Karnataka High Court
C R Ramesh vs V Manjunath on 11 July, 2023
Bench: H.P.Sandesh
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MFA No. 4042 of 2021
C/W MFA No. 4220 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 4042 OF 2021 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 4220 OF 2021(CPC)
IN M.F.A.NO.4042 OF 2021:
BETWEEN:
1. C.R. RAMESH
S/O C.P. RAJENDRA REDDY
AGED ABOUT 58 YEARS,
2. C.R. MAHESH
S/O C.P. RAJENDRA REDDY
AGED ABOUT 55 YEARS,
BOTH ARE RESIDING AT
NO.G-3, GROUND FLOOR,
OLD HASB KATHA NO.668/A-1
Digitally signed
by SHARANYA T CORPORATION NO.148/1,
Location: HIGH COCONUT GROOVE ANNEXE APARTMENTS
COURT OF HAL AIRPORT ROAD, KODIHALLI
KARNATAKA BENGALURU-560017.
...APPELLANTS
(BY SRI. MANIVANNAN G., ADVOCATE)
AND:
1. V. MANJUNATH
S/O T.VENKATARAJU
AGED ABOUT 37 YEARS,
2. V. ARUN KUMAR
S/O T. VENKATARAJA
AGED ABOUT 44 YEARS,
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3. V. NAVEEN KUMAR
S/O T. VENKATARAJA
AGED ABOUT 40 YEARS,
1 TO 3 ARE RESIDING AT
NO.G-4, GROUND FLOOR,
OLD HASB KATHA NO.668/A-1
CORPORATION NO.148/1,
COCONUT GROOVE ANNEXE APARTMENTS
HAL AIRPORT ROAD, KODIHALLI
BENGALURU-560017
T. VENKATARAJA
S/O LATE THAYAPPA
SINCE DECEASED LRS
ALREADY ON RECORDS AS
RESPONDENT NO.1 TO 3 & 7
JAYARAM
S/O LATE MUNISWAMAPPA
SINCE DECEASED BY HIS
LEGAL REPRESENTATIVES (R4 TO R6)
4. SMT. CHANDRAKALA
D/O LATE JAYARAM
MAJOR
5. SMT. PADMA
D/O LATE JAYARAM
MAJOR
6. SMT. KAVITHA
D/O LATE JAYARAM
MAJOR
4 TO 6 ARE RESIDING
AT KODIHALLI VILLAGE,
OLD AIRPORT ROAD
BENGALURU-560017
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7. SMT. V. JYOTHI
W/O AJAY KUMAR @ RAJU
D/O LATE T. VENKATARAJA
AGED ABOUT 38 YEARS,
RESIDING AT KUMBALAHALLI VILLAGE
KASABA HOBLI, HOSAKOTE TALUK
BENGALURU RURAL DISTRICT
8. VIVIAN PINTO
S/O LATE NORBERT
AGED ABOUT 57 YEARS,
9. SMT. PALANI PINTO
D/O LATE NORBERT
AGED ABOUT 51 YEARS,
8 AND 9 ARE RESIDING
AT NO.103, FIRST FLOOR,
OLD HASB KATHA NO.668/A-1
CORPORATION NO.148/1,
COCONUT GROOVE ANNEXE APARTMENTS
HAL AIRPORT ROAD,
KODIHALLI
BENGALURU-560017
10. P. RAVI
S/O LATE N. PALANISWAMY
AGED ABOUT 47 YEARS,
RESIDING AT NO.103
FIRST FLOOR,
OLD HASB KATHA NO.668/A-1
CORPORATION NO.148/1,
COCONUT GROOVE ANNEXE APARTMENTS
HAL AIRPORT ROAD,
KODIHALLI
BENGALURU-560017
11. SURESH HALARNEKAR
S/O GURUDA V. HALARNEKAR
AGED ABOUT 69 YEARS,
RESIDING AT NO.203, II FLOOR,
OLD HASB KATHA NO.668/A-1
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MFA No. 4042 of 2021
C/W MFA No. 4220 of 2021
CORPORATION NO.148/1,
COCONUT GROOVE ANNEXE APARTMENTS
HAL AIRPORT ROAD,
KODIHALLI
BENGALURU-560017
12. SMT. SENTHIL KUMARI
W/O P. RAVI
AGED ABOUT 43 YEARS,
RESIDING AT NO.204, II FLOOR,
OLD HASB KATHA NO.668/A-1
CORPORATION NO.148/1,
COCONUT GROOVE ANNEXE APARTMENTS
HAL AIRPORT ROAD,
KODIHALLI
BENGALURU-560017
13. M/S. TEAM BUILDERS
NO.13, 4TH CROSS
SHIVALINGAIHA COLONY
MURUGESHPALYA
BANGALORE-560017
REPRESENTED BY ITS PARTNER
G. BASAVAIAH
...RESPONDENTS
(BY SRI MAHANTESH S. HOSMATH, ADVOCATE
FOR R1 TO R3 & R7
VIDE ORDER DATED 20.03.2023,
NOTICE TO R4 TO R6 & R8 TO R13 IS DISPENSED WITH)
THIS MFA IS FILED U/O.43 RULE 1(d) OF THE CPC,
AGAINST THE ORDER DT.31.07.2021 PASSED IN MISC.
