Karnataka High Court
Hanumanthareddys/O. Prabhanna vs Ayyappa S/O Nelappa Dead By Lrs on 7 February, 2022
Bench: E.S.Indiresh
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 07TH FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.201010 OF 2019 (GM-CPC)
BETWEEN:
HANUMANTHANA REDDY
S/O PREABHANNA
AGE 59 YEARS
OCC: AGRICULTURE
R/O MASDIPUR VILLAGE
TALUK: DEODURG
DISTRICT: RAICHUR 584 111
...PETITIONER
(BY SRI GANESH S. KALBURGI, ADVOCATE)
AND:
AYYAPPA
SINCE DEAD BY LRS
1. KALAMMA
W/O LATE AYYAPPA
AGE 60 YEARS
OCC: HOUSEHOLD AND AGRICULTURE
2. SHARANAPPA
S/O LATE AYYAPPA
AGE 40 YEARS
OCC: AGRICULTURE AND TAILOR
3. NEELAPPA
S/O LATE AYYAPPA
2
AGE 35 YEARS
OCC: AGRICULTURE AND CARPENTER
4. MAHESH
S/O LATE AYYAPPA
AGE 22 YEARS
OCC: AGRICULTURE AND TAILOR
ALL ARE R/O MASIDPUR VILLAGE
TALUK: DEODURGA
DISTRICT: RAICHUR 584 111
NOW AT SOLAPUR (MAHARASHTRA)
5. MALLAPPA
S/O RANGAPPA
AGE 40 YEARS
OCC: AGRICULTURE
6. SHIVARAJ
S/O RANGAPPA
AGE 34 YEARS
OCC: AGRICULTURE
7. HANUMANTH
S/O RANGAPPA
AGE 34
OCC: AGRICULTURE
ALL ARE R/O PANDYANNA VILLAGE
TALUK AND DISTRICT: RAICHUR 584 111
...RESPONDENTS
(BY SRI MAHANTESH PATIL, ADVOCATE FOR R5, R6 & R7;
NOTICE TO R1, R2, R4 SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 227 OF
THE CONSTITUTION OF INDIA PRAYING TO ISSUE AN
APPROPRIATE WRIT IN THE NATURE OF CERTIORARI AND
QUASH THE ORDER DATED 17.01.2019 PASSED ON IA.9 FILED
3
BY THE DEFENDANTS NO.2 TO 4 TO PERMIT THEM TO FILE
COUNTER CLAIM PASSED IN OS NO.74 OF 2016 BY THE SENIOR
CIVIL JUDGE, DEVADURGA VIDE ANNEXURE-G; AND ETC.
THIS PETITION COMING ON FURTHER HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed by the defendant No.1 in Original
Suit No.74 of 2016, assailing the order dated 17th January, 2019
on the file of the Senior Civil Judge at Devadurga.
2. For the sake of convenience, the parties in this writ
petition are referred to with respect to their status and ranking
before the trial Court.
3. Plaintiff has filed suit for declaration against the
defendants, in OS No.74 of 2016, contending that the suit
schedule properties are the ancestral properties of the plaintiff.
Defendants filed IA.IX under Section 151 of the Code of Civil
Procedure, seeking to file counter claim during the pendency of
the case. Along with the said application, defendants 2 to 4 filed
counter claim under Order VIII Rule 6-A of the Code of Civil
Procedure. The defendant No.1 filed objection to IA.IX. The
Trial Court, after hearing the parties, by order dated 17 th
January, 2019, allowed IA.IX. Being aggrieved by the same,
defendant No.1 has preferred this writ petition.
4. Shri Ganesh S. Kalburgi, learned counsel appearing for
the petitioner contended that the impugned order dated 17 th
January, 2019 is without application of mind and contrary to law
declared by the Hon'ble Supreme Court in the case of ASHOK
KUMAR KALRA v. WING CDR. SURENDRA AGNIHOTRI AND
OTHERS reported in (2019)6 SCALE 544.
5. Per contra, Sri Mahantesh Patil, learned Counsel for the
respondents sought to justify the order impugned.
6. Heard the learned counsel appearing for the parties and
carefully considered the reasons assigned by the learned Judge,
which reads as under:
"Here in this case the applicant No.2 he was
not failed written statement within the stoplight
period on the last date of earring we have filed
written statement now the defendant file to counter
claim. Here in this case the defendant No. 1 LRs of
the plaintiff appears to be in collusion with eat
other. If the application is allowed, nor harm will
be cost to others said if the application not allowed
law full right of the defendant will be curtailed.
Hence from the above discussed reasons, I answer
point No.1 in the affirmative.(sic)"
7. Having taken note of the reasons assigned by the
learned Judge, it appears that impugned order passed by the
learned Judge is without looking into the factual aspects of the
case and the same reflects non-application of mind. With great
pain it I have to express that, the language employed by the
learned Judge while disposing of the application in IA.IX, needs
to be deprecated. Without expressing any opinion on the merits
of the impugned order, the writ petition is allowed and the
matter is remanded to the trial Court for fresh consideration in
the light of the judgment passed by the Hon'ble Supreme Court
in the case of ASHOK KUMAR KALRA (supra). All contentions of
the parties are kept open.
Additional Registrar General, of this Bench is requested to
send copy of this order to the learned Judge, who has rendered
the order 17th January, 2019 on OS No.74 of 2016.
Sd/-
JUDGE
lnn
