Karnataka High Court
Sri T S Srinivasa Murthy vs Sri G Muniswamy on 17 February, 2022
Bench: K.S.Mudagal
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
WRIT PETITION No.20261/2021 (GM-CPC)
C/w
WRIT PETITION No.22319/2021 (GM-CPC),
WRIT PETITION No.22320/2021 (GM-CPC)
In W.P.No.20261/2021
BETWEEN:
SRI T.S.SRINIVASA MURTHY
AGED ABOUT 64 YEARS
S/O T.N. SUBBAIAH
PRESENTLY RESIDING AT
FLAT NO.H/02/02
2ND FLOOR, H.BLOCK, (TAISHA)
ALL INDIA SERVICE OFFICERS QUARTERS
WEST NATESAN NAGAR
VIRUGAMBAKKAM
CHENNAI - 600 092
REPRESENTED BY
POWER OF ATTORNEY HOLDER
SRI. P.S. RANGAAVITTALAN
AGED ABOUT 87 YEARS
S/O LATE K.N.SUBBA RAO
R/AT FLAT NO.H/02/02
2ND FLOOR, H.BLOCK (TAISHA)
ALL INDIA SERVICE OFFICERS QUARTERS
WEST NATESAN NAGAR
VIRUGAMBAKKAM
CHENNAI - 600 092
... PETITIONER
(BY SRI. S.RAJASHEKAR, ADV.)
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
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AND:
1. SRI G. MUNISWAMY
AGED ABOUT 57 YEARS
S/O LATE SHIVALINGAIAH
R/AT SINGASANDRA VILLAGE
BEGUR HOBLI
BANGALORE SOUTH TALUK - 560 068
2. SRI NARAYANAPPA
AGED ABOUT 69 YEARS
S/O LATE PUTTAPPA
R/AT KASUVANAHALLI VILLAGE
CARMELRAM POST, VARTHUR HOBLI
BANGALORE SOUTH TALUK
BANGALORE - 560 035
3. SRI VENKATESH
AGED ABOUT 64 YEARS
S/O NARAYANAPPA
R/AT KASUVANAHALLI VILLAGE
CARMELRAM POST, VARTHUR HOBLI
BANGALORE SOUTH TALUK
BANGALORE - 560 035
4. SRI PUTTARAJ
AGED ABOUT 60 YEARS
S/O NARAYANAPPA
R/AT KASUVANAHALLI VILLAGE
CARMELRAM POST, VARTHUR HOBLI
BANGALORE SOUTH TALUK
BANGALORE - 560 035
5. SRI SRINIVAS
AGED ABOUT 58 YEARS
S/O NARAYANAPPA
R/AT KASUVANAHALLI VILLAGE
CARMELRAM POST, VARTHUR HOBLI
BANGALORE SOUTH TALUK
BANGALORE - 560 035
SRI SRINIVASA
AGED ABOUT 83 YEARS
(DELETED AS PER AMENDED PLAINT)
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
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6. SRI RAJAPPA
AGED ABOUT 73 YEARS
S/O LATE PUTTAPPA
R/AT KASUVANAHALLI VILLAGE
CAMELRAM POST, VARTHUR HOBLI
BANGALORE SOUTH TALUK
BANGALORE - 560 035
7. SRI V. MUNIRAJU
AGED ABOUT 60 YEARS
S/O SRI VENKATAGIRIYAPPA
R/AT IBBLUR VILLAGE, BEGUR HOBLI
BANGALORE - 560 034
NOTE:
DEFENDANT NO.9 PASSED AWAY
DURING PENDENCY OF SUIT
HENCE NOT MADE PARTY TO THE
PRESENT WRIT PETITION
... RESPONDENTS
(BY SMT. S.SUSHEELA, SENIOR COUNSEL FOR
SRI. AKASH V.T., ADVOCATE FOR C/R1;
VIDE ORDER DATED 21.12.2021 NOTICE
TO R3 TO R6 IS DISPENSED WITH;
SRI. GIRISH KUMAR B.M., ADVOCATE FOR R2;
SRI. N. VAGEESHA, ADVOCATE FOR R7)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DATED 21.08.2021 IN O.S.NO.5066/2008
PASSED BY THE HON'BLE XXVII ADDITIONAL CITY CIVIL
JUDGE, BENGALURU CITY, IS NOT PERMITTING PARAS 2, 3,
4 AND 5 OF THE REPLICATION/REJOINDER FILED BY
PLAINTIFF/PETITIONER HEREIN, AT ANNEXURE-A AND ETC.
