Smt.Vijayamma vs Sri.Nagaraja
2022 Latest Caselaw 3946 Kant

      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 08TH DAY OF MARCH, 2022

                         BEFORE

          THE HON'BLE MR. JUSTICE E.S. INDIRESH

      WRIT PETITION NO.52966 OF 2019 (GM-CPC)

BETWEEN

      1. SMT. VIJAYAMMA
         W/O LATE NARAYANA GOWNDAR
         AGED ABOUT 52 YEARS

      2. SRI MUNIYA
         S/O LATE NARAYANA GOWNDAR
         AGED ABOUT 33 YEARS

      3. SRI VENKATESHA
         S/O LATE NARAYANA GOWNDAR
         AGED ABOUT 33 YEARS

      4. SRI MANJA
         S/O LATE NARAYANA GOWNDAR
         AGED ABOUT 27 YEARS

        ALL ARE R/O GUNDI CHATNAHALLI VILLAGE
        HONNALI TALUK-577 217
        DAVANAGERE DISTRICT.
                                          ...PETITIONERS
(BY SRI V B SIDDARAMAIAH, ADVOCATE)

AND

      1. SRI NAGARAJA
         S/O LATE SUBRAMANI
         AGED ABOUT 46 YEARS
                            2




       R/O GUNDI CHATNAHALLI VILLAGE
       HONNALI TALUK-577 217
       DAVANAGERE DISTRICT.

     2. SRI KRISHNAPPA
        S/O LATE SUBRAMANI
        AGED ABOUT 41 YEARS
        R/O JOGA VILLAGE
        HONNALI TALUK-577 217
        DAVANAGERE DISTRICT.

     3. SRI TANJAPPA
        S/O LATE SUBRAMANI
        AGED ABOUT 46 YEARS
        R/O GUNDI CHATNAHALLI VILLAGE
        HONNALI TALUK-577 217
        DAVANAGERE DISTRICT.
                                         ....RESPONDENTS
(BY SRI PRASAD B S, ADVOCATE FOR R1;
NOTICE TO R2 AND 3 ARE DISPENSED WITH)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 25TH OCTOBER, 2019 PASSED BY THE COURT OF
THE SENIOR CIVIL JUDGE AND JMFC, HARIHARA AND
ITINERARY COURT, HONNALI IN MA.NO.21 OF 2017 VIDE
ANNEXURE-F WHICH IS FILED BY THE PETITIONERS AGAINST
THE ORDER DATED 05TH JULY, 2017 PASSED IN CIVIL MISC.
NO.13 OF 2014 BY THE PRINCIPAL CIVIL JUDGE AND JMFC AT
HONNALI VIDE ANNEXURE-D AND CONSEQUENTLY ALLOW THE
CIVIL MISC.NO.13 OF 2014 FILED BY THE PETITIONERS BEFORE
THE PRINCIPAL CIVIL JUDGE AND JMFC AT HONNALI, VIDE
ANNEXURE-B.

       THIS PETITION COMING ON FOR PRELMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
                                  3




                            ORDER

In this petition, petitioners have challenged the order

dated 25th October, 2019 passed by the Court of Senior Civil

Judge and JMFC, Harihara and itinerary Court Honnali, in MA

No.21 of 2017 (Annexure-F) and order dated 05th July, 2017 in

Civil Misc.No.13 of 2014 on the file of the Principal Civil Judge

and JMFC at Honnali (Annexure-D).

2. The brief facts for the adjudication of this petition are

that respondent No.1 herein is the plaintiff in Original Suit No.93

of 2001 on the file of the Civil Judge (Jr. Dn.) at Honnali, seeking

partition and separate possession in respect of the suit schedule

property. The said suit came to be decreed by judgment and

decree dated 18th June, 2005. In the meanwhile, the defendant

No.2 died on 02nd May, 2009. It is the case of the petitioners

that they have approached the Principal Civil Judge and JMFC,

Honnali in C.Misc No.13 of 2004, seeking to set aside the ex-

parte judgment and decree dated 18th June, 2005 in Original Suit

No.93 of 2001 and the same petition came to be dismissed by

the trial Court on 05th July, 2017. Feeling aggrieved by the

same, petitioners filed MA No.21 of 2017 on the file of the Senior

Civil and JMFC Court, Harihara (itinerary Court Honnali) and the

said appeal came to be dismissed confirming the order dated

05th July, 2014 passed in C.Misc. No.13 of 2014. Being

aggrieved by the judgment and decree passed by the courts

below the legal representatives of the defendant No.2 in Original

Suit No.93 of 2001 have preferred this writ petition.

3. I have heard Sri V.B. Siddaramaiah, learned counsel

appearing for the petitioners and Sri Prasad B.S., learned

counsel appearing for the respondent.

4. Having heard the learned counsel appearing for the

parties and taking into consideration the finding recorded by the

courts below, it is not in dispute that the suit in OS No.93 of

2001 has been filed by the respondent No.1 herein seeking

partition and separate possession in respect of the suit schedule

property which came to be decreed by judgment and decree

dated 18th June, 2005. It is the case of the petitioners herein

that they are the legal representatives of the defendant No.2,

who died on 02nd May, 2009 and the petitioners herein were not

aware about the proceedings in Original Suit No.93 of 2001 and

according to them, they ought to have been heard in the matter

and as such, they have filed C.Misc. No.13 of 2014 under Order

IX Rule 13 of Code of Civil Procedure. Factually, perusal of writ

papers would indicate that defendant No.2 has entered

appearance and filed written statement however, he has not

adduced evidence. Perusal of the judgment and decree passed

by the trial Court would indicate that the trial Court has held that

the plaintiff is entitled for one-fourth share in the suit schedule

property, so also, held that defendants 1 to 3 are also entitled

for one-fourth share each in all the suit schedule property. It is

the case the petitioners that they are not aware about the

proceedings in Original Suit No.93 of 2001 and accordingly, they

have filed Miscellaneous application. Apparently, the petitioners

herein, who claim to the legal representatives of defendant No.2,

ought to have challenged the judgment and decree passed in

Original Suit No.91 of 2001, however, they have approached the

incompetent Court by filing C.Misc. No.13 of 2014 under Order

IX Rule 13 of Code of Civil Procedure which came to be affirmed

by the First Appellate Court. In that view of the matter, I am of

the view that there is no error in the impugned order passed by

courts below. Writ petition is accordingly dismissed.

5. However, liberty is reserved to the petitioners herein to

challenge the judgment and decree in Original Suit No.93 of

2001, if they are so advised.

Sd/-

JUDGE

lnn