Karnataka High Court
Smt Aswathamma vs Smt Gangamma @ Sunadamma on 4 March, 2024
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NC: 2024:KHC:9049
WP No. 42820 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 42820 OF 2017 (GM-CPC)
BETWEEN:
1. SMT. ASWATHAMMA
W/O. LATE RAMAKRISHNA REDDY,
AGED ABOUT 55 YEARS,
R/AT K.B. HOSAHALLI VILLAGE,
NARASAPURA POST AND HOBLI,
KOLAR TALUK
AND DISTRICT-563133
2. PRAKASH
S/O. LATE RAMAKRIHNA REDDY,
AGED ABOUT 31 YEARS,
R/AT. VINAYAKA NAGAR,
VARTHUR,
BENGALURU-87
3. SMT. VISHALAKSHI
Digitally W/O. MANJUNATH,
signed by BS AGED ABOUT 37 YEARS,
RAVIKUMAR R/AT. APPASANDRA VILLAGE,
Location: NARASAPURA HOBLI,
HIGH
COURT OF KOLAR TALUK-563133
KARNATAKA
4. SMT. PREMA
W/O. PILLAREDDY,
AGED ABOUT 35 YEARS,
R/AT. APPASANDRA VILLAGE,
NARASAPURA HOBLI,
KOLAR TALUK-563133
5. SMT. NAGAROOPA
W/O. RAMESH,
AGED ABOUT 33 YEARS,
R/AT. SWARANCE VILLAGE,
VARTHUR HOBLI,
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NC: 2024:KHC:9049
WP No. 42820 of 2017
BANGALORE-87
...PETITIONERS
(BY MS. AISHWARYA HEGDE, ADVOCATE FOR
SRI. SANTHOSH S NELKUDRI, ADVOCATE)
AND:
1. SMT. GANGAMMA @ SUNADAMMA
W/O LATE VENKATESH REDDY,
AGED ABOUT 70 YEARS,
R/AT KARUDUBANDE HOSAHALLI VILLAGE,
NARASAPURA HOBLI-563133
KOLAR TALUK AND DISTRIST.
2. SMT. SHEELA
W/O RAMESH,
D/O LATE VENKATESH REDDY,
AGED ABOUT 33 YEARS,
R/AT LAKSHMIPURA VILLAGE,
LAKKUR HOBLI, MALUR TALUK,
KOLAR DISTRICT-563133
3. SMT. PUSHPALATHA
W/O MANJUNATH,
D/O LATE VENKATESH REDDY,
AGED ABOUT 29 YEARS,
R/AT VALEPURA VILLAGE,
NEAR ASHWATH KATTEE,
VARTHUR HOBLI, BANGALORE-87
4. SRI. SUDHAKAR
S/O LATE VENKATESH REDDY,
AGED ABOUT 29 YEARS,
R/AT KARUDUBANDE HOSAHALLI VILLAGE,
NARASAPURA HOBLI-563133
KOLAR TALUK AND DISTRICT
MUNI REDDY
DEAD BY HIS LRS
5. SMT. PARVATHAMMA,
W/O LATE MUNI REDDY,
AGED ABOUT 63 YEARS,
R/AT KARUDUBANDE HOSAHALLI VILLAGE,
NARASAPURA HOBLI-563133
-3-
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WP No. 42820 of 2017
KOLAR TALUK AND DISTRICT
6. MURALI MOHAN
S/O LATE MUNI REDDY,
AGED ABOUT 28 YEARS,
R/AT KARUDUBANDE HOSAHALLI VILLAGE,
NARASAPURA HOBLI-563133
KOLAR TALUK AND DISTRICT
7. CHANDRA REDDY
S/O LATE MUNISHAMY REDDY,
R/AT KARUDUBANDE HOSAHALLI VILLAGE,
NARASAPURA HOBLI - 563133
KOLAR TALUK AND DISTRICT
8. SMT. NAGAVEENI
W/O LATE SRINIVASA REDDY,
AGED ABOUT 37 YEARS,
R/AT KARUDUBANDE HOSAHALLI VILLAGE,
NARASAPURA HOBLI-563133
KOLAR TALUK AND DISTRICT
9. KUMARI TEJASWENI
D/O LATE SRINIVASA REDDY,
MINOR
10. KUMARI VARSHINI
D/O LATE SRINIVASA REDDY,
RESPONDENTS NO.9 AND 10 MINORS,
REPRESENTED BY HER MOTHER GUARDIAN
SMT.NAGAVEENI
W/O LATE SRINIVASA REDDY,
R/AT KARUDUBANDE HOSAHALLI VILLAGE -563133
NARASAPURA HOBLI,
KOLAR TALUK AND DISTRICT.
11. THE SPECIAL LAND ACQUISITION OFFICER
KIADB, 3RD CROSS, KHENI BUILDING,
GANDHINAGAR, BANGALORE-02
12. LAKSHMAMMA
D/O LATE MUNISWAMI REDDY,
AGED ABOUT 55 YEARS,
R/AT KARUDUBANDE HOSAHALLI VILLAGE,
NARASAPURA HOBLI-563133
-4-
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WP No. 42820 of 2017
KOLAR TALUK AND DISTRICT.
