Writ Petition No. 31136 of 2010 · Karnataka High Court · 2010

SRI R T HONNAPPA S/O LATE THIMME GOWDA AGED ABOUT 45 YEARS SRI PUTTASWAMY GOWDA S/O LATE THIMME GOWDA AGED ABOUT 43 YEARS 4 SRI JAGDEESHA S/O LATE THIMME GOWDA AGED ABOUT 35 YEARS ALL ARE R/AT RYASAMUDRA VILLAGE SEELANERE HOBLI K R PET TALUK. 5 6 7 8 2 SMT SHARADAMMA D/O LATE THIMME GOWDA AGED ABOUT 52 YEARS W/O CHANNAKESHAVA GOWDA R/AT HINCAL MYSORE SMT YASHODAMMA D/O LATE THIMME GOWDA AGED ABOUT 58 YEARS W/O MALLE GOWDA D.NO.16/5, BEML NAGAR MYSORE SMT SUJAYAMMA D/O LATE THIMME GOWDA AGED ABOUT 48 YEARS W/O CHANNAKESHAVA GOWDA SARANGI VILLAGE, SANTHE BACHAHALLI HOBLI K R PET TALUK SRI PUTTASWAMY GOWDA S/O LATE THIMME GOWDA AGED ABOUT 43 YEARS R/AT RYASAMUDRA VILLAGE SEELANERE HOBLI K R PET TALUK. ...PETITIONERS ( BY SRI. N S SANJAY GOWDA & SRI BYREGOWDA N, ADVOCATES) 3 AND : SUBBEGOWDA DEAD BY LRS 1 2 3 SMT NINGAMMA W/O LATE SUBBE GOWDA AGED ABOUT 70 YEARS SRI THIMME GOWDA S/O LATE SUBBE GOWDA AGED ABOUT 70 YEARS SRI ANNAPPA GOWDA S/O SUBBE GOWDA AGED ABOUT 70 YEARS ALL ARE R/AT RYASANDRA VILLAGE SEELANERE HOBLI K R PET TALUK. R2 AND R3 TREATED AS LR'S VIDE COURT ORDER DATED 3.1.2012. 4 SRI VENKATAPPA S/O THIMME GOWDA AGED ABOUT 66 YEARS R/AT RYASANDRA VILLAGE SEELANERE HOBLI K R PET TALUK SINCE DEAD BY LRS AMENDED AS PER COURT ORDER DATED 03.01.2012 4(a) SMT DEVAMMA W/O LATE VENKATAPPA AGED ABOUT 76 YEARS R/AT RAYASAMUDRA VILLAGE, 4 SEELANERE HOBLI, K.R.PET TALUK, MANDYA DISTRICT. 4(b) R.V.JAYAMMA W/O HONNAPPA GOWDA AGED ABOUT 62 YEARS, R/A JAGANAKERE POST VILLAGE, CHITTARADA HATTI, SUDHA, SANTHEBACHALLI HOBLI, K.R.PET TALUK, MANDYA DISTRICT. 4(c) R.V.NARAYANA GOWDA S/O LATE VENKATAPPA AGED ABOUT 58 YEARS R/A RAYASAMUDRA VILLAGE SEELANERE HOBLI, K.R.PET TALUK, MANDYA DISTRICT. ...RESPONDENTS ( BY SRI. M S PRAKASH, ADVOCATE, FOR R3 SMT.SUNITHA P.A., ADVOCATE FOR R2 SRI M.V.VASANTH, ADVOCATE FOR R4(a-c) R2 & R3 ARE LRS OF DECEASED OF R1 ) **** THIS WRIT PETITION FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDERS DATED 17TH JUNE 2010 PASSED BY THE LEARNED CIVIL JUDGE (JUNIOR DIVISION) & JMFC, K.R.PET PASSED ON I.A.XXX & XXXI IN OS.NO.144/1989 VIDE ANNEXURE-G AND CONSEQUENTLY ALLOW IA XXX & XXXI AS PRAYED FOR IN ITS ENTIRETY. 5 WP. NO.3898 OF 2010: BETWEEN : SRI ANNAPPA S/O KAPPANNA GOWDA AGED 54 YEARS R/A RAYASAMUDRA VILLAGE SEELANERE HOBLI, KRISHNARAJAPET TALUK MANDYA DISTRICT. ...PETITIONER ( BY SRI. M S PRAKASH ) AND : 1 2 3 4 5 SMT NINGAMMA W/O LATE SUBBEGOWDA AGED ABOUT 65 YEARS R1-EXPIRED R2 IS THE LR OF R1. SRI THIMMEGOWDA S/O SUBBEGOWDA AGED ABOUT 65 YEARS SMT NANJAMMA W/O LATE THIMMEGOWDA AGED ABOUT 85 YEARS R T HONNAPPA S/O LATE THIMMEGOWDA AGED ABOUT 56 YEARS PUTTASWAMY GOWDA S/O LATE THIMMEGOWDA 6 7 8 9 6 AGED ABOUT 50 YEARS SRI JAGADEESHA S/O LATE THIMMEGOWDA AGED ABOUT 45 YEARS SMT SHARADAMMA W0/ CHANNAKESHAVAGOWDA D/O LATE THIMMEGOWDA, C/O RAGI RAMANNA AGED ABOUT 63 YEARS R/A HINCAL, MYSORE SMT YASHODAMMA W/O MALLEGOWDA D/O LATE THIMMEGOWDA AGED ABOUT 60 YEARS R/A DOOR NO.3131, I CROSS ROAD, 19TH MAIN ROAD, VIJAYANAGAR II STAGE, MYSORE DISTRICT. SMT SUJAYAMMA D/O LATE THIMMEGOWDA AGED ABOUT 58 YEARS R/A SARANGI VILLAGE SANTHEBACHALLI KRISHNARAJAPET TALUK MANDYA DISTRICT. 10 PUTTASWAMY GOWDA S/O LATE THIMMEGOWDA AGED ABOUT 50 YEARS 11 SRI VENKATAPPA S/O LATE THIMMEGOWDA 7 AGED ABOUT 78 YEARS RESPONDENTS NOS.1 TO 6, 10 & 11 ARE ALL R/A RAYASAMUDRA VILLAGE KRISHNARAJAPET TALUK MANDYA DISTRICT. SINCE DEAD RESPRESENTED BY HIS LR'S AMENDED AS PER COURT ORDER DATED 03.01.2012. 11(a) SRI R.V.NARAYANA GOWDA S/O LATE VENKATAPPA AGED ABOUT 55 YEARS R/AT RAYASAMUDRA VILLAGE, KRISHNARAJA PET TALUK, MANDYA DISTRICT. 11(b) SMT.JAYAMMA D/O LATE VENKATAPPA W/O HONAPPA GOWDA AGED ABOUT 58 YEARS RESIDING AT JAGINAKERE VILLAGE, K.R.PET TALUK, MANDYA DISTRICT. 11(c) SMT.DEVAMMA W/O LATE VENKATAPPA AGED ABOUT 72 YEARS RESIDING RAYASAMUDRA VILLAGE, KRISHNARAJAPET TALUK, MANDYA DISTRICT. ..RESPONDENTS ( BY SRI. N S SANJAYGOWDA FOR R3-9 ) 8 THIS WRIT PETITION FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXURE-A BY SETTING ASIDE THE ORDER PASSED BY THE CIVIL JUDGE (JUNIOR DIVISION) & JMFC, KRISHNARAJAPET DATED 14.12.2009 ON I.A.NO.25 IN O.S.NO.144/1989. THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THIS COURT MADE THE FOLLOWING:- ORDER The plaintiff filed a suit for partition and consequential reliefs. The plaintiff died on 12th August, 2008. On the death of the plaintiff by the order dated 14-12-2009 the suit was dismissed as having abated. I.A.30 was filed by the defendants 2(c) under Order 1 Rule of CPC seeking to set aside the abatement order passed on 14th December, 2009. I.A.31 filed by him was for transposing the LRS of the 2nd defendant as plaintiff and to proceed with the suit. By the order dated 17th June, 2010, I.A.Nos. 30 and 31 were rejected. Aggrieved by the same the Writ Petitions Nos.31136/2010 and W. P. No.3898/2010 have been filed. I.A.25 was filed by the applicant under Order 22 Rule 3 9 permitting him to come on record as L.Rs of the deceased plaintiff. The trial Court dismissed the said applications. Hence, he has filed Writ Petition No.3898/2010. Since the subject matter involved is one and the same, at the request of both the counsels the matter is taken up for final hearing together.

