Karnataka High Court
Mr Harish Kumar vs Late T N Kosalaram on 30 October, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 4351 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.4351 OF 2017 (CPC)
BETWEEN:
1. MR HARISH KUMAR,
S/O SRI T.N.KOSALRAM,
AGED ABOUT 45 YEARS,
OFFICE AT NO.152/2-2
WHEELER ROAD, FRAZER TOWN,
BENGALURU-560 005.
2. SRI.P. MURALI,
S/O SRI T.N.PADMANABHAN,
AGED ABOUT 34 YEARS,
REPRESETNED BY HIS GPA HOLDER
MR. HARISH KUMAR.
BOTH RESIDING AT NO.132,
NARAYANA PILLAI STREET,
Digitally signed
by DEVIKA M CIVIL STATION,
Location: HIGH BENGALURU-560 001.
COURT OF ...APPELLANTS
KARNATAKA
(BY SRI. P.B.RAJU, ADVOCATE)
AND:
LATE T.N.KOSALARAM,
SINCE DECEASED REPRESENTED BY HIS LRS
(I.E., PLAINTIFF NOS.1 AND 2
AND DEFENDANT NOS.2 AND 3)
1. SRI. K.SATISH KUMAR,
S/O SRI T.N.KOSALARAM,
AGED ABOUT 57 YEARS,
R/AT NO.10, 9TH MAIN,
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MFA No. 4351 of 2017
1ST BLOCK, HRBR LAYOUT,
KALYAN NAGAR,
BENGALURU-560043.
2. SRI. K.CHANDRASHEKAR,
S/O SRI. T.N.KOSALARAM,
AGED ABOUT 43 YEARS,
R/AT NO.10, 1ST MAIN,
80 FT PERIPHERAL ROAD,
KORAMANGALA 6TH BLOCK,
BENGALURU-560095.
3. SRI. T.N.PADMANABHAN,
S/O LATE SRI. T.M.NAGARATNAM PILLAI,
AGED ABOUT 78 YEARS,
R/AT NO.132,
NARAYAN PILLAI STREET,
CIVIL STATION,
BENGALURU-560001.
4. SMT. H. GEETHA,
D/O SRI. T.N. PADMANABHAN,
AGED ABOUT 50 YEARS,
RESIDING AT NO.61,
KRYSTAL MANTOR, 6TH MAIN,
2ND STAGE, K.H.B. COLONY,
BASAVESHWARA NAGAR,
BENGALURU-560079.
5. SMT. S. SHARMILA,
D/O SRI. T.N.PADMANABHAN,
AGED ABOUT 49 YEARS,
R/AT NO.1117, 1ST CROSS,
4TH STAGE, T.K.LAYOUT,
KUVEMPUNAGAR,
MYSURU-570 024.
6. SRI. T.N.JAYARAMAN,
S/O LATE SRI. T.M.NAGARATNAM PILLAI,
AGED ABOUT 75 YEARS,
R/AT NO.132,
NARAYANA PILLAI STREET,
CIVIL STATION,
BENGALURU-560 001.
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MFA No. 4351 of 2017
ALL THE ABOVE ARE ALSO
R/AT DOOR NO.132 (OLD NO.162),
NARAYANA PILLAI STREET,
CIVIL STATION,
BENGALURU-560 001.
7. M/S. SOUTH ASIA INSTITUTE OF ADVANCED
CHRISTIAN STUDIES,
P.O.BOX NO.7747,
KOTHANUR POST OFFICE,
BENGALURU-560077,
REP. BY ITS MANAGING TRUSTEE
DR. GRAHAM HOUGHTON.
8. STATE BANK OF MYSORE,
LADY CURZON ROAD,
BENGALURU-560 001.
9. STATE BANK OF INDIA,
MOSQUE ROAD,
RICHARDS TOWN BRANCH,
BENGALURU-560 005.
10. ING VYSYA BANK LIMITED,
BCSE BRANCH, J.C.ROAD,
BENGALURU.
11. CENTRAL BANK OF INDIA,
CANTONMENT BRANCH,
DISPENSARY ROAD,
BENGALURU-560 001.