NO.25061/2011 ON THE FILE OF THE LVII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU,
(CCH-58), DISMISSING THE PETITION FILED BY THE
PETITIONER U/O.IX RULE 13 R/W SEC.151 OF CPC WITH COST
OF RS.5,000/-.
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IN M.F.A.NO.4220 OF 2021:
BETWEEN:
1. SRI SURESH HALARNEKAR
S/O SRI GURUDA V. HARLANEKAR
AGED ABOUT 47 YEARS
R/AT NO.203, III FLOOR
OLD HASB KATHA NO 668/A-1
CORPORATION NO.148/1
COCONUT GROVE ANNEXE APARTMENTS
HAL AIRPORT ROAD, KODIHALLI
BANGALORE-560017.
2. SRI VIVIAN PINTO
S/O LATE NORBERT
AGED ABOUT 59 YEARS
3. SMT. PALANI PINTO
D/O SRI LATE NORBERT
AGED ABOUT 55 YEARS
BOTH ARE R/AT NO 103, FIRST FLOOR
OLD HASB KATHA NO 668/A-1
COCOUNT GROVE ANNEXE APARTMENTS
HAL AIRPORT ROAD, KODIHALLI
BANGALORE 560017
(PETITIONER 1,2, 5 AND 7 AND 8 HAVE
NOT JOIN WITGH THESE APPELLANTS
AND THEREFORE THEY ARE MADE RESPONDENTS)
...APPELLANTS
(BY SRI. R.A.DEVANAND, ADVOCATE)
AND:
1. SRI V. MANJUNATH
S/O SRI T.VENKATRAJU
AGED ABOUT 47 YEARS,
2. SRI V. ARUN KUMAR
S/O SRI T. VENKATRAJU
AGED ABOUT 49 YEARS,
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3. SRI V. NAVEEN KUMAR
S/O SRI T. VENKATRAJU
AGED ABOUT 45 YEARS,
T. VENKATARAJA
S/O LATE THAYAPPA
SINCE DECEASED LRS
ALREADY ON RECORDS AS
RESPONDENT NO.1 TO 3 AND 4 TO 7.
ALL ARE R/AT NO.G-4, GROUND FLOOR,
OLD HASB KATHA NO.668/A-1
CORPORATION NO.148/1,
COCONUT GROVE ANNEXE APARTMENTS
HAL AIRPORT ROAD, KODIHALLI
BENGALURU-560017
4. SMT. CHANDRAKALA
D/O LATE JAYARAM
AGED ABOUT 50 YEARS
5. SMT. PADMA
D/O LATE JAYARAM
AGED ABOUT 40 YEARS
6. SMT. KAVITHA
D/O LATE JAYARAM
AGED ABOUT 30 YEARS
RESPONDENT NOS.4 TO 6 ARE
RESIDING AT KODIHALLI VILLAGE,
OLD AIRPORT ROAD
BENGALURU-560017
7. SMT. V. JYOTHI
W/O SRI AJAY KUMAR @ RAJU
D/O LATE T. VENKATRAJA
AGED ABOUT 44 YEARS,
R/AT KUMBALAHALLI VILLAGE
KASABA HOBLI, HOSAKOTE TALUK
BENGALURU RURAL DISTRICT.
