Karnataka High Court
Mrs Chandravati @ Bhagirathi vs Sri Prasanna R Kailaje on 27 June, 2023
Bench: S.R.Krishna Kumar
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WP No. 1506 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 1506 OF 2023 (GM-CPC)
BETWEEN:
MRS CHANDRAVATI @ BHAGIRATHI
W/O LATE SHIVANANDA
AGED ABOUT 79 YEARS
R/AT DOOR NO.17-115
KARNATAKA HOUSING BOARD COLONY
ULLAL-575020.
...PETITIONER
(BY SRI. B.S.SACHIN., ADVOCATE)
AND:
1. SRI PRASANNA R KAILAJE
S/O LATE K RAGHUNATH BHAT
AGED ABOUT 57 YEARS
R/AT NO.392/3,
SHRI VISHWESHWAR VENUGOPAL TEMPLE
ANANTHA SHAYANA TEMPLE ROAD
Digitally KARKALA-574104.
signed by
PANKAJA S
Location:
2. MESCOM
HIGH REPRESENTED BY ITS
COURT OF
KARNATAKA ASSISTANT EXECUTIVE ENGINEER
CHABUGUDE, ULLAL-575 020.
...RESPONDENTS
(BY SRI. V.RAVIPRAKASH, ADVOCATE FOR R-1;
VIDE ORDER DATED:27.06.2023, NOTICE TO R-2 IS
DISPENSED WITH)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED
ORDER DATED 19.11.2022 ON I.A.NO.1 IN MISC. CASE NO.36 OF
2022 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE AND
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WP No. 1506 of 2023
CJM, MANGALURU, DAKSHINA KANNADA AS PER ANNEXURE-A
AND CONSEQUENTLY ALLOW THE I.A.NO.1 FILED BY THE
PETITIONER IN MISC.CASE NO.36 OF 2022.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. This petition is directed against the impugned order dated
19.11.2022 passed in Misc. No.36/2022 by the I Additional Senior
Civil Judge & CJM, Mangaluru, Dakshina Kannada (for short, 'Trial
Court'), whereby the application - I.A. No.I filed by the petitioner
under Order XLI Rule 5 read with Section 151 of the Code of Civil
Procedure, 1908 (for short, 'CPC') seeking stay of the operation of
judgment and decree dated 26.09.2022 passed in O.S.
No.338/2019 was rejected by the Trial Court.
2. The material on record discloses that the respondent No.1 -
plaintiff instituted suit in O.S. No.338/2019 against the petitioner -
defendant No.1 and respondent No.2 - defendant No.2 for
declaration, possession and mandatory injunction and other reliefs
in relation to the suit schedule immovable property. In the said suit,
the petitioner - defendant No.1 entered appearance through her
counsel, but did not file her written statement nor contested the
suit. The respondent No.2 - defendant No.2 - MESCOM filed the
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written statement. During the course of trial, the respondent No.1 -
plaintiff examined himself as P.W.1 and Exs.P-1 to P-56 were
marked. So also the Court Commissioner was examined as C.W.1
and Exs.C-1 to C-20 were marked by the Trial Court. After hearing
the respondent No.1 and respondent No.2, the Trial Court
proceeded to pass judgment and decree dated 26.09.2022
decreeing the suit in favour of respondent No.1 - plaintiff.
3. Aggrieved by the aforesaid judgment and decree passed by
the Trial Court, the petitioner - defendant No.1 has preferred Misc.
No.36/2022 invoking Order IX Rule 13 of CPC. In the said
Miscellaneous proceedings, the petitioner - defendant No.1 filed an
application - I.A. No.1/2022 under Order XLI Rule 5 of CPC
seeking stay of the judgment and decree passed in O.S.
No.338/2019. By the impugned order, the Trial Court rejected I.A.
No.1/2022, aggrieved by which the petitioner is before this Court by
way of the present petition.
4. The learned counsel for the respondent No.1 - plaintiff, on
instructions, submits that the respondent No.1 has no objection for
the Miscellaneous Petition in Misc. No.36/2022 itself to be allowed
and the suit restored to file subject to imposing certain conditions
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upon the petitioner - defendant No.1 including directing her to file a
written statement on a date to be fixed for appearance before the
Trial Court and further direct the Trial Court to dispose of the suit
within a stipulated time frame.
5. In view of the aforesaid facts and circumstances and
submissions made by the learned counsel for respondent No.1, I
deem it just and appropriate to exercise my jurisdiction under
Article 227 of the Constitution of India read with Section 107 and
under Order XLI Rule 33 of CPC and set aside the judgment and
decree dated 26.09.2022 passed in O.S. No.338/2019 and restore
the said suit to file and issue certain directions to the Trial Court for
disposal of the suit expeditiously.
6. In the result, the following :
ORDER
i. Writ Petition is hereby allowed.
ii. The impugned order dated 19.11.2022 on I.A.
No.I/2022 in Misc. No.36/2022 on the file of I
Additional Senior Civil Judge & CJM, Mangaluru,
Dakshina Kannada, is hereby set aside.
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iii. So also, Misc. No.36/2022 pending on the file of I
Additional Senior Civil Judge & CJM, Mangaluru,
Dakshina Kannada, stands allowed and the
judgment and decree dated 26.09.2022 passed
in O.S. No.338/2019 stands restored to the file of
the Trial Court.
iv. Parties undertake to appear before the Trial
Court in O.S.No.338/2019 on 12.07.2023 without
awaiting further notice from the Trial Court.
v. The petitioner - defendant No.1 is directed to file
written statement in O.S.No.338/2019 without
seeking any adjournment on 12.07.2023, under
any circumstances whatsoever.
vi. Immediately upon the petitioner - defendant No.1
filing written statement in O.S. No.338/2019, the
Trial Court shall frame issues and proceed with
the matter and dispose of the suit as
expeditiously as possible and at any rate within a
period of four months from 12.07.2023.
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vii. All rival contentions on all aspects of the matter
are kept open and no opinion is expressed on the
merits.
viii. The Undertaking given on behalf of the
respondent No.1 - plaintiff in O.S. No.338/2019
that he will withdraw Execution Proceedings in
E.P. No.156/2022 is placed on record.
Sd/-
JUDGE
HNM