...RESPONDENTS
(BY SRI. PRAKASH R. GARASANGI, ADVOCATE FOR SRI. B.B. PATIL,
ADVOCATE FOR RESPONDENT NO.11;
RESPONDENT NOS.9 AND 10 ARE MINORS REPRESENTED BY
RESPONDENT NO.8;
SRI. V.B.SHIVAKUMAR, ADVOCATE FOR RESPONDENT NO.12;
NOTICE SERVED ON RESPONDENT NOS.1, 3 TO 8 AND
UNREPRESENTED;
VIDE ORDER DATED 12.02.2024 PETITION AGAINST RESPONDENT
NO.2 IS DISMISSED)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
22.07.2017 PASSED ON IA NO.XVIII IN O.S.NO.40/2012 ON THE
FILE OF THE 1ST ADDITIONAL SR.CIVIL JUDGE AND JMFC AT KOLAR
AS PER ANNEXURE-G.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The plaintiffs in O.S.No.40/2012 on the file of III
Additional Senior Civil Judge & JMFC, at Kolar have filed this
petition challenging an order dated 22.07.2017, by which, an
application (I.A.No.18) filed by the defendant No.11 under
Section 10 read with Section 151 of Civil Procedure Code to
stay further proceedings in the suit till the final disposal of
O.S.No.543/2010 was allowed.
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2. The defendant No.11 in O.S. No.40/2012 filed
O.S.No.543/2010 for partition and separate possession of her
share in the suit schedule property. The petitioners herein were
arrayed as defendants in the said suit. They contended that the
property bearing Sy.No.107 of Karudubande Village,
Narasapura Hobli, Kolar taluk were their absolute properties,
where the defendant No.11 did not have any right, title or
interest over the same.
3. Later, the petitioners herein filed O.S.No.40/2012
for declaration of their title over the schedule properties and for
perpetual injunction restraining the defendant No.11 and others
from interfering with their possession.
4. The defendant No.11 therefore filed an application
in O.S.No.40/2012 for stay of further proceedings in view of
the pendency of the suit in O.S.No.543/2010. The Trial Court
noticed that the properties in both the suits were the same.
The plaintiff in O.S.No.543/2010 claimed that the suit property
was a joint estate, while the defendants claimed to the contrary
and contended that the suit properties were their absolute
properties. The Trial Court therefore, allowed the application
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and stayed further proceedings in O.S.No.543/2012 by the
impugned order. Being aggrieved by the same, the plaintiffs
have filed this writ petition.
5. The learned counsel for the petitioners submitted
that since the issues in both the suits are almost similar, the
Trial Court must have considered clubbing both the suits and
treating the suit filed in O.S.No.40/2012 as the lead suit. She
submits that petitioners would have to unnecessarily wait till
the disposal of the suit filed by the defendant No.11 to seek
adjudication of their title to the suit properties in
O.S.No.40/2012. She therefore, contends that both the suits
must have clubbed for a common trial and a common
judgment.
6. Per contra, the learned counsel for the defendant
No.11 submits that the written statement filed by the
petitioners in O.S.No.543/2010 is nothing but the plaint
averments in O.S.No.40/2012 and therefore, until the suit in
O.S.No.543/2010 is decided, the petitioners are not entitled to
file a fresh suit.
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7. I have considered the submissions made by the
learned counsel for the plaintiffs and learned counsel for the
defendant No.11.
8. An application under Section 10 of Civil Procedure
Code is maintainable when the subject matter in issue in a
subsequent suit is also directly, substantially in issue in a
previously instituted suit, between the same parties, under
whom, they were any of them claim. In the case on hand, no
doubt, the suit properties are the same and the parties are also
the same. While, the plaintiff in O.S.No.543/2010 claimed that
the suit properties were the joint estate, the plaintiffs in
O.S.No.40/2012 claim to the contrary and contend that it is
their self acquired properties. Therefore, the defence in one suit
is the plaint averments in the other suit. It is noticed that the
petitioners herein who are the defendants in O.S.No.543/2010
did not seek for any counter claim that they are the owners of
the suit properties, but instead filed a separate suit for
declaration of their title to the suit schedule properties.
Therefore, the Court cannot decide the title of the petitioners
herein in O.S.No.543/2010. Consequently, it cannot be held
that the matter in issue in the subsequent suit was directly,
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substantially in issue in the previously instituted suit.
Therefore, in the fitness of things, the Trial Court instead of
staying the proceedings in O.S.No.543/2010, must have
directed clubbing of both the suits.
9. In that view of the matter, the suit in
O.S.No.543/2010 is ordered to be transferred to the Court
where O.S.No.40/2012 is pending consideration. After the suit
is transferred, the Trial Court shall club both the suits together
and treat the suit in O.S.No.543/2010 as the lead suit, record
common evidence and pass a common judgment.
10. Writ petition stands disposed off with the above
observations.
Sd/-
JUDGE
HJ