IN W.P. NO. 22319/2021
BETWEEN:
SMT. SMITA PRASAD KUMAR
AGED ABOUT 71 YEARS
W/O SRI PRASAD MAHADEVA KUMAR
R/AT G002, H.M. WINSFORD, 3F
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
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7 C MAIN, 3RD BLOCK
KORAMANGALA
BANGALORE - 560 034
REP. BY POWER OF ATTORNEY HOLDER
SRI P.S. RANGAAVITTALAN
AGED ABOUT 87 YEARS
S/O LATE K.N. SUBBA RAO
R/AT FLAT NO.H/02/02
2ND FLOOR, H.BLOCK, (TAISHA)
ALL INDIA SERVICE OFFICERS QUARTERS
WEST NATESAN NAGAR
VIRGUMBAKKAM
CHENNAI - 600 092
... PETITIONER
(BY SRI.S.RAJASHEKAR, ADV.)
AND:
1. SRI G. MUNISWAMY
AGED ABOUT 57 YEARS
S/O LATE SHIVALINGAIAH
R/AT SINGASANDRA VILLAGE
BEGUR HOBLI
BANGALORE SOUTH TALUK
2. SRI NARAYANAPPA
AGED ABOUT 69 YEARS
S/O LATE PUTTAPPA
R/AT KASUVANAHALLI VILLAGE
CARMELRAM POST, VARTHUR HOBLI
BANGALORE SOUTH TALUK
BANGALORE - 560 035
3. SRI VENKATESH
AGED ABOUT 64 YEARS
S/O NARAYANAPPA
R/AT KASUVANAHALLI VILLAGE
CARMELRAM POST, VARTHUR HOBLI
BANGALORE SOUTH TALUK
BANGALORE - 560 035
4. SRI PUTTARAJ
AGED ABOUT 60 YEARS
S/O NARAYANAPPA
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
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R/AT KASUVANAHALLI VILLAGE
CARMELRAM POST, VARTHUR HOBLI
BANGALORE SOUTH TALUK
BANGALORE - 560 035
5. SRI SRINIVAS
AGED ABOUT 83 YEARS
S/O NARAYANAPPA
R/AT KASUVANAHALLI VILLAGE
CARMELRAM POST, VARTHUR HOBLI
BANGALORE SOUTH TALUK
BANGALORE - 560 035
6. SRI RAJAPPA
AGED ABOUT 73 YEARS
S/O LATE PUTTAPPA
R/AT KASUVANAHALLI VILLAGE
CAMELRAM POST, VARTHUR HOBLI
BANGALORE SOUTH TALUK
BANGALORE - 560 035
7. SRI V. MUNIRAJU
AGED ABOUT 60 YEARS
S/O SRI VENKATAGIRIYAPPA
R/AT IBBLUR VILLAGE, BEGUR HOBLI
BANGALORE - 560 034
8. SRI K.NAGESH RAO K. TILAK
AGED ABOUT 84 YEARS
S/O LATE T.KRISHNAPPA
R/AT NO.655, 14TH CROSS
30TH MAIN, J.P.NAGAR I PHASE
BENGALURU - 560 078
9. GEETHA N. TILAK
AGED ABOUT 79 YEARS
S/O LATE T.KRISHNAPPA
R/AT NO.655, 14TH CROSS
30TH MAIN, J.P.NAGAR I PHASE
BENGALURU - 560 078
10. SMT. NIVEDITHA KUMAR
AGED ABOUT 55 YEARS
S/O LATE T.KRISHNAPPA
R/AT NO.655, 14TH CROSS
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
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30TH MAIN, J.P.NAGAR I PHASE
BENGALURU - 560 078
... RESPONDENTS
(BY SMT S.SUSHEELA, SENIOR ADVOCATE FOR
SRI AKASH V.T., ADVOCATE FOR C/R1;
SRI GIRISH KUMAR B.M., ADVOCATE FOR R2;
SRI N.VAGEESHA, ADVOCATE FOR R7;
VIDE ORDER DATED 21.12.2021, NOTICE TO
R3 TO R6 AND R8 TO R10 IS DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING SET ASIDE THE
ORDER DATED 21.08.2021 IN O.S.NO.4677/2012 PASSED BY
THE HON'BLE XXVII ADDITIONAL CITY CIVIL JUDGE,
BENGALURU CITY IS NOT PERMITTING PARAS 2, 3, 4, 5 OF
THE REPLICATION/REJOINDER FILED BY
PLAINTIFF/PETITIONER HEREIN AT ANNEXURE-A AND ETC.