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8. SRI C.R.RAMESH
S/O SRI C.P.RAJENDRA REDDY
AGED ABOUT 64 YEARS.
9. SRI C.R. MAHESH
S/O SRI C.P.RAJENDRA REDDY
AGED ABOUT 61 YEARS
RESPONDENT NOS. 8 & 9 ARE
R/AT NO.G-3, GROUND FLOOR
OLD HASB KATHA NO.668/A-1
CORPORATION NO.148/1,
COCONUT GROVE ANNEXE APARTMENTS
HAL AIRPORT ROAD, KODIHALLI
BENGALURU-560017
10. SRI P. RAVI
S/O LATE N. PALANISWAMY
AGED ABOUT 53 YEARS,
R/AT NO.104, FIRST FLOOR,
OLD HASB KATHA NO.668/A-1
CORPORATION NO.148/1,
COCONUT GROVE ANNEXE APARTMENTS
HAL AIRPORT ROAD, KODIHALLI
BENGALURU-560017
11. SMT.SENTHI KUMARI
W/O SRI P.RAVI
AGED ABOUT 49 YEARS,
R/AT NO.204, II FLOOR,
OLD HASB KATHA NO.668/A-1
CORPORATION NO.148/1,
COCONUT GROVE ANNEXE APARTMENTS
HAL AIRPORT ROAD, KODIHALLI
BENGALURU-560017
12. M/S. TEAM BUILDERS
NO.13, 4TH CROSS
SHIVALINGAIHA COLONY
MURUGESHPALYA, BANGALORE-560017
REPRESENTED BY ITS PARTNER
SRI G. BASAVAIAH
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C/W MFA No. 4220 of 2021
{RESPONDENTS 4 TO 12 DELETED VIDE COURT
ORDER DATED 13.06.2023}
...RESPONDENTS
(BY SRI MAHANTESH S. HOSMATH, ADVOCATE FOR R1 TO R3;
VIDE ORDER DATED 13.03.2023 R4 TO R12 ARE DELETED)
THIS MFA IS FILED U/O.43 RULE 1(d) OF CPC, AGAINST
THE ORDER DT.31.07.2021 PASSED IN MISC. NO.25061/2011
ON THE FILE OF THE LVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, MAYO HALL UNIT, BENGLURU, (CCH-58),
DISMISSING THE PETITION FILED U/O.9 RULE 13 R/W SEC.151
OF CPC WITH COST OF RS.5,000/-.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are listed for admission and heard
both the counsel on merits.
In these two appeals order is challenged before this Court
dismissing the Misc. Petition No.25061/2011 filed under Order
IX Rule 13 r/w Section 151 CPC with cost of Rs.5000/-.
2. Counsel appearing for the appellant in M.F.A.No.
No.4220/2021 vehemently contend that while dismissing the
Misc.Petition No.25061/2011 the Trial Court has not assigned
the reasons, even though specific reasons are given before the
Trial Court that there was a move for settlement and hence
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C/W MFA No. 4220 of 2021
they could not appear before the Trial Court and in the
meanwhile the suit is decreed, the same has not been
considered. The counsel also vehemently contend that cryptic
order was passed by the Trial Court, while dismissing, only
three paragraphs have been discussed and comes to the
conclusion that no sufficient cause is made out for invoking
Order IX Rule 13 and the very approach of the Trial Court is
erroneous and hence it requires interference.
3. Though appeal is filed in M.F.A.No.4042/2021, counsel
for the appellants in M.F.A.No.4042/2021 also reiterates the
grounds urged by the counsel appearing for the appellants in
M.F.A.No.4220/2021 and counsel also vehemently contend that
the Trial Court ought to have given an opportunity to the
appellants herein to contest the matter on merits and the very
approach of the Trial Court is erroneous.
