Karnataka High Court

Sunil Kumar vs Shri Mahadev Prasad And Ors on 2 December, 2021

Bench: R.Devdas, Rajendra Badamikar

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH
     DATED THIS THE 2ND DAY OF DECEMBER 2021
                       PRESENT
         THE HON'BLE MR.JUSTICE R. DEVDAS
                         AND
 THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

             RFA NO.200034/2018 (PAR/POS)
BETWEEN:
Sunil Kumar S/o Late Ramanand Agarwal,
Aged about 40 years, Occ: Business,
Resident of H.No.15-1-564, Siddiamber Bazaar,
Hyderabad-560012.
                                          ... Appellant

(By Sri Gangadhar R.Gurumath, Senior Counsel for
Sri K.M.Ghate, Advocate)
AND:
1.     Shri Mahadev Prasad
       S/o Late Ramanand Agarwal,
       Age about 54 years, Occ: Business,
       R/o H.No.15-1-564 Siddiamber Bazaar,
       Hyderabad.
2.     Shri Raj Kumar S/o Late Ramanand Agarwal,
       Age about 42 years, Occ: Business,
       R/o H.No.15-1-564 Siddiamber Bazaar,
       Hyderbad.
3.     Shri Anirudh Prasad S/o Mahadev Prasad,
       Age about 48 years, Occ: Business,
       R/o H.No.15-1-564 Siddiamber Bazaar,
       Hyderabad.
                            2




4.    Smt. Shakuntala Bai W/o Mahadev Prasad,
      Age about 35 years, Occ: Household,
      R/o H.No.15-1-564 Siddiamber Bazaar,
      Hyderabad.
5.    Smt. Sumalata W/o Rajkumar Agarwal,
      Age about 40 years, Occ: Household,
      R/o H.No.15-1-564 Siddiamber Bazaar,
      Hyderabad.
6.    M/s Navadurga Enterprises,
      Represented by Mr. Surendra Kumar Gupta
      Son of Mishri Lal,
      Age about 50 years, Occ: Business,
      R/o House No.8-2-16/B/6, Plot No.73,
      Road No.11 Banjara Hills, Hyderabad.
7.    Smt. Manisha Agarwal
      W/o Mr. Anirudha Prasad Agarwal,
      Age about 30 years, Occ: Household,
8.    Mr. Navin Prasad Agarwal
      S/o M.P.Agarwal (Mahadev Prasad Agarwal,
      Age about 29 years, Occ: Business,
      Both resident of H.No.15-1-564, Siddiamber Bazar
      Begum Bazar, Hyderabad A.P.)
9.    Smt. Minubai W/o Sunil Kumar Agarwal,
      Age about 38 years, Occ: Household & Business
      Agriculture, R/o H.No.15-1-564,
      Siddiamber Bazar, Hyderabad.
10.   Premkumar Lalvani S/o Badalchand Lalvani,
      Age about 40 years, Occ: Business R/o Pot No.4
      Bhavan Enclave New Bowenza,
      Hy-Secunderabad.

11.   N.K.Agarwal S/o M.L.Agarwal,
      Age about 27 years, Occ: Business,
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      R/o Ghansi Bazar, Hyderabad AP.

12.   Basai Agro Tech Private Limited,
      Represented by its Director
      Mr. Abhishek Agarwal S/o Rajkumar Agarwal
      Having its Regd. Office at Sy.No.193/B/PART
      Village & Mandal Zaheerabad Medak District AP.
13.   Late Smt. Santosh W/o Late Rajababu Mehdiya.
      (a)   Smt. Rajidevi W/o Rajesh ji,
            Age: Major, Occ: Business,
            R/o. 13, Shrinath Society, Opp. VHB
            Colony, Gorakshan Road, Akola
            (Maharashtra State).
      (b)   Mr. Pavan Mehadiya,
            Age: Major, Occ: Business,
            R/o. Jodhraj Bhavan, Sitaburdi,
            Nagpur, (Maharashtra State)
14.   Smt. Sharadadevi
      W/o Late Kamalkumar Ji Poddar,
      Age: Major, Occ: Household,
      R/o. Flat No.111 at 11th Floor,
      Mumbai (Maharashtra State).
15.   Smt. Savitadevi W/o Sri. Ganesh Ji Patwari,
      Age: Major, Occ: Household,
      R/o No.1 Chittaranjan Road, Teynampet,
      Chennai (Tamilnadu State)
16.   Smt. Roopa Devi W/o Sri.Anilkumar Saraf,
      Age: Major, Occ: Household,
      R/o Flat No.A-804, 8th Floor, Valentine Apartment,
      Malad (East) Boreville Gokuldhama,
      Mumbai (Maharashtra State).
17.   Smt. Shobha W/o Sri.Dr.Shyamsunder Agarwal,
      Age: Major, Occ: Household,
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      R/o Kachiguda, Beside Basant,
      Theatre Lane, Hyderabad, (Telangana State)