IN W.P. NO. 22320/2021
BETWEEN:
SRI P.S. RANGAVITTALAN
AGED ABOUT 87 YEARS
S/O LATE K.N.SUBBA RAO
R/AT FLAT NO.H/02/02
2ND FLOOR, H.BLOCK, (TAISHA)
ALL INDIA SERVICE OFFICERS QUARTERS
WEST NATESAN NAGAR
VIRUGAMBAKKAM
CHENNAI - 600 092
... PETITIONER
(BY SRI S.RAJASHEKAR, ADV.)
AND:
1. SRI G.MUNISWAMY
AGED ABOUT 57 YEARS
S/O LATE SHIVALINGAIAH
R/AT SINGASANDRA VILLAGE
BEGUR HOBLI
BANGALORE SOUTH TALUK
2. SRI NARAYANAPPA
AGED ABOUT 69 YEARS
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
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S/O LATE PUTTAPPA
R/AT KASUVANAHALLI VILLAGE
CARMELRAM POST, VARTHUR HOBLI
BANGALORE SOUTH TALUK
BANGALORE - 560 035
3. SRI VENKATESH
AGED ABOUT 64 YEARS
S/O NARAYANAPPA
R/AT KASUVANAHALLI VILLAGE
CARMELRAM POST, VARTHUR HOBLI
BANGALORE SOUTH TALUK
BANGALORE - 560 035
4. SRI PUTTARAJ
AGED ABOUT 60 YEARS
S/O NARAYANAPPA
R/AT KASUVANAHALLI VILLAGE
CARMELRAM POST, VARTHUR HOBLI
BANGALORE SOUTH TALUK
BANGALORE - 560 035
5. SRI SRINIVAS
AGED ABOUT 58 YEARS
S/O NARAYANAPPA
R/AT KASUVANAHALLI VILLAGE
CARMELRAM POST, VARTHUR HOBLI
BANGALORE SOUTH TALUK
BANGALORE - 560 035
SRI SRINIVASAPPA
AGED ABOUT 83 YEARS
(DELETED AS PER AMENDED PLAINT
AS PER ANNEXURE-G)
6. SRI RAJAPPA
AGED ABOUT 73 YEARS
S/O LATE PUTTAPPA
R/AT KASUVANAHALLI VILLAGE
CAMELRAM POST, VARTHUR HOBLI
BANGALORE SOUTH TALUK
BANGALORE - 560 035
7. SRI V. MUNIRAJU
AGED ABOUT 60 YEARS
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
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S/O SRI VENKATAGIRIYAPPA
R/AT IBBLUR VILLAGE, BEGUR HOBLI
BANGALORE - 560 034
DEFENDANT NO.9 PASSED AWAY
DURING PENDENCY OF SUIT.
