Karnataka High Court
Krishnamma vs Abdul Razak on 16 January, 2024
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NC: 2024:KHC:3081
WP No. 15447 of 2017
C/W WP No. 22771 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 15447 OF 2017 (GM-CPC)
C/W
WRIT PETITION NO. 22771 OF 2017 (GM-CPC)
BETWEEN:
KRISHNAMMA
W/O T.N. KRISHNA MURTHY
AGED ABOUT 52 YEARS,
R/AT JAMPENAHALLY VILLAGE,
C.N. DURGA HOBLI,
KORATAGERE TALUK
TUMKUR DISTRICT - 572 012
...COMMON PETITIONER
(BY SRI: B.K. MANJUNATH, ADVOCATE)
AND:
1. ABDUL RAZAK
S/O ABUL MUNAF
AGED ABOUT 56 YEARS,
Digitally R/O KORATAGERE TOWN
signed by
PAVITHRA N KORATAGERE TALUK,
TUMKUR DISTRICT - 572 102
Location:
high court of
karnataka 2. NARAYANAPPA
S/O GOPALAIAH
AGED ABOUT 57 YEARS,
R/AT JAMPENAHALLY VILLAGE,
C.N. DURGA HOBLI,
KORATAGERE TALUK,
TUMKUR DISTRICT - 572 012
3. NAGARAJU
S/O GOPALAIAH
AGED ABOUT 47 YEARS,
R/AT JAMPENAHALLY VILLAGE,
C.N. DURGA HOBLI,
-2-
NC: 2024:KHC:3081
WP No. 15447 of 2017
C/W WP No. 22771 of 2017
KORATAGERE TALUK,
TUMKUR DISTRICT - 572 012
4. PARAVATHAMMA
W/O HANUMANTHRAYAPPA
AGED ABOUT 57 YEARS,
WORKING IN KPTCL OFFICE
NITTUR GUBBI TALUK,
TUMKUR DISTRICT - 572 102
...COMMON RESPONDENTS
(BY SRI: RAVIVARMA KUMAR, SENIOR ADVOCATE FOR
SRI: KAMARAJU, ADVOCATE FOR R1,
R2, 3, 4 - SD)
WRIT PETITION NO.15547 OF 2017 IS FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS AND QUASH THE ORDER PASSED BY THE LEARNED
PRINCIPAL SENIOR CIVIL JUDGE AT MADHUGIRI ON MIS.2/2013
DTD.23.2.2017 ON ORDER 9 RULE 13 R/W 151 OF CPC VIDE ANNEX-
G AND QUASH THE ORDER PASSED BY THE LEARNED PRINCIPAL
SENIOR CIVIL JUDGE AT MADHUGIRI ON I.A.NO.5 IN MIS.2/2013
VIDE ANNEX-K DTD.27.1.2017 AND ETC.,
WRIT PETITION NO.22771 OF 2017 IS FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS AND QUASH THE ORDER PASSED BY THE LEARNED
PRINCIPAL SENIOR CIVIL JUDGE AT MADHUGIRI ON I.A.1 IN
MIS.2/2013 AT ANNEX-H DTD.28.4.2017 ISSUING A WRIT OF
CERTIORARI AND ETC.,
THESE WRIT PETITIONS, COMING ON FOR PRELIMINARY
HEARING - B GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
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WP No. 15447 of 2017
C/W WP No. 22771 of 2017
COMMON ORDER
The plaintiff in OS.No.143/2004 on the file of the learned
Prl.Sr.Civil Judge and JMFC., Madhugiri being respondent No.1
in Misc.No.2/2013 has filed the WP.No.15447/2017 impugning
the order dated 27.01.2017 allowing IA No.5 filed under
Section 94(e) R/w Section151 of CPC and staying the further
proceedings in FDP No.12/2008 pending on the file of
Addl.Senior Civil Judge and JMFC., Madhugiri till disposal of the
petition.
2. He has also filed WP.No.22771/2017 impugning the
order dated 28.04.2017 passed in Mis.No.2/2013 permitting
the respondent herein lead evidence on IA No.I filed under
Section 5 of limitation Act and also on merits.
3. Heard Sri. B.K.Manjunath, learned counsel for the
petitioner and Sri. Ravivarma Kumar, learned Senior Advocate
for Sri. Kamaraju, learned counsel for the respondent No.1.
4. Learned counsel for the petitioner submits that
petitioner being the plaintiff before the trial Court in
OS.No.143/2004 filed the suit for partition and separate
possession of his share over the schedule property.
NC: 2024:KHC:3081
5. Defendant No.1 in the said suit remained exparte
and has not contested the suit. The trial court after holding full-
fledged trial, decreed the suit vide judgment and decree dated
11.04.2008. In the meantime, when the suit was filed, an order
to maintain status-quo was passed on 07.12.2004. Even
though defendant No.1 has not contested the suit, she sold the
subject property under the registered sale deed dated
20.12.2004 in favour of respondent No.1 herein, during
subsistence of the order to maintain status-quo passed by the
trial Court. Defendant No.1 never challenged passing of the
judgment and decree by trial Court decreeing the suit.
However, respondent No.1 being the purchaser of the property
filed Mis.No.2/2013 seeking to set-aside the exparte decree
and the same is still pending consideration.
