Karnataka High Court

Sri B L Prakash vs Smt B L Kamala on 17 March, 2022

Bench: E.S.Indiresh

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 17TH DAY OF MARCH 2022

                         BEFORE

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

        WRIT PETITION NO.21224 OF 2021(GM-CPC)

BETWEEN:

SRI. B.L PRAKASH
S/O LATE SRI. K.N, LAKKAPPA
AGED ABOUT 64 YEARS
R/AT NO 404, 2ND BLOCK,
7TH MAIN, JAYANAGAR,
BENGALURU 560 011.
                                         ... PETITIONER

(BY SRI.R.B. SADASIVAPPA., ADVOCATE)

AND:

1.     SMT B.L KAMALA,
       W/O DR. D.R GOVINDA RAJU
       AGED ABOUT 63 YEARS
       R/AT NO 4, MARSHALL ROAD
       LEXINGTON,MA 02420
       REP. BY GPA HOLDER
       SMT P.S REKHA RANI
       R/AT 69/A, 31ST CROSS,
       7TH BLOCK, JAYANAGAR
       BENGALURU 560 082.

2.     SRI. B.L SRINIVAS
       S/O LATE SRI. K.N LAKKAPPA
       AGED ABOUT 65 YEARS
       R/AT NO.404, 7TH MAIN,
       2ND BLOCK, JAYANAGAR
       BENGALURU 560 011.
                              2



3.   SRI B.L.KANTHARAJ
     S/O LATE K.N LAKKAPPA
     AGED ABOUT 63 YEARS
     R/AT 69/A, 31ST CROSS
     7TH BLOCK, JAYANAGAR
     BENGALURU 560 082.

4.   SMT. BANGARAMMA
     W/O LATE SRI K.N LAKKAPPA
     AGED ABOUT 84 YEARS
     R/T NO 404, 7TH MAIN,
     2ND BLOCK JAYANAGAR
     BENGALURU 560 011.

5.   SRI. H SADANANDA HANDE
     S/O LATE SRI PATEL RAMADEVA HANDE
     NO 28, 12TH MAIN, 3RD BLOCK
     JAYANAGAR EXTENSION
     BENGALURU 560 011
     (DIED BUT HIS LRS ARE NOT YET BROUGHT ON
     RECORD)

6.   MS B GRHITA RAJ
     D/O B L KANTHARAJ
     AGED ABOUT 14 YEARS
     SINCE MINOR
     REP BY HER NATURAL GUARDIAN
     SMT P S REKHA RANI
                                        ... RESPONDENTS
(BY SRI:   VENKATESH B.C., ADV., FOR R1,
    SRI:   V.B. SHIVAKUMAR., ADV., FOR R2,
    SRI:   RAJESWARA P.N., ADV., FOR R3 AND R5,
    SRI:   K THONTADARYA.,ADV., FOR R4)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER DATED 15.11.2021 PASSED
BY THE 7TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, CCC-19, ON I.A.NOS.26 AND 27 IN FDP
NO.56/2001 VIDE ANNEXURE-A AND CONSEQUENTLY,
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DIRECT THE TRIAL COURT TO CONSIDER THE OBJECTIONS
AND CONSEQUENTLY, OBSERVE THAT THE PROCEEDINGS IN
FDP NO.56/2001 PENDING ON THE FILE OF THE 7TH
ADDITIONAL    CITY   CIVIL AND  SESSIONS   JUDGE,
BENGALURU, CCH-19 ARE ABATED ON ACCOUNT OF THE
DEATH OF THE R5 ABOUT 3 YEARS AGO AND NO EFFORTS
ARE MADE BY THE PETITIONER IN FDP NO.56/2001 TO
BRING LRs OF THE R5 ON RECORD.

     THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:

                       ORDER

This writ petition is filed by the second respondent

in FDP No.56/2001 on the file of VII Additional City Civil

and Sessions Judge, Bengaluru, challenging the order

dated 15.11.2021 whereby, the learned sessions Judge

dismissed I.A.Nos.26 and 27 filed by second

respondent/petitioner herein.

2. Brief facts for adjudication of the writ petition

are that:

The plaintiff has filed a suit in O.S.No.2122/1982

seeking partition and separate possession in respect of

suit schedule property which came to be decreed by the

trial court by judgment and decree dated 15.11.2000.