HENCE NOT MADE PARTY TO THE
PRESENT WRIT PETITION
... RESPONDENTS
(BY SMT. S.SUSHEELA, SENIOR COUNSEL FOR
SRI. AKASH V.T., ADVOCATE FOR C/R1;
VIDE ORDER DATED 21.12.2021 NOTICE
TO R3 TO R6 IS DISPENSED WITH;
SRI. GIRISH KUMAR B.M., ADVOCATE FOR R2;
SRI. N. VAGEESHA, ADVOCATE FOR R7)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DATED 21.08.2021 IN O.S.NO.5067/2008
PASSED BY THE HON'BLE XXVII ADDITIONAL CITY CIVIL
JUDGE, BENGALURU CITY, IS NOT PERMITTING PARAS 2, 3,
4 AND 5 OF THE REPLICATION/REJOINDER FILED BY
PLAINTIFF/PETITIONER HEREIN VIDE ANNEXURE-A AND ETC.
THESE WRIT PETITIONS COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
It is brought to the notice of the Court that in the
cause title of the petitions, name of father of
defendant/respondent Nos.3 to 5 is wrongly mentioned.
Learned counsel for the petitioners is permitted to
correct the same in accordance with cause title in the
impugned order.
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
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2. In these petitions, the plaintiffs in
O.S.Nos.5066/2008, 4677/2012 and 5067/2008 call in
question the interim order passed by the XXVII
Additional City Civil Judge, Bengaluru.
3. The particulars of case, order and
application are setout in the table below:
Parties who
Sl Interim Impugned
W.P.No. O.S.No.preferred
No. application order
petition
1. 20261/2021 5066/2008 Plaintiff Partly 21.08.2021
allowing the
rejoinder filed
by the
plaintiff
2. 22319/2021 4677/2012 Plaintiff Dismissing 20.11.2021
the memo
3. 22320/2021 5067/2008 Plaintiff Dismissing 20.11.2021
the memo
4. For the purpose of convenience, parties will
be referred to henceforth according to their ranks before
the trial Court.
5. Defendant No.2 Narayanappa and his
brothers acquired Sy.No.15/3 in all measuring 6 acres
of Kasavanahalli Village under registered sale deed
dated 29.05.1961. Defendant Nos.3 to 5 are the sons
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
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of defendant No.2. Plaintiffs claim that defendant No.2
and his brothers formed a layout in 3 acres out of 6
acres in Sy.No.15/3.
6. Defendant No.2 and his brothers sold the
sites shown in the chart below to the plaintiffs under the
registered sale deeds as mentioned below:
Sl. Site date of
W.P.No. O.S.No.
No. No. Sale deed
1. 20261/2021 5066/2008 68 11.01.1993
64/B &
2. 22319/2021 4677/2012 26.09.1998
64/C
3. 22320/2021 5067/2008 69 24.12.1992
7. They claim that after such sale, defendant
Nos.2 to 5 created an agreement of sale in favour
defendant No.1 in respect of the same land. Defendant
No.1 filed O.S.16326/2006 on the basis of said
agreement of sale of 1991 against defendant Nos.2 to 5
before XXVIII Additional City Civil Court, Bengaluru for
specific performance of agreement of sale.
8. In that suit, defendant Nos.1 to 5 entered
into compromise. Defendant Nos.2 to 5 agreed to
execute sale deed in favour of defendant No.1.
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
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O.S.No.16326/2006 was accordingly decreed in favour
of defendant No.1 for specific performance.
9. Subsequently, defendant No.1 filed
Execution Petition No.15149/2006 for execution of the
decree in O.S.No.16326/2006. Defendant Nos.2 to 5
did not contest. Ultimately, in that execution petition,
registered sale deed was executed in favour of
defendant No.1 through Court Commissioner on
27.02.2007.
10. Plaintiffs filed the above suit claiming that
defendant Nos.1 to 8 having sold the sites out of
Sy.No.15/3 and putting them in possession, to make
wrongful gain have created subsequent sale deed
playing fraud on the Court. They sought decree for
permanent injunction.
11. Defendant Nos.1 to 5 and 8 filed written
statement in the said suit contesting the claim of the
plaintiffs. Defendant Nos.2 to 8 disputed the execution
of the power of attorney in favour of defendant No.8
and ultimately, validity of the document executed by
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
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him. Defendant Nos.1 to 5 disputed the possession of
the plaintiffs. Defendant No.8 in his written statement
admitted only the presentation of the sale deed for
registration and denied all other pleadings of the
plaintiff.