18.   Smt. Asha Devi W/o Late Sri. Rajubabu Dalmia,
      Age: Major, Occ: Household,
      R/o. N-222-greater Kailash Part-I,
      Ground Floor, New Delhi-110048.
                                        ..... Respondents
[By Sri. Vikram V.K. Advocate for R1;
Sri. Harshavardhan R. Malipatil, Advocate for R2;
Sri. Ravi B.Patil, Advocate for R3, R4, R7, & R8;
Sri. Sudheer Kulkarni, Advocate for R5;
Sri. R.S.Sidhapurkar, Advocate for R6;
Sri. Sachin M.Mahajan, Advocate for R9 to R11,
Sri. Huleppa Heroor, Advocate for R12;
Sri. Rajkumar A.Korwar, Advocate for R14,
Sri.B.D.Hangarki, Advocate for R13(A), R15, R16 & R18;
R13(B)- served;
R17-served]
      This RFA is filed under Section 96 R/w Order XLI
Rule 1 & 2 of Code of Civil Procedure, 1908, praying to
allow the appeal and consequently set aside the
judgment and decree dated 19th February-2018 in OS
No.148/2007 and consequently decree the suit of the
appellant in its entirety, granting the relief of partition
and separate possession, directing the trial court to
draw the preliminary/final decree as per law.

      This appeal coming on for orders this day,
R.Devdas, delivered the following:
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                        JUDGMENT

The appellant has filed an application U/o 23 Rule

1(3) R/w 151 of CPC to grant permission to the

appellant who was the plaintiff in O.S.No.148/2007 to

withdraw the said suit, with a liberty to institute a

separate suit for partition and separate possession of

the joint family properties situated at Hyderabad proper,

Zairabad of Telangana State.

2. This application is opposed by the learned

counsels for the respondents, who were the defendants

in the suit. It is not disputed that the plaintiff,

defendant Nos.1 and 2 are brothers and are governed by

Mitakshara Law. The suit seeking partition and

separate possession was dismissed by a judgment dated

19.02.2018. After this appeal was filed at the hands of

the plaintiff, this Court had directed the parties to

maintain status-quo in respect of the suit schedule

properties. However, it is submitted by the learned

counsels for the respondents that in violation of the said

order of status-quo, the appellant herein had raised

loan by mortgaging item No.21 of Schedule-D property.

When this was brought to the notice of this Court, this

Court deprecated the conduct of the appellant and

consequently directed the appellant to deposit a sum of

`19,50,00,000/-, `8,50,000/- and a sum of

`1,20,00,000/- before this Court, within a period of four

weeks, from the date of order i.e., 18.06.2021. It is

submitted that this order passed by this Court has not

been complied by the appellant. It is therefore

contended at the hands of the respondents that the

application should not be allowed unless and until the

orders passed by this Court are complied. Moreover, it

is submitted that liberty cannot be granted to the

appellant to file a fresh suit on the same cause of

action.

3. Per contra, learned Senior Counsel

Sri Gangadhar R. Gurumath, appearing for the

appellant would submit that during the course of the

trial, I.A.No.42 was filed by the plaintiff seeking to

abandon his claim in respect of item No.21 of Schedule-

D property, which is the bone of contention now while

considering this application. At this juncture, learned

counsels for the respondents would point out from the

order dated 18.06.2021 that the charge that was

created by the appellant herein was in respect of item

Nos.17, 33, 34, 35 and 4 of Schedule -D property and

not in respect of item No.21 as contended by the learned

Senior Counsel. The learned Senior Counsel would

submit that in fact item No.17 of Schedule-D is part of

item No.21. However, the learned Senior Counsel would

submit that even if the appellant were to deposit the

amounts as directed by this Court, finally if such an

application was filed by the appellant seeking to

withdraw the suit, this Court would accept the

contention of the appellant that there is no counter

claim raised by the respondents in respect of any of the

suit schedule properties. Therefore, even if the said

amounts were deposited and this Court allowed the

application permitting the appellant to withdraw the

suit, the appellant would seek for refund of the said

amount which was deposited at the hands of the

appellant. At any rate, the respondents cannot lay any

claim in respect of the said amounts which would have

been deposited at the hands of the appellant. The

learned Senior Counsel would further submit that

defendant Nos.1 and 2 have filed an original suit in

H.S.O.P.No.3/2020 on the file of the 25th Additional

Chief Judge, City Civil Court, Hyderabad,

O.S.No.683/2020 before the 8th Junior Civil Judge, City

Civil Court, Hyderabad, O.S.No.508/2021 and many

other suits. The learned Senior Counsel would

therefore submit that if the respondents herein have

filed suits raising their claim, nothing prevents the

respondents from pursuing those suits. On the other

hand, they cannot object for allowing the application

permitting the appellant herein to withdraw the suit

filed by him.

4. Having heard the learned Senior Counsel for

the appellant, learned counsel Sri Harshavardhan R.

Malipatil for respondent No.2 and learned counsel Sri

Ravi B. Patil for respondent Nos.3, 4, 7 and 8, we find

that the application filed at the hands of the appellant

seeking permission to withdraw the suit is required to

be considered on its merits. No doubt the appellant was

also required to comply with the directions issued by

this Court. But, we find that the orders directing the

appellant to deposit the entire amount on the ground

that the appellant had mortgaged some of the items of

the suit schedule properties during the pendency of an

order of status-quo, and that there has been violation of

such directions, would also be required to be considered

since this Court has observed the conduct of the

appellant. Nevertheless, we find substance in the

contention of the learned Senior Counsel that even if the

appellant had deposited those amounts as directed by

this Court, at the end of the day, if the appeal were to

be dismissed by allowing the application, permitting the

plaintiff to withdraw the suit, the amounts should have

been refunded to the appellant since that amount

cannot be claimed by the respondents for any reason

whatsoever. We also make it clear that this does not

mean that the rights of the respondents in respect of

any of the items of the suit schedule properties is taken

away or by their conduct waived any of their rights.

When this Court permits the appellant to withdraw the

suit that he had filed and consequently dismiss the

appeal, nothing that has taken place during the course

of the appeal would enure to the benefit of the appellant

herein. We are also of the considered opinion that the

liberty prayed for by the appellant to file a fresh suit on

the same cause of action cannot be granted by this

Court. On the contrary, if there is any right in respect

of the respondents herein, they can agitate the same by

filing any suit or continue their claim in any

proceedings already pending, in accordance with law.

5. Since we have held that the conduct of the

appellant as has been noticed by this Court in the

previous orders and the said conduct has been

deprecated and the fact that the appellant did not

deposit the amounts as directed by this Court, costs are

required to be imposed before permitting the appellant

to withdraw the suit.

6. Consequently, we proceed to pass the

following:

ORDER

(1) The application filed by the appellant in I.A.No.8/2021 is partly allowed.

(2) The appellant/plaintiff is permitted to withdraw the original suit in O.S.No.148/2007 on the file of the

Principal Senior Civil Judge and CJM, Bidar.

(3) No liberty as prayed for is granted to the plaintiff/appellant herein to file a fresh suit on the same cause of action.

(4) The appellant herein shall pay a sum of `1,00,000/- (Rupees One Lakh Only) to the Karnataka Chief Minister's Relief Fund, within a period of four weeks from today, as costs. The acknowledgement for which has to be filed in the Registry.