12. ICICI BANK,
M.G.ROAD BRANCH,
ICICI BANK TOWERS,
COMMISSARIAT ROAD,
BENGALURU-560025.
13. SMT. A. ANITHA,
D/O SRI. T.N.KOSALRAM,
AGED ABOUT 55 YEARS,
R/AT FLAT NO.003,
GROUND FLOOR,
PRANAV TEJASWINI ARCADE,
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MFA No. 4351 of 2017
N.THYAGARAJA LAYOUT,
JAIBHARATH NAGAR,
BENGALURU-560033.
14. SMT. S.SUMATHI,
D/O SRI. T.N.KOSALRAM,
AGED ABOUT 52 YEARS,
R/AT NO.70/1,
SOUTH AVENUE ROAD,
PHASE-1, SATHUVACHARI,
VELLORE-632009
...RESPONDENTS
(BY SRI. M.D.RAGHUNATH ADVOCATE FOR C/R1, R2 TO R6;
SRI S.BHARATH KUMAR, ADVOCATE FOR R13 AND R14;
SRI K.M.A. PERES, ADVOCATE FOR R7;
R8, R9, R10, R11 AND R12 ARE
SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER ORDER 43 RULE (1)(c) OF
CPC, AGAINST THE ORDER DATED 27.03.2017 PASSED IN
MISC.NO.25092/2016 ON THE FILE OF THE XXVIII ADDITIONAL
CITY CIVIL JUDGE, MAYO HALL, BENGALURU, DISMISSING THE
PETITION FILED UNDER ORDER 9 RULE 9 R/W SECTION 151 OF
CPC, TO SET ASIDE THE ORDER IN O.S.NO.27051/2011 DATED
20.06.2016 AND TO RESTORE THE SUIT IN
O.S.NO.27051/2011.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellants, the learned
counsel for respondent Nos.1 to 6 and the learned counsel for
respondent Nos.13 and 14.
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2. This appeal is filed against the rejection order dated
27.03.2017 passed in Misc.No.25092/2016 filed under Order 9
Rule 9 read with Section 151 of CPC and to set aside the order
of dismissal passed by the Trial Court in O.S.No.27051/2011
dated 20.06.2016 and to restore the suit.
3. The factual matrix of the case is that the petitioners
filed O.S.No.27051/2011 against the respondents seeking the
relief of partition and separate possession of 1/10 share in the
th
properties described in the plaint. The case was posted for the
evidence of the plaintiffs as a last chance on 16.06.2016. The
Court by its order dated 20.06.2016 dismissed the suit for non-
prosecution. The petitioners have stated that due to certain
developments, the petitioners were unable to adduce their
evidence. The petitioners filed an application to amend the
plaint and the Court by order dated 02.09.2015 was pleased to
allow the amendment application. The respondents filed their
additional written statement in reply to the amended plaint. The
respondents raised several fresh pleadings in their additional
written statement. Therefore, the petitioners have to file the
rejoinder to the additional written statement. The Court by order
dated 05.01.2016 dismissed the application filed to receive the
rejoinder filed by the petitioners. The petitioners filed
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W.P.No.1685/2016 before the High Court and the same was
dismissed vide order dated 09.02.2016. Against the said order
of the Hon'ble High Court, the petitioners preferred the Special
Leave Petition before the Hon'ble Supreme Court in SLP
No.8205-06/2016. The SLP was admitted on 08.04.2016.
When the petition was pending before the Hon'ble Supreme
Court, an application was filed for appointment of Receiver
under Order XL Rule 1 of CPC and the same was rejected on
17.03.2016 and an appeal in M.F.A.No.2776/2016 was filed. It
is contended that the petitioners were unable to adduce their
evidence in view of the order passed in M.F.A.No.2776/2016.
Though there was a direction of the Hon'ble High Court to
dispose of the suit in O.S.No.27051/2011 within a time bound
period, on account of admission of SLP, evidence was not
commenced and memo was filed before the Trial Court
regarding pendency of SLP and explaining the inability of the
plaintiffs for adducing the evidence. When the case was posted
for evidence on 13.06.2016, an application was filed for
adjournment. Awaiting the outcome of the order of the Hon'ble
High Court, they could not adduce their evidence and sufficient
cause is shown for restoring of the suit.