12. During pendency of the suits, the trial Court
granted temporary injunction in favour of the plaintiffs.
That order was challenged before this Court in MFA
No.2302/2009. That matter was remanded to the trial
Court.
13. Simultaneously in O.S.No.4677/2012
Muniraju, general power of attorney holder was arrayed
as defendant No.7. In the said suit, he had sought
amendment of his written statement. The trial Court
rejected that on 20.04.2017. He challenged that order
before this Court in W.P.No.30036/2017 (GM-CPC).
This Court vide order dated 16.09.2019 partially allowed
that writ petition granting permission to amend his
written statement to the effect that sale deeds executed
by him as a power of attorney holder are valid.
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
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Muniraju amended his written statement in view of the
order in the above writ petition.
14. Plaintiff in O.S.No.5066/2008 sought
amendment of the plaint on the ground that during
pendency of the suit, defendant No.1 dispossessed him
forcibly. Plaintiffs introduced paragraphs 14(a) to 14(h)
and prayer at Sl.Nos.3 to 7. By way of amendment,
plaintiffs sought declaration of his title, mandatory
injunction for demolition of construction put up by
defendant No.1, possession of the property and
declaration that judgment in O.S.No.16326/2006 does
not bind him and sale deed dated 27.02.2007 is null and
void.
15. To such amended plaint, defendant No.8
filed subsequent pleadings under Order VIII Rule 9 CPC.
The trial Court rejected the said subsequent pleadings.
Defendant No.8 challenged that order in
W.P.No.33204/2017 and connected matter. This Court
vide Annexure-K dated 16.09.2019 dismissed the writ
petition with small indulgence in para 3 as follows:
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
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"Sentence shall be deemed have been added to the
effect that the Sale Deeds allegedly executed by the
petitioner on the strength of the subject powers of
attorney are genuine and valid, and that the pleadings
shall accordingly be construed".
16. After such order, defendant No.8 amended
the written statement incorporating para 11 in the
written statement to the effect that sale deed executed
by him as power of attorney holder of defendant No.2
and his brothers Srinivasa, Rajappa, Venkatachalapathi
and Muniveeramma are legal and valid and convey title
to the purchasers.
17. In response to such amended written
statement, plaintiffs filed subsequent pleadings
containing in all 8 paragraphs. The said subsequent
pleadings were opposed by defendant Nos.1 and 2 by
filing their statement of objections.
18. The trial Court by order dated 20.12.2019
rejected the objections of contesting defendants,
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
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received rejoinder/subsequent pleadings. That order
was challenged before this Court in W.P.Nos.4903/2020,
4868/2020 and 5410/2020. This Court vide order at
Annexure-P dated 10.03.2020 held that any subsequent
pleadings can be permitted only in terms of the
judgment of this Court in M/S Amalgamated Bean
coffee trading Cl.Ltd. Vs Zarir Minoo Bharucha and
Another1
19. This Court after holding that the trial Court
failed to examine the replication/reply to the written
statement of defendant No.8 and the objections of
defendant No.1, in the light of the said judgment, set
aside the order and remanded the matter to the trial
Court for reconsideration in the light of the observations
made therein.
20. On such remand, on hearing the parties, the
trial Court by the impugned order in
W.P.No.20261/2021 (O.S.No.5066/2008) partly allowed
the rejoinder. The trial Court rejected paras 2 to 5 of
ILR 2005 KAR 2089
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
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the rejoinder and received on record only paras 6 to 8
of the rejoinder.
21. During the course of that order, the trial
Court held that clarification made out in paras 6 to 8 of
the rejoinder are required for the plaintiffs to
substantiate their title and paras 2 to 5 of the rejoinder
were contrary to the original pleadings.
22. It is pertinent to mention that in the similar
fashion, some other persons also had filed suits claiming
that Muniraju as a general power of attorney holder of
defendant Nos.2 to 5 had sold sites carved out of
Sy.No.15/3 and subsequently, defendant Nos.2 to 5
have sold same property to defendant No.1. The extent
of the land sold to defendant No.1 under the decree for
specific performance for was one acre in Sy.No.15/3.