6. Learned counsel for the petitioner submitted that
even though the petitioner raised his objection regarding
maintainability of the petition, the Trial Court proceeded to
pass the impugned order dated 27.01.2017 allowing IA No.5
and staying the further proceedings in FDP No.12/2008 and
also proceeded to pass the impugned order 28.04.2013
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permitting petitioner to lead his evidence on IA No.I and also
on merits.
7. Learned counsel contended that in view of the
decision of Hon'ble Apex Court in "STATE OF WEST BENGAL
AND OTHERS VS. SOMDEB BANDYOPADHAYAY AND
OTHERS"1 position of law is very well settled that unless the
Court considers the application for condonation of delay i.e., IA
No.I pending before the Trial Court, it would not get jurisdiction
to consider the other applications filed by the respondent
before it. Therefore, the impugned order suffers from illegality
and prays for allowing the petition by setting aside both the
impugned orders in the interest of justice.
8. Per contra, learned Senior Advocate for the
respondents opposing the petition submitted that, the trial
Court considered the grounds made out in the petition i.e.,
fraud, mis-representation played by plaintiff in obtaining
exparte decree for partition and separate possession and
proceeded to pass the impugned order vide well reasoned
orders. IA No.I filed under Section 5 of Limitation Act is still
pending for consideration and the respondents have no
(2009)2 SCC 694
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objection for leading evidence, seeking condonation of delay.
However, in the meantime, since the petitioner was proceeding
to prosecute FDP No.12/2008, the impugned order was came to
be passed taking into consideration the interest of both the
parties. There are no reasons to interfere with the impugned
order and prays for dismissal of both the petition.
9. Admittedly, petitioner as plaintiff filed
OS.No.143/2004 before the Trial Court seeking partition and
separate possession of schedule properties. It is also admitted
that defendant No.1 has not contested the matter and she was
placed exparte. It is stated that defendant No.1 during the
pendency of the suit in violation of the status-quo order sold
the property in question in favour of respondent No.1 under
registered sale deed dated 20.12.2004. It is there after the suit
of the plaintiff was came to be decreed, on 11.04.2008.
10. Now it is the contention of the respondent No.1,
who is the purchaser of the property under the registered sale
deed that he was not aware of the suit filed by the plaintiff and
only on service of notice in FDP No.12/2008, he came to know
about passing of the exparte decree and immediately filed
Mis.No.2/2013. He filed IA No.I under Section 5 on Limitation
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Act seeking condonation of delay, the same is still pending
consideration. In the meantime, the Court passed these two
impugned orders permitting respondent Nos.1 to lead evidence
on IA No.I along with the merits and also allowing IA No.5 and
staying further proceedings in FDP No.12/2008.
11. Learned counsel for the petitioner placed reliance
on the decision of the Hon'ble Apex Court in "SOMDEB
BANDYOPADHAYAY AND OTHERS" (supra) where the
Hon'ble Apex Court considered the facts of the said case and
held in para 7 as under:
"It is to be noticed that even without condoning the
delay and entertaining the writ appeal the High Court has
passed a series of interim orders. Such a course is
impermissible as the appeal was non est in the eye of
the law without it being entertained. Admittedly, the
delay in preferring the writ appeal was not condoned at
the time when the interim orders were passed. The High
Court has committed another error in holding that the
writ petition was dismissed principally on the ground that
it was the decision of the governing body as to who
should be its Secretary, although government approval is
necessary for appointment of the Secretary of the
governing body of the institute. On the contrary, the
learned Single Judge dismissed the writ petition
principally on the ground that factual controversy is
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involved. The Division Bench has not discussed this
aspect at all. Therefore, the order is clearly indefensible"
(emphasis supplied)
12. In view of the above, it is very clear that unless
delay in filing the Mis.Case No.2/2013 is condoned, the trial
Court will not get jurisdiction to pass the impugned orders.
Pendency of Misc. No.2/13 is non est in the eye of law unless
the delay in filing the same is condoned. Hence, I am of the
opinion that the impugned order passed by the Trial Court is
liable to be set aside. Respondent No.1 is at liberty to lead
evidence on IA No.I to satisfy the trial Court regarding
sufficiency of cause for condonation of delay.
13. It is the contention of the learned counsel for the
petitioner that since respondent No.1 is the purchaser pendente
lite during the operation of order of status-quo by the trial
Court the petition is not maintainable. However, the trial Court
considered the contention raised by both parties and also
decisions that are relied on by the parties formed a prima-face
opinion that petition is maintainable. At this stage, I do not
find any reason to interfere with the said order. However the
petitioner can substantiate his contention that the
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miscellaneous petition before the trial Court is not maintainable
and the petitioner there in is not entitled for any relief. Hence,
I proceed to pass the following:
ORDER
i. Writ petition 15447/2017 is allowed-in-part.
ii. Writ petition 22771/2017 is dismissed.
iii. The impugned order dated 27.01.2017 passed on
I.A. 5 filed under section 94(e) R/w Section 151 of
CPC staying the further proceedings in FDP
No.12/2008, is set aside.
iv. The impugned order dated 28.04.2017 passed on
I.A.No.I in Mis.No.02/2013 on the file of learned
Prl.Senior Civil Judge at Madhugiri, is confirmed.
v. Even though the suit OS.No.143/2004 was decreed,
vide judgment and decree dated 11.4.2008,
Misc.No.02/2013, is still pending consideration.
Hence, both the parties are directed to co-operate
with the trial Court in expeditious disposal of the
matter. The trial Court shall dispose off the matter
in an expeditious matter within an outer limit of six
months from the date of receipt of the orders.
Sd/-
JUDGE
