS