Karnataka High Court
Smt Andal Jayalakshmi vs Sri S Balasubramani on 4 January, 2021
Author: Krishna S.Dixit
1
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
2
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
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
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
