SRI. FRANCIS SEQUERIA v. SMT. EVELYN MARTIN NEE SEQUERIA

(BY SRI. AMRUTHESH C, ADV.,) AND:

1. SMT. EVELYN MARTIN NEE SEQUERIA W/O LATE MARTIN SEQUERIA AGED ABOUT 78 YEARS R/AT NO.301, SHAH APARTMENT MAROL MAROSHI ROAD ANDHERI EAST, MUMBAI 400059.

2. SRI. EDWARD SEQUERIA S/O LATE SANTHAN SEQUERIA AGED ABOUT 71 YEARS CURRENTLY RESIDING AT B - 11 OMPARAGMILAN, SANTH RAMDAS ROAD MULUND EAST, MUMBAI – 400081.

3. SRI. LEO SEQUERIA S/O LATE SANTHAN SEQUERIA AGED ABOUT 67 YEARS REP. BY HIS GPA HOLDER - 2 - NC: 2026:KHC:33252 W.P. No.2424/2023 HC-KAR SMT. JUDITH SEQUERIA AGED ABOUT 62 YEARS R/AT CICILIA COMPOUND AJJARKAD, UDUPI TALUK AND DISTRICT - 576101.

4. SRI. VIJAYA BARBOZA S/O ALBERT BARBOZA AGED ABOUT 56 YEARS R/AT BIJIKRA KADU, SHIRVA VILLAGE SHANKARAPURA POST UDUPI TALUK -574115.

5. SRI. LETITIA NORONHA W/O LATE MARK NORONHA, MAJOR R/AT AGARAVOLAGAE, NEAR KATTADA HOUSE D NO 3-178, KURKAL VILLAGE SHANKARPURA POST UDUPI TALUK AND DISTRICT - 574115. …RESPONDENTS (BY SMT. AKSHATHA SHETTY K, ADV., FOR R1 TO R3 R4 SERVED V/O/DTD:29.05.2023, NOTICE TO R5 IS D/W) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE RECORDS IN OS.NO.25/2021 ON THE FILE OF II ADDL. SENIOR CIVIL JUDGE AND ACJM,UDUPI. QUASHING THE ORDER DATED 02.01.2023 PASSED ON IA NO.4 IN OS.NO.25/2021, ON HTE FILE OF II ADDL. SENIOR CIVIL JUDGE AND ACJM, UDUPI PRODUCED AS ANNEXURE-J & ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2026:KHC:33252 W.P. No.2424/2023 HC-KAR CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This writ petition is filed challenging the order dated

02.01.2023 passed on IA.No.4 in OS.No.25/2021 by the II Additional Senior Civil Judge and ACJM, Udupi (for short ‘the trial Court’).

2. Heard Sri.Amruthesh C., learned counsel appearing for the petitioner, Smt.Akshatha Shetty K., learned counsel appearing for respondent Nos.1 to 3 and meticulously perused the material available on record.

3. Respondent Nos.1 to 3 filed O.S.No.87/2003 seeking relief of declaration that the properties covered under the alleged partition deed dated 30.06.1988 is not valid and other consequential reliefs. In the said suit, the petitioner herein, who was arrayed as defendant No.1 filed a written statement. Thereafter, the plaintiffs filed a memo dated 09.10.2019 seeking deletion of the words “relief of cancellation” from prayers in paragraph Nos.6(a) and 6(e) - 4 - NC: 2026:KHC:33252 W.P. No.2424/2023 HC-KAR to the plaint. The petitioner objected to the said memo. The trial Court vide order dated 14.11.2019 allowed the memo filed by the plaintiffs.

4. The records indicates that in view of the pecuniary jurisdiction, the plaint was returned presentation before the competent Court. The same was represented before the competent Court and the suit was re-numbered as OS.No.25/2021 and is pending on the file of II Additional Senior Civil Judge and ACJM, Udupi. The plaintiffs represented the plaint without carrying out the amendment as per the memo and the order of the trial Court dated 14.11.2019. Hence, defendant No.1 filed IA.No.4 under Sections 94(e) read with Section 151 and Order VI Rule 16(c) of the Code of Civil Procedure, 1908 (for short ‘CPC’) seeking to strike out prayers in paragraph Nos.6(a) and 6(e) of the plaint on the ground that the plaintiffs, having sought the striking of the said prayers by filing the memo, which had been allowed by the trial Court before transferring the suit. However, without carrying out - 5 - NC: 2026:KHC:33252 W.P. No.2424/2023 HC-KAR the said amendment, the plaint was represented. The plaintiffs filed their objections to the said application. The trial Court under the impugned order dismissed the said application by recording the reason that the memo had been filed only to strike out the words “cancellation of the same” in prayers 6(a) and 6(e) and the Court cannot have a restrictive meaning.

5. The contention of the learned counsel appearing for the respondents/plaintiffs is that the memo filed by the plaintiffs makes it abundantly clear that the plaintiffs sought to withdraw the prayer of cancellation of the instruments referred to in prayers 6(a) and 6(e) of the plaint, and not to withdraw the prayers in their entirety. The said contention cannot be accepted in view of the order dated 14.11.2019 passed by the trial Court before transferring of the suit to the Court of the II Additional Senior Civil Judge and ACJM, Udupi. The operative portion of the order of the trial Court dated 14.11.2019 reads as under: - 6 - NC: 2026:KHC:33252 W.P. No.2424/2023 HC-KAR “The memo filed by the plaintiffs seeking not pressing the prayers in paragraph No.6(a) and 6(e) is hereby allowed.”

6. The aforesaid order makes it clear that a memo filed by the plaintiffs seeking not pressing the prayers in paragraph Nos.6(a) and 6(e) of plaint was allowed. It is required to be noticed that the order of the trial Court dated 14.11.2019 has attained finality and there is no challenge to the said order by the plaintiffs. In the absence of any challenge to the aforesaid order, the contention that the plaintiffs sought only to strike off the words “for cancellation of the same” from prayer in paragraph Nos.6(a) and 6(e) cannot be accepted. It is open for the plaintiffs to challenge the said order in appropriate proceedings in accordance with law. With the aforesaid observations, I proceed to pass the following: i) ii) ORDER The writ petition is allowed. The impugned order dated 02.01.2023 passed on IA.No.4 in OS.No.25/2021 by - 7 - NC: 2026:KHC:33252 W.P. No.2424/2023 HC-KAR the II Additional Senior Civil Judge and ACJM, Udupi is hereby set aside. Consequently IA.No.4 filed by petitioner/defendant No.1 is allowed. No order as to costs. Sd/- (VIJAYKUMAR A. PATIL) JUDGE ABK List No.: 1 Sl No.: 21