Karnataka High Court
Sri A.Lingaiah vs Jayanthi on 28 June, 2022
Bench: B.M.Shyam Prasad
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO.1199/2020 (CPC)
BETWEEN:
1. SRI A.LINGAIAH
AGED 66 YEARS,
S/O SRI ACHHAYYA,
2. SMT. LAKSHMI
AGED ABOUT 57 YEARS
W/O SRI A LINGAIAH,
BOTH ARE R/O NO.28,
21ST MAIN ROAD, J.C.NAGAR,
BENGALURU - 560 086.
... APPELLANTS
(BY SRI. R. S. HEGDE, ADVOCATE)
AND:
1. SMT. JAYANTHI
AGED 45 YEARS,
W/O SRI VISHAKANTHE GOWDA A C
R/AT RANGANNA BUILDING
OLD POST OFFICE ROAD
YELAHANKA
BENGALURU - 560 064.
2. SMT. MANCHAMMA
AGED 65 YEARS,
-2-
W/O SUBBE GOWDA,
R/O YEDAGANAHALLI VILLAGE
CHIKKARASINAKERE HOBLI
MADDUR TALUK
MANDYA DISTRICT.
3. SMT.BHARATHI
AGED ABOUT 50 YEARS
R/AT NO.27, 16TH C MAIN ROAD,
J.C. NAGAR KURUBARHALLI,
BENGALURU.
... RESPONDENTS
(BY SRI. N.V. VASANTH, ADVOCATE FOR R1 TO R3)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(na) OF CPC, AGAINST THE ORDER DATED
27.08.2019 PASSED IN P.MIS NO.33/2014 ON THE FILE OF THE XV
ADDITIONAL CITY CIVIL AND SESSIONS, JUDGE, BENGALURU (CCH
NO.3), DISMISSING THE PETITION FILED U/O.33 RULE 1 OF CPC.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants have called in question the order dated
27.08.2019 in P.MIS No.33/2014 on the file of the XV
Additional City Civil and Sessions Judge, Bengaluru (for
short, 'the civil Court'). The civil Court by this impugned
order has rejected the appellants' application under Order
XXXIII Rule 1 the of Code of Civil Procedure, 1908.
2. The appellants have filed the afore proceedings
for leave to conduct the suit as indigent persons asserting
that the original respondents [the first and second
respondents] have fabricated certain documents and
trespassed into their property and as such, they would be
entitled for declaration as against certain documents and
for possession. Insofar as their plea to sue as indigent
persons, the appellants have contended that they do not
hold any property and they do not have the means to pay
Court fee which would be more than Rs.70,000/-.
3. The original respondents have contested this
application asserting that the first appellant runs a
commercial establishment in one of the prime localities in
Bengaluru and earns more than Rs.2,000/- per day. These
respondents have also contended that the first appellant
has transferred one of his properties for a valuable
consideration for more than Rs.25,00,000/- and that the
first appellant owns ancestral properties. They have
mentioned certain survey numbers of the lands in
Ankanathapura, Maddur Taluk, Mandya District to bolster
their defense.
4. The civil Court has rejected the appellants'
application and closed the proceedings opining that the
appellants have suppressed material facts. The civil Court
has opined that though the first appellant has contended
that he is unemployed, he has admitted in his cross
examination that he is working, and that this admission
largely belies his case of being an indigent person. The civil
Court has also considered the first appellant's admission
that his family owns ancestral properties in
Ankanathapura, Maddur Taluk, Mandya District and that
he is yet to receive certain consideration from the sale of
one of the properties in favor of his daughter.
5. Sri. R.S.Hegde, the learned counsel for the
appellants, submits that he will canvass that appellants are
aggrieved by the civil Court's order on two counts. The
learned counsel submits that his first submission is that
the transfer, which is referred to by the civil Court, is much
prior to the initiation of the present proceedings and
therefore could not have been relied upon. There is no
partition amongst the joint family members and as such,
an undivided share in the ancestral properties would not be
material.
6. Sri. R.S.Hegde's next submission is that even if
the civil Court could opine that the appellants have failed to
prove that they are indigent persons, it should have
extended an opportunity to the appellants to prosecute the
case with sufficient time to pay the Court fee.
Sri. N.V.Vasanth, learned counsel for the respondents does
not contest the second ground viz., that the appellants
should have been granted an opportunity to pay Court fee,
but resists the grounds urged on the appellants' case as
indigent persons.
7. On perusal of the civil Court's reasoning and the
material on record, this Court must opine that the
appellants do not satisfy mandatory requirements to be
permitted to prosecute their suit as indigent persons and
there cannot be any interference in this regard. However,
there is considerable force in the other submission that the
appellants should have been granted reasonable time to
pay proper Court fee and the suit could not have been
truncated without such opportunity.
8. At this stage, Sri. R.S.Hegde relying upon
certain photographs, submits that the respondents are
taking undue advantage and have commenced
construction. He argues that the property was vacant as of
the date of the commencement of the proceedings before
the civil Court as also the present appeal, and if there is
construction and further alienation, the appellants would
be put to irreparable loss and injury. Responding to this
canvass, Sri. N.V.Vasanth submits that the construction
could be made subject to the final decision in the suit. This
submission is taken on record. For the foregoing, the
following:
ORDER
a. The appeal is allowed in part.
b. The proceeding before the civil Court is
restored for registration as a suit with leave
to the appellants to pay Court fee within four
[4] weeks from the date of first appearance
consequence to this restoration.
c. The parties shall appear before the civil
Court without further notice on 01.08.2022,
and the appellants shall also be at liberty to
make necessary application to bring the
third respondent on record in such suit.
d. The construction by the contesting respondents
in the subject property shall be subject to the
final decision in the suit.
SD/-
JUDGE
RB
