Karnataka High Court
Kum.Padmavathi vs Sri.N.Mohan Das on 4 April, 2022
Bench: E.S.Indiresh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.18401 OF 2021 (GM-CPC)
BETWEEN
1. KUM. PADMAVATHI
AGED ABOUT 24 YEARS
D/O T CHELUVARAJ AND SUKANYA
2. MR. HEMANTH KUMAR
AGED ABOUT 21 YEARS
S/O T CHELUVARAJ AND SUKANYA
BOTH ARE R/AT ALKERE VILLAGE
YELEYUR POST
HUTHRIDURGA HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT.
...PETITIONERS
(BY SRI KUMAR K, ADVOCATE)
AND
1. SRI N MOHAN DAS
AGED ABOUT 60 YEARS
S/O LATE A NATESAN
R/AT NO.130, 7TH MAIN
RPC LAYOUT, VIJAYANAGAR II STAGE
BENGALURU -560 041.
2
2. SRI T CHELUVARAJU
AGED ABOUT 38 YEARS
S/O SRI THIMMARAYANPPA
R/AT NO.255, 7TH MAIN
RPC LAYOUT, VIJAYANAGAR II STAGE
BENGALURU -560 041.
....RESPONDENTS
(BY SRI S MRUTHYUNJAYA, ADVOCATE FOR R1;
NOTICE TO R2 STANDS WAIVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 07TH SEPTEMBER, 2021 PASSED IN IA 1 OF 2021
FILED UNDER SECTION 151 OF CODE OF CIVIL PROCEDURE
SEEKING RECALL OF THE ORDER DATED 12TH APRIL, 2021 IN
ORIGINAL SUIT NO.4532 OF 2016 ON THE FILE OF THE III
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
(CCH-25) VIDE ANNEXURE- J.
THIS PETITION COMING ON FOR HEARING THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This Writ Petition is filed by the plaintiffs in Original Suit
No.4532 of 2016 on the file of III Additional City Civil and
Sessions Judge, Bangalore, seeking partition and declaration in
respect of the suit schedule property. It is also the case of the
plaintiffs that the judgment and decree in Original Suit No.
No.2123 of 2019 dated 12th December, 2019 is not binding upon
them in respect of the suit schedule property. The plaintiffs
have filed application under Order I Rule 10(3) of Code of Civil
Procedure seeking impleading the proposed defendant No.3 and
the said notice issued to the proposed defendant returned with
shara, "left the address". Thereafter, the Court directed the
plaintiffs to take steps to issue notice to the proposed defendant.
However, the plaintiffs failed to take notice against the proposed
defendants and therefore, the trial Court, by order dated 12th
April, 2021, dismissed the application filed by the plaintiff for
non-prosecution. Thereafter, the plaintiffs filed application dated
06th August, 2021 seeking to recall the order dated 12th April,
2021 and to permit them to take steps against the proposed
defendant and the said application came to be rejected by the
trial Court by order dated 07th September, 2021 and feeling
aggrieved by the same, the plaintiffs have preferred this Writ
Petition.
2. Heard Sri K. Kumar, learned counsel appearing for the
petitioners and Sri S. Mrutyunjaya, learned counsel appearing
for the respondents.
3. Sri K. Kumar, learned counsel appearing for the
petitioners contended that the plaintiffs have filed two
applications, one under Order VI Rule 17 of Code of Civil
Procedure; and another application under Order I Rule 10(2) of
Code of Civil Procedure. The trial Court, allowed the application
filed under Order VI Rule 17 of Code of Civil Procedure, however,
dismissed the application filed seeking impleading the proposed
defendants. He further contended that during the interregnum,
application has been filed to discharge the guardian in the suit.
It is further contended that due to COVID-19 Pandemic, plaintiffs
and their counsel could not attend the Court proceedings and
therefore, the said aspect of the matter has not been considered
by the trial Court and accordingly, sought for interference in this
petition.
4. Per contra, Sri S. Mrutyunjaya, learned counsel
appearing for the respondents contended that since the earlier
application filed by plaintiffs under Order I Rule 10 was
dismissed on 12th April, 2021 for non-prosecution and since the
plaintiffs have not filed the recalling application in time, the
provisions of the Limitation Act is applicable, and therefore, the
learned counsel appearing for the respondent sought to justify
the impugned order.
5. On Perusal of the impugned order passed by the trial
Court and taking into consideration the arguments advanced by
the learned counsel appearing for the petitioner, the same would
indicate that the suit is filed for seeking partition and separate
possession in respect of the suit schedule property. Two
applications have been filed by plaintiffs seeking amendment of
the plaint as well as impleading the proposed defendant as party
in the suit. The application filed seeking amendment came to be
allowed and the trial Court issued notice on the application filed
under Order I Rule 10(3) of Code of Civil Procedure. Perusal of
the order sheet would indicate that the trial Court directed the
plaintiffs to pay process fee on 09th February, 2021. The trial
Court, by order dated 12th April, 2021 dismissed the application
seeking to recall the order dated 06th August, 2021. The Hon'ble
Apex Court in suo motu Writ Petition No.3 of 2020 decided on
10th January, 2022, has held that in view of the COVID-19
Pandemic, the period from 15th March 2020 to 28th February,
2022 shall stand excluded for the purpose of limitation.
Admittedly, the plaintiff has filed application to recall the order
dated 12th April, 2021 during the said period and that the said
aspect of the matter requires to be considered by the trial Court
and in that view of the matter, in my opinion, the impugned
order dated 07th September, 2021 is to be set aside directing the
trial Court to reconsider the application filed by the plaintiffs
seeking recalling the order dated 12th April, 2021 afresh, after
affording opportunity to both the parties and taking into
consideration the law declared by the Hon'ble Apex Court in the
aforementioned matter and pass appropriate orders, in
accordance with law. Accordingly, Writ Petition is allowed.
Order dated 07th September, 2021 passed by the trial Court is
set aside. It is also made clear that this Court has not expressed
any opinion on the merits of the case.
Sd/-
JUDGE
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