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4. The respondent Nos.4 and 7 appeared and filed the
statement of objections and the same was adopted by
respondent Nos.2, 5 and 6. The respondent No.8 filed separate
petition. The respondent Nos.14 and 15 have submitted no
objections. The Trial Court having taken note of the grounds
urged in the petition and also the statement of objections,
formulated the point whether there is sufficient cause for their
not leading the evidence. The Trial Court having considered the
material on record i.e., the evidence adduced by the petitioners
and also the documents at Exs.P.1 to 6 and the orders passed
by the Hon'ble High Court in M.F.A.Nos.5484/2013 and
5485/2013, W.P.Nos.41550/2015 and 42344/2015 and
W.P.Nos.1685-1686/2016, which is marked as Ex.R1 to R3,
comes to the conclusion that the petitioners have not made out
any ground to set aside the order.
5. Being aggrieved by the order passed by the Trial
Court, the present appeal is filed. It is contended that the Trial
Court erred in not appreciating the facts and by dismissing the
suit, taken away the rights of the plaintiffs and a suit for
partition has to reach finality on its merits and not on the
ground of not adducing the evidence. The learned counsel
contend that the order passed by the High Court was challenged
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before the Apex Court in SLP Nos.8205-06/2016 and the same
was admitted to decide whether the issue of filing the rejoinder
to the additional written statement would be necessary or not.
Inspite of it, the Trial Court committed an error in dismissing the
miscellaneous petition. The learned counsel brought to the
notice of this Court that the Apex Court while dismissing the SLP
given liberty to the petitioners/plaintiffs to revive the SLP if the
petitioners/plaintiffs succeed in the revision before the High
Court challenging the Order under Order 9 Rule 8 of CPC. The
learned counsel would contend that the suit is for the relief of
partition and this Court can take a lenient view and terms may
be imposed and set aside the order and time bound period may
be given to dispose of the suit.
6. Per contra, the learned counsel for the respondents
would vehemently contend that the suit was filed in the year
2011 and the same was dismissed in 2016. The learned counsel
contend that there was a direction in M.F.A.Nos.5484-
5485/2013 to dispose of the suit within six months and inspite
of specific direction, appellants have not led any evidence. The
learned counsel contend that when the writ petition was filed
against the rejection of the application filed before the Trial
Court, once again there was a direction to dispose of the matter
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by 30.06.2016 and also even in third writ petition also there was
a direction to dispose of the same, but not led any evidence and
maximum period in the subsequent direction was on 30.06.2016
and the suit was also dismissed in the month of June only when
time was given positively to lead evidence and on that day also
not led evidence, but filed an application for adjournment and
the same was rejected. Hence, the appellants have not made
out any ground to set aside the order.
7. Having heard the learned counsel for the appellants
and the learned counsel for the respondents, the suit was filed
in 2011 for the relief of partition and separate possession. It is
important to note that M.F.A.Nos.5484/2013 and 5485/2013
were filed before this Court and a direction was given to dispose
of the suit within a period of six months. It is not in dispute that
subsequently an approach is made before this Court by filing
W.P.Nos.41550/2015 and 42344/2015 and the said writ
petitions were also disposed of with a direction to dispose of the
suit on or before 08.01.2016 and time bound period also given
to complete the evidence and thereafter the defendants also
given time bound time to lead evidence. It is important to note
that there were three directions; one is at the first instance in
2013 to dispose of the suit within six months and the plaintiffs
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have not led any evidence and in 2015 also when the writ
petitions were filed, direction was given to the plaintiffs to lead
evidence on or before 08.01.2016 and thereafter three months
time was given to the plaintiffs to lead evidence fixing the date
for 30.06.2016. The plaintiffs have not led any evidence as per
the direction given in the writ petitions and also in terms of
M.F.A.Nos.5484/2013 and 5485/2013. The material discloses
that the suit is of the year 2011 and the appellants have not
taken any steps to lead evidence as per the directions in MFA
within six months and subsequently when the application was
rejected, writ petition was filed and specific date was given to
complete evidence on or before 08.10.2016 and the
appellants/plaintiffs have not led any evidence. No doubt, SLP
was filed before the Apex Court challenging the dismissal of
W.P.Nos.1685-86/2016. It is also not in dispute that the Apex
Court passed an order to go ahead with the evidence in terms of
the direction given by the High Court and inspite of it, the
appellants have not led the evidence, but an application was
filed for adjournment in the month of April. Even though
direction was given from 2013 to dispose of the matter, the
appellants have not taken any steps to lead evidence within the
time bound period. Hence, it is clear that the appellants have
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not made any effort to lead evidence inspite of directions were
given three times to lead evidence and hence I do not find any
error committed by the Trial Court in dismissing the petition.