4. Per contra, the counsel appearing for the respondents
vehemently contend that suit was filed in the year 2006 and
the same was decreed in the year 2011 and PWs.1 to 3 have
been examined before the Trial Court but they were not cross-
examined and the Trial Court while rejecting
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Misc.No.25061/2011 considered the grounds urged in the Misc.
Petition and admission given by PW1 and PW2 in the
Miscellaneous Petition wherein they have categorically admitted
that they have engaged the counsel and filed the written
statement and PWs.1 and 2 categorically admitted that they
were present before the Trial Court on some dates of hearing
and on remaining dates of hearing they could not appear, but
they used to enquire with the advocate regarding progress of
the case. Having taken note of the admission given by PWs.1
and 2 and also filing of R.F.A. and F.D.P., even the reasoning
that suit was filed in the year 2006 and the respondents were
unable to get the fruits of the decree, dismissed the Misc.
Petition and reason given by the Trial Court while dismissing
the petition filed under Order IX Rule 13 is a reasoned order
and the very contention of the counsel appearing for the
appellants that the Trial Court has passed a cryptic order,
cannot be accepted.
5. Having heard the counsel for the appellants and also
counsel for the respondents, the point that would arise for
consideration in these appeals is:
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"Whether the Trial Court has committed
an error in dismissing the petition filed under
Order IX Rule 13 r/w Section 151 CPC?"
6. Having heard the respective counsel, it is not in
dispute that the suit was filed in the year 2006 for the relief of
partition and separate possession and also not in dispute that
the appellants herein have also engaged their counsel and
witnesses PWs.1 to 3 have been examined before the Trial
Court and they were not cross-examined and suit was decreed
in the year 2011. After the decree, the Misc. Petition was filed
and in the Misc. Petition reason assigned is that there was a
settlement talk between the parties and in order to substantiate
the same, no material is placed before the Court. Even if there
was any settlement talks, the same would have been
mentioned before the Trial Court. The witnesses PWs.1 and 2
who have been examined before the Trial Court have not been
cross-examined. Apart from that they should have given the
reasons for non appearance and no sufficient material is placed
before the Trial Court while invoking Order IX Rule 13 r/w
Section 151 CPC. The appellants must show the sufficient cause
for what prevented them in appearing before the Trial Court
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and both PWs.1 and 2 have given admission in the examination
in Misc.Petition No.25061/2011 that they used to appear before
the Trial Court on some dates, in which date they could not
appear before the Trial Court, they used to enquire with the
advocate and hence it is clear that they are having all
knowledge about the progress of the case. When such being
the case, when they have not utilized the opportunity given to
them and the Trial Court has also rightly come to the
conclusion that they have not made out any sufficient cause to
set aside the judgment and decree and to allow the application
filed under Order IX Rule 13 and also in paragraph No.16 taken
note of the fact that the suit was filed in the year 2006 and was
also decreed in the year 2011, the respondents were unable to
get the fruits of the decree. On the other hand, the appellants
herein are in possession and enjoyment of the property without
effecting the partition and without giving any share.
7. Having considered the reasons, the very contention of
the appellants counsel that the order passed by the Trial Court
is cryptic, cannot be accepted and the reasons are given after
considering the evidence of PWs.1 and 2 and they were aware
of all the progress of the case and whenever they have not
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appear before the Trial Court, they used to enquire with the
advocate. When such admission is given, not made out any
sufficient cause to set aside the order of the Trial Court.
8. The counsel appearing for the appellants would
vehemently contend that cost may be imposed and the matters
may be remanded to the Trial Court to consider the matters on
merits. When the material clearly discloses that they have
engaged the advocate to participate in the proceedings, with
their whims and fancies, the Court cannot come to the rescue
of the appellants who are having knowledge about all the
affairs of the matter and not contested the suit and the suit
was also decreed after five years and they have not cross-
examined the witnesses and no sufficient cause is shown even
to set aside the order or remanding the matter for fresh
consideration, does not arise. Hence, I do not find any ground
to set aside the order of the Trial Court even on cost and
accordingly, I answer the point in the negative.
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In view of the discussions made above, I pass the
following
ORDER
The appeals are dismissed.
Sd/-
JUDGE
AP