23. Above said other suits were registered in
O.S.Nos.4306, 5448, 6192, 5185, 5102/2007 and
O.S.No.5909/2012. Defendant No.1 filed
O.S.No.5880/2008 against purchasers of the sites and
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
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others seeking permanent injunction. All those suits
were clubbed for disposal and listed before the trial
Court.
24. Plaintiffs in O.S.No.4677/2012 and
O.S.No.5067/2008 filed memo claiming that no orders
are passed on his replication/additional pleadings and
sought for the orders. The trial Court by the order
dated 20.11.2021 dismissed the said memo holding that
in the connected matter, already it has considered the
rejoinder of the plaintiffs, since matters are already
clubbed, whatever order is passed in the connected
matter is applicable to the replication filed in other two
suits. Those orders are called in question in
W.P.Nos.23319 and 23320/2021.
Submissions of Sri.Rajashekar, learned
counsel for the petitioners:
25. Defendant No.8 by way of amendment took
totally u-turn to his earlier pleadings. Therefore, it was
necessary for the plaintiffs to reply such pleadings by
filing replication. Paras 2 to 5 of the pleadings in no
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
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way explain to the earlier pleadings. They were only
clarificatory. There was collusion between defendant
Nos.1 to 8. Therefore, plaintiffs were required to
explain all these things.
Submissions of Smt.S.Susheela, learned
Senior counsel appearing for Sri Akash.V.T.,
learned Counsel for respondent No.1/defendant
No.1 on record:
26. This Court in W.P.No.33204/2017 C/W
W.P.No.33205/2017 and W.P.No.30036/2017 confined
defendant No.8, only to the validity of the sale deed
executed by him. Whatever defendant No.8 had
admitted by way of amendment was sought to be
demolished by way of additional pleadings. Thereby
plaintiffs are trying to circumvent the above order of
this Court. The trial Court has rightly considered the
matter as per terms of the order of this Court in
W.P.No.4903/2020 and connected matters. Plaintiffs
did not object the application of defendant No.8 to
amend his pleadings. That itself shows that plaintiffs
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
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and defendant No.8 are colluding with each other.
Amended written statement of defendant No.8 is in fact
in favour of the plaintiffs. Subsequent pleadings cannot
transverse beyond what is admissible under Order VIII
Rule 9 CPC. Paras 2 to 5 of the rejoinder were contrary
to the original pleadings in the suit.
27. Sri. Girish Kumar B.M., learned counsel for
respondent No.2 and Sri. N.Vageesha, learned counsel
for respondent No.7 have adopted the submissions of
learned senior counsel.
28. Having regard to the submissions and
material on record the following point arises for
consideration:
'Whether the impugned orders suffer
jurisdictional error?"
Analysis-Reg.W.P.No.20261/2021:
29. Pleadings in question themselves were
styled as subsequent pleadings/replication. Thereby
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
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they invoked Order VIII Rule 9 of CPC to the relating to
subsequent pleadings.
30. Order VIII Rule 9 CPC reads as follows:
"9. Subsequent pleadings. - No
pleading subsequent to the written
statement of a defendant other than by way
of defence to set-off or counter-claim shall
be presented except by the leave of the
Court and upon such terms as the Court
thinks fit; but the Court may at any time
require a written statement or additional
written statement from any of the parties and
fix a time of not more than thirty days for
presenting the same".
Reading of the above provision goes to show that
no pleading subsequent to the written statement of a
defendant other than by way of defence to set off or
counter claim is permissible. The only exception is that
party can do so with the leave of the Court.
31. Under what circumstance subsequent
pleadings can be permitted was dealt with by this Court
in para 10 of the judgment in M/S Amalgamated case
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
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referred to supra. It was held that following four tests
shall be satisfied in considering rejoinder:
(1) Rejoinder shall be made only for denying or
clarification as stated in the written
statement.
(2) Fresh cause of action or fresh case is not
brought about by filing replication.
(3) That shall be only clarificatory in nature.
