Karnataka High Court
Sri. Chikkanna vs Sri. Dalappa on 5 January, 2024
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NC: 2024:KHC:671
WP No. 41378 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 41378 OF 2017 (GM-CPC)
BETWEEN:
SRI CHIKKANNA
S/O LATE MUDDAIAH
SINCE DEAD BY LRS
1. SMT. THIMMAKKA
W/O LATE CHIKKANNA
AGED ABOUT 71 YEARS
2. SRI. GOVINDAPPA
FOSTERED SON OF
LATE. CHIKKANNA
AGED ABOUT 56 YEARS
BOTH ARE RESIDENTS OF
SATHYAMANGALA VILLAGE
TUMKUR KASABA
TUMKUR TALUK
Digitally
TUMKUR DISTRICT - 577 221
signed by
PAVITHRA N ...PETITIONERS
Location:
high court of
karnataka (BY SRI: M.B. CHANDRACHOODA, ADVOCATE)
AND:
SRI. DALAPPA
SINCE DEAD BY LRS
1. SMT. LAKKAMMA
W/O LATE DALAPPA
AGED 71 YEARS
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WP No. 41378 of 2017
2. SRI. KEMPANNA
S/O LATE DALAPPA
AGED 51 YEARS
3. SRI. NARASIMHAMURTHY
S/O LATE DALAPPA
AGED 49 YEARS
4. SRI KANTHARAJU
S/O LATE DALAPPA
AGED 45 YEARS
THE RESPONDENTS 1 TO 4
ARE RESIDENTS OF
SATHYAMANGALA VILLAGE
TUMKUR TALUK & DISTRICT - 577 221
5. SRI NARAYANAPPA
S/O VEERACHIKKAIAH
AGED ABOUT 67 YEARS
6. SRI PADMAIAH
S/O MUDDAIAH
AGED ABOUT 59 YEARS
7. SRI RAMAIAH
S/O MUDDAIAH
AGED ABOUT 57 YEARS
ALL ARE RESIDENTS OF
SATHYAMANGALA VILLAGE
TUMKUR KASABA
TUMKUR TALUK & DISTRICT - 577 221
...RESPONDENTS
(BY SRI: CHITHAPPA, ADVOCATE FOR R1 TO R5
SRI: T. SESHAGIRI RAO, ADVOCATE FOR R6, R7)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
26.8.2017 PASSED ON I.A. FILED UNDER ORDER 23 RULE 1 OF CPC
IN O.S.663/1996 ON THE FILE OF IV ADDITIONAL CIVIL JUDGE AND
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WP No. 41378 of 2017
JMFC AT TUMKUR, VIDE ANNEXURE-Y BY ISSUE OF WRIT OF
CERTIORARI AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
- B GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
The plaintiffs in OS No.663 of 1996 on the file of the
learned IV Additional Civil Judge and JMFC, Tumakuru is
impugning the order dated 26.08.2017 passed on IA filed under
Order 23 Rule 1 of CPC by plaintiff No.2 seeking to abandon his
claim over 3.14 acres of land in the suit schedule property and
to restrict his claim only in respect of remaining 2 acres of land
on the basis of registered Will dated 03.08.1990.
2. Heard Sri M B Chandrachooda, learned counsel for
the petitioners, Sri Chithappa, learned counsel for respondent
Nos.1 to 5 and Sri T Seshagiri Rao, learned counsel for
respondent Nos.6 and 7. Perused the materials on record.
3. Learned counsel for the petitioners submitted that
the suit is filed by the plaintiffs for declaration and for
permanent injunction against the defendants in respect of 5.21
acres of land. The defendants have appeared before the Court
and filed the written statement. The application seeking
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amendment of the plaint to restrict the claim of plaintiff No.2
only to 2 acres of land was filed way back in the year 2002
under Order 6 Rule 17 of CPC. The said application came to be
dismissed. Thereafter, IA.9 under Order 2 Rule 2 of CPC was
filed and the said application came to be dismissed during
2004. In the meantime, the suit came to be dismissed and the
said judgment was challenged in RA No.130 of 2006 which was
re-numbered as RA No.304 of 2008. The said RA was allowed
and the matter was remanded back to the Trial Court on
09.11.2009.
4. Learned counsel further submitted that the
application under Order 23 Rule 1 of CPC was again filed by
plaintiff No.2 to restrict his claim only in respect of remaining
property. The said application came to be rejected on
12.09.2013. The writ petition was preferred before this Court
challenging the said order and subsequently it was withdrawn
with liberty to file fresh petition with necessary particulars
before the Trial Court. Accordingly, the present application
under Order 23 Rule 1 of CPC was filed with proper particulars.
But the said application came to be dismissed as the prayer is
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hit by principle of constructive res-judicata. Therefore, the
petitioners are before this Court.
5. Learned counsel submitted that even though the
earlier orders passed on various applications by the Trial Court
were not challenged by plaintiff No.2, no prejudice would be
caused to the defendants, if plaintiff No.2 restricts his claim
only in respect of the remaining land and abandoning the claim
in respect of 3.21 acres of land. Learned counsel for the
petitioners also submitted that, even if the writ petition is to be
allowed, he will not lead any further evidence nor file any other
application except amending the plaint. He undertakes to
address his arguments on merits before the Trial Court without
seeking any adjournment or indulgence. Therefore, in the
interest of justice, he prays for allowing the petition.
6. Per contra, learned counsel for the respondents
opposing the petition submitted that originally the suit was filed
during 1996. 28 years have lapsed from the date of filing the
suit, but still the suit is not disposed off. Plaintiff No.2 is in the
habit of filing the application after application under various
provisions of law without there being any merits. He never
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challenged any of the orders passed by the Trial Court. But
once again filed the present application under Order 23 Rule 1
of CPC and the Trial Court has already passed the order on
various applications rejecting the similar prayer made by
plaintiff No.2. He is not entitled for any relief. Therefore, there
are no merits in the petition. Hence, he prays for dismissal of
the petition.
7. The claim of the plaintiffs in the suit for declaration
and injunction was in respect of 5.21 acres of land. However,
now plaintiff No.2 wants to restrict his claim only in respect of 2
acres of land on the basis of registered Will dated 03.08.1990
said to have been executed in his favour. Ofcourse, plaintiff
No.2 has filed various application under various provisions of
law seeking similar relief to abandon his claim in respect of
3.21 acres of land, but all these applications were admittedly
dismissed by the Trial Court and none of these orders was
challenged by plaintiff No.2, except the order dated 12.09.2013
rejecting the similar application under Order 23 Rule 1 of CPC.
However, this Court while permitting the petitioners to
withdraw the writ petition, reserved liberty to file similar
application with proper particulars. Therefore, the present
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application under Order 23 Rule 1 of CPC filed by plaintiff No.2
to abandon his claim in respect of remaining extent of land and
restrict his claim only in respect of 2 acres of land out of the
suit schedule property.
8. The only contention raised by the learned counsel
for the respondents is that petitioner No.2 is in the habit of
dragging on the matter and the suit is of the year 1996. I find
considerable force in the contention taken by the respondents,
as the history of the suit discloses that endlessly the suit is
being dragged on for several years. However, the same cannot
be a ground to reject the claim of plaintiff No.2 as it will not
prejudice the right of the defendants in any other manner.
Plaintiff No.2 is taking the risk of taking a contention regarding
his claim over 2 acres of land only. It is stated that now the
matter is already fixed for arguments.
9. Learned counsel for the petitioners undertakes not
to file any other application before the Trial Court in order to
seek any adjournment or indulgence for adjourning the matter,
if the application and the petition is allowed. He also makes it
very clear that on the first day of hearing after disposal of this
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petition, he will amend his plaint and thereafter, he will address
the arguments on the date fixed by the Trial Court. If this
undertaking given by the learned counsel for the petitioners is
placed on record and it is obeyed before the Trial Court, I think
it would enable the Trial Court to dispose off the suit in a time
bound manner.
10. Hence, the following:
ORDER
(i) The writ petition is allowed.
(ii) The order dated 26.08.2017 passed in OS No.663 of
1996 on the file of the learned IV Additional Civil Judge and
JMFC, Tumakuru, is hereby set aside.
(iii) Consequently, IA under Order 23 Rule 1 of CPC is
allowed. Plaintiff No.2 is permitted to abandon his claim in
respect of 3.21 acres of land out of the suit schedule property
and restrict his claim only to the extent of 2 acres of land as
mentioned in the application which is to be considered as the
suit schedule property.
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(iv) The petitioners - plaintiffs shall carry out the
amendment before the Trial Court on the next date of hearing
and they have to file amended plaint on the same day without
fail.
(v) The respondents - defendants are entitled to file
additional written statement if any. It is made clear that the
petitioners - plaintiffs shall not indulge in any tactics of filing
any application so as to seek adjournment for addressing the
arguments.
(vi) The Trial Court is directed to proceed with the
matter and hear the arguments of both the parties and to
dispose off the same expeditiously, atleast within an outer limit
of three months from the date of receipt of copy of the order.
(vii) Both the parties are directed to appear before the
Trial Court on the next date of hearing in the pending suit.
Sd/-
JUDGE
*bgn/-