2. Heard the petitioners' counsel in both the Petitions and the respective respondents. While considering I.A.No.30 seeking to set aside the abatement order on 14-12-2009, the trial Court was of the view that the applicant should have within 90 days filed the said application seeking condonation and setting aside the abatement. Since the applicant was well aware of the proceedings this application filed without application for condonation of delay requires to be rejected. Hence, it was dismissed. On I.A.31 the trial Court held that since it has 10 declined to grant relief on I.A.30 there is no question of permitting the applicant to come on record as plaintiff. While considering I.A.25 filed under Order 22 Rule 3 read with Section 151 of CPC it held that in the absence of the legal representative of the plaintiff to continue the suit the very suit would stand abated and if at all the defendants have any right they shall have to work out their remedy in the independent proceedings and not in the proceedings where the suit of the plaintiff stands abated. Hence, the application is rejected.

3. On hearing the counsels I’am of the considered view that the reasoning adopted by the trial Court while dismissing all the three applications is erroneous and liable to be set aside. The suit is one for partition. The order passed by the trial Court dated 14-12-2009 holding that the suit is abated is erroneous. There cannot be an abatement 11 in a suit for partition. Therefore, it is to be construed that as the suit is for partition each one of them would necessarily have a right so far as schedule property is concerned as well as to come on record either as legal representative of the respondents or successors. The finding of the trial Court on all the three issues is therefore erroneous and is liable to be set aside. For the aforesaid reasons I.A.25 filed under Order 22 Rule 3 read with Section 151 of CPC is allowed. The order dated 14th December, 2009, is set aside. Consequently I.A.Nos. 30 & 31 are allowed. The impugned order dismissing both these I.A.s dated 17th June, 2010 is set aside. The suit is restored. Both the Petitions are disposed off accordingly. Sd/- JUDGE