(4) Replication cannot be allowed to take away
admission made in the plaint.
32. This Court directed the trial Court to
consider the replication in the light of the aforesaid
principles. The plaintiffs filed the replication in response
to the amendment carried out by defendant
No.8/Muniraju in his written statement. Interestingly
plaintiffs did not oppose the said amendment to the
written statement.
33. By way of amendment, defendant No.8
pleaded that he has executed sale deed in favour of the
plaintiffs as power of attorney holder of defendant No.2
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
M
to 5 and the said sale deeds are valid and transferred
the title to the plaintiffs. It was case of the plaintiffs
that defendant Nos.2 to 5 executed sale deed through
their power of attorney holder Muniraju/defendant No.8,
thereby they have acquired title over the property
transferred to them. Therefore, there was nothing for
them to clarify by way of replication. However, the trial
Court permitted paragraphs 1 and 6 to 8 of rejoinder
saying that they are clarificatory in nature. That order
has attained finality.
34. What is sought to be pleaded by way of
paragraphs 2 to 5 of the rejoinder was some other
peripheral things. As rightly pointed out by
Smt.Susheela, learned senior counsel, all these things
were within the knowledge of the plaintiffs when they
filed the suit. They could have pleaded that in the plaint
while filing the suit itself.
35. The order permitting subsequent pleadings
under Order VIII Rule 9 CPC is discretionary order.
Unless it is shown that such order suffers vice of
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
M
arbitrariness or perversity, the same cannot be
interfered.
36. Learned counsel for the petitioners submits
that observations of the trial Court that such pleadings
were inconsistent with the original pleadings may come
in his way of leading evidence. Even if that observation
is eschewed, paragraphs 2 to 5 of the rejoinder did not
fall under the principles laid down in M/S
Amalgamated case. Therefore, the impugned order in
W.P.No.20261/2021 does not warrant any interference.
Reg W.P.No.22319/2021 and W.P.No.22320/2021.
37. Similar rejoinders were pending in
O.S.Nos.5067/2008 and 4677/2012. This Court in
W.P.No.4903/2020 and connected matters, remanded
all the matters with a specific direction that the
additional pleadings shall be considered in the light of
the observations made therein. However, the trial
Court considered the matter only in O.S.No.5066/2008
and had not considered the matters in other two
connected suits.
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
M
38. The trial Court rejected the memos of the
plaintiffs in those suits to consider the matter, on the
ground that it has already passed orders in
O.S.No.5066/2008, since all the maters are clubbed in
3674/2007 whatever order is passed earlier is applicable
to the other two suits also.
39. Consolidation of suits is for the purpose of
leading common evidence and passing common
judgment to avoid multiplicity of the proceedings and
cut down costs and delay. There cannot be consolidation
of suits for the purpose of pleadings. Pleading in all the
suits have to be independent. Therefore, the trial Court
should have decided the replication in the other suits.
Consequently, the trial Court ought to have considered
the memo independently more so when there was
direction of this Court to do so in W.P.No.33204/2017
and connected matter. Therefore it has to be held that
in dismissing the memo, the trial Court committed
jurisdictional error.
W.P.NO.20261/2021 C/W
W.P.NO.22319/2021 &
W.P.NO.22320/2021
M
ORDER
For the aforesaid reasons, Writ Petition
No.20261/2021 is hereby dismissed. However, it is
made clear that, observations of the trial Court that the
pleadings in paragraphs 2 to 5 were contrary to the
original pleadings is confined to the said order. During
trial of the matter, the trial Court should not get
influenced by such observations.
W.P.Nos.22319/2021 and 22320/2021 are hereby
allowed. The impugned order in W.P.Nos.22319/2021
and 22320/2021 are hereby quashed. The trial Court is
hereby directed to consider the memos in those suits in
accordance with law.
Since original matters are of the year 2008,
parties shall go on with the matter on day to day basis.
The trial Court shall decide the matter as expeditiously
as possible after giving reasonable opportunity to both
the parties. Parties shall also co-operate for disposal of
the matter.
Sd/-
JUDGE
pgg