Thereafter, FDP proceedings were initiated by first

respondent herein in FDP No.56/2001.

3. It is further stated in the writ petition that on

08.09.2018, respondent No.5 - (Sadananda Hande)

died). It is forthcoming from the writ petition that the

Preliminary Commissioner's report was filed before the

court on 11.06.2003 and the second commissioner's

report was filed on 10.01.2020. In the meanwhile,

second respondent/petitioner herein in FDP No.56/2001

has filed I.A.Nos.26 and 27 seeking to stay the

operation of the order dated 04.10.2021 and also

seeking to recall the order dated 15.07.2021 by

permitting the respondent No.2/petitioner herein to file

objections to the Commissioner's report, as the same

was not filed on account of Covid-19 pandemic. The said

applications were resisted by the respondents. The trial

court by impugned order dated 15.11.2021 dismissed

the said applications. Feeling aggrieved by the same,

respondent No.2/petitioner herein has presented this

writ petition.

4. I have heard Sri. R.B.Sadashivaiah, learned

counsel appearing for the petitioner, Sri.Venkatesh B.C.,

learned counsel for respondent No.1,

Sri. V.B.Shivakumar, learned counsel for respondent

No.2, Sri. Rajeswara P.N., learned counsel for

respondent Nos.3 and 5 and Sri. K.Thontadarya, learned

counsel for respondent No.4.

5. Sri. R.B.Sadashivappa, learned counsel

appearing for the petitioner submits that respondent

No.5 herein (Sadananda Hande), died in the year 2018

and his LR's are brought on record before the trial court.

He further contended that, though the Commissioner's

Report has been filed before the court, however, no

opportunity was made available to respondent

No.2/petitioner herein in FDP proceedings to cross-

examine the Commissioner based on his report. Nextly,

learned counsel submitted that as soon as the

applications - I.A.Nos.26 and 27 are filed, no objections

were filed by the contesting respondents therein.

Therefore, the finding recorded by the trial court for

dismissing the applications based on the ground that

inter se auction has been taken and basing the said

auction, the petitioner herein has filed the applications

to stall the auction of the property. Therefore, he

submitted that these aspects have not been considered

by the trial court while passing the impugned order at

Annexure-A.

6. Per contra, Sri. V.B.Shivakumar, learned

counsel appearing for respondent No.2 submitted that

there was already a report filed by the first

commissioner in the year 2003 and the same has not

been given effect to. Thereafter, second commissioner's

report has been filed. The trial court be directed to

consider the objections to preliminary report of the

Court Commissioner and ordered for public auction

which is the subject matter of the suit, by taking

recourse to law and the said aspect was well within the

knowledge of petitioner herein. He also submitted that

the finding recorded by the trial court declining to

entertain I.A.Nos.26 and 27 is just and proper and it

does not call for any interference in this writ petition

and the same submission is reiterated by other counsel

representing the other contesting parties. However,

Sri. K.Thontadarya, learned counsel appearing for

respondent No.4 supported the contention raised by

Sri. R.B.Sadashivappa, learned counsel appearing for

the petitioner.

7. In the light of submissions made by learned

counsel appearing for the parties, I have carefully

considered the finding recorded by the trial court.

8. These applications - I.A.Nos.26 & 27 have

been filed by the petitioner to recall the order dated

15.07.2021 and seeking to allow the petitioner herein to

file objections to Commissioner's report (Second

Commissioner). In this regard, this court by order dated

29.11.2021, at paragraph No.5 observed as follows:

"In the light of these submissions, the operation of the impugned order dated 15.11.2021 in F.D.P. No. 56/2021 on the file of VII Additional City Civil and Sessions Judge, Bengaluru, is stayed with liberty to the petitioner, at its cost, to make an application for appointment of a new Court Commissioner to inspect the properties and to file a report. The trial Court shall consider such application subject to further orders in this petition."

9. Looking into the substratum of the order

passed by this court earlier in this writ petition, liberty

was reserved to the petitioner herein to make an

application to arrange a new commissioner to inspect

the properties and to file a report. That apart, no

objections are filed to this writ petition. It is also evident

from the writ papers that no objections have been filed

to the application - I.A.Nos.26 and 27 before the trial

court.

10. Taking into account, the order passed by this

court on 29.11.2021, the petitioner herein has even

filed an application before the trial court pursuant to the