8. The Trial Court having considered the grounds urged
and taking note of the order passed by the Court as well as the
rulings of this Court and also the judgment of the Calcutta High
Court and so also the rulings of the Supreme Court, observed in
paragraph No.19 of its order that, it is true that liberal approach
has to be adopted by the Court while considering the fact as to
whether the petitioners have made out sufficient cause for not
leading the evidence. The Trial Court in paragraph Nos.20, 21
and 22 discussed in detail taking note of the specific direction of
the High Court to dispose of the case within the specified time
frame. The suit should have been disposed of on 30.06.2016
itself and the plaintiffs instead of leading the evidence, filed an
application seeking adjournment and the case was posted on
20.06.2016 with a direction to lead the positive evidence. The
plaintiffs have not led evidence on that day also and once again
prayed time on the ground that SLP is pending. Even in SLP
also the Apex Court directed to go ahead with the matter as per
the direction of the High Court and the same has not been
complied inspite of three orders and order of the Apex Court and
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there was no stay of the further proceedings by the Apex Court
in the SLP. The Trial Court taken note of that there was an
order on 04.04.2016 passed by the Supreme Court, wherein it
was made clear that pendency of SLP shall not stand in the way
of the Trial Court in proceeding with the case as directed by the
High Court of Karnataka and the same is observed in paragraph
No.21 of the order of the Trial Court.
9. Having considered all these materials, the Trial Court
comes to the conclusion that the records show that the counsel
appearing for the plaintiffs before the Hon'ble High Court of
Karnataka had undertaken that the plaintiffs would complete
their evidence within the specified time framed and had given
consent for fixing the time frame for disposal of the suit. The
pendency of the M.F.A. before the Hon'ble High Court of
Karnataka against the order rejecting the application for
appointment of the Commissioner will not be a hurdle in the way
of the plaintiffs proceeding with the trial of the case and hence
comes to the conclusion that the petitioners have not shown
that they were prevented by any sufficient cause from leading
the evidence. Having perused the contentions of the learned
counsel for the respondents and the grounds which have been
urged in the appeal and when series of directions are given, the
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appellants have not commenced the evidence and hence I do
not find any ground to interfere with the order of the Trial Court.
10. The learned counsel for respondent Nos.13 and 14
submits that he has no objection to allow the appeal and set
aside the order. On mere saying of no objection by the other
party, this Court cannot grant such a relief. The Trial Court
particularly taken note of Exs.R1 to 3 i.e., directions given in
M.F.A.Nos.5484/2013 and 5485/2013, W.P.Nos.41550/2015 and
42344/2015 and W.P.Nos.1685-16/2016 and also taken note of
the directions given by the Apex Court, wherein it is made clear
that the plaintiffs have to proceed as per the directions of the
High Court and no such effort was made and even not
commenced the evidence and hence there is no ground to show
lenience as contended by the learned counsel for the appellants
that even terms may be imposed and set aside the order and
such circumstance is not warranted when the appellants have
deliberately not led any evidence. The very contention of the
learned counsel for the appellants that there is no intentional
delay on the part of the appellants, cannot be accepted. Hence,
no ground is made out since suit is of the year 2011 and the
same was dismissed in 2016 and it does not requires any
interference of this Court.
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11. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD
