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KARNATAKA HIGH COURT
Anand Byrareddy, J.
Smt. Leelamma —Petitioner
versus
Smt P. Anitha and Ors. —Respondents
Writ Petition No. 13948 of 2008 (GM-CPC) connected with Writ Petition No. 14094 of 2008 (GM-CPC)
Decided on 6.10.2010
For the Petitioner:Sri C.S. Prasanna Kumar for M/s. Kumar and Kumar, M/s. Agnihotri Associates, Sri Keshav R. Agnihotri and Sri B.L. Chandrashekar, Advocates.
For the Respondents:Sriyuths Chalapathy, Srinivas. K. Suman, Omprakash J., R.L. Patil, G.N. Dhananjaya and K. Shashikiran Shetty, Advocates.
IMPORTANT POINT
If issue of law, wrongly determined by Courts below and if same are questioned in writ petition under Article 227 of the Constitution, such petitions falls within supervisory jurisdiction under Article 227 of the Constitution.
Headnote:Constitution of India—Article 227—Civil Procedure Code, 1908— Order XXIII, Rule 1A—Writ petition—Maintainability of—Issues of law wrongly determined by Court below—Challenged in writ petition—High Court, can exercise its supervisory jurisdiction under Article 227 to consider whether there is an error of jurisdiction in decision of a Court or Tribunal subject to its jurisdiction—Order of trial Court, permitting plaintiff in a suit for Partition to withdraw suit as dismissed when in fact two of defendants had filed applications seeking to transpose themselves as plaintiffs, quashed—Trial Court failed to exercise jurisdiction vested in it in having failed to follow mandate prescribed—Suit restored petitioners directed to be transposed as plaintiff—Petition allowed. (Para 6)
Result: Petition allowed.
Anand Byrareddy, J.—These petitions are heard together as they arise out of a common order of the Court below.
2. The brief facts are as follows:
The petitioners in these two respective petitions, were defendants 5 and 6 in a suit for partition filed by respondent 1. The petitioners and respondent 5 herein, and one Prakash Reddy were the children of Chikkarama Reddy. Chikkarama Reddy had inherited ancestral properties, and on his death his children had succeeded to the properties. Prakash Reddy also having died, respondents 1 to 4 are his heirs. The parties are Hindus.
Radhamma, respondent 5, who is the sister of these petitioners had filed a suit for partition in a suit bearing OS No.806 of 2000, before the Court of the City Civil Judge, Bangalore. On an interlocutory application for temporary injunction, restraining the defendants from cutting and removing standing timber on the suit properties, the order was granted.
Anitha, one of the daughter of a late Prakash Reddy had also filed a suit for partition against the same parties in respect of the same properties in a parallel suit in OS No.4287 of 2000, before the Court of the City Civil Judge, Bangalore.
Ramprasad, the son of Prakash Reddy, being aggrieved by the order of junction had preferred an appeal before this Court, on its appellate side, in MFA No.4940 of 2003. On 24.9.2003, the appeal was dismissed as withdrawn. Incidentally, it was stated by the Counsel for the appellant and the Counsel for Radhamma and Anitha (The petitioner though served with notice of the appeal had remained absent and were not represented in the appeal), that the main matter in the respective suit had been amicably settled and each of them sought to file a memo to state that the abovereferred suits had been settled out of Court. This Court dismissed the appeal as withdrawn and directed the registry to transmit the record alongwith the memoranda to the trial Court to enable it to pass appropriate orders on the memoranda.
Thereafter the trial Court, as on 5.11.2003, took note of the memorandum of the plaintiff and dismissed the suit in OS No.806 of 2000, as withdrawn.
The plaintiff in OS No.4287 of 2000, moved the Trial Court seeking dismissal of her suit as having been settled out of Court, as on 27.9.2003. On the same day, the petitioners filed interlocutory applications, one under Order 1, Rule 10(6) of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’ for brevity) and the other under Order 1, Rule 10(2) of CPC, by each of the petitioners, respectively. Those applications having been rejected and the memorandum of the plaintiff having been accepted, the suit was dismissed is withdrawn, by a common order, the same is under challenge in these petitions.
The Trial Court, in the impugned order has taken note of the observations and directions of this Court in the abovereferred appeal and before the memo of the plaintiff, that was sought to be filed by the plaintiff in OS No.4287 of 2000 in the appeal against an interim order passed in OS No.806 of 2000, could be received by the Trial Court, the defendants had filed written statements and counter-claim much before filing the above applications on which the impugned order was passed. The Trial Court has opined that this Court had already recorded the intention of the plaintiffs in the respective suits to withdraw the same as settled out of Court and therefore, recording such withdrawal was only a formality. The Trial Court has further observed that the defendants who were also parties to the parallel suit not having raised any objection for the withdrawal of the same were estopped from doing so in the latter suit.
3. The learned Counsel for the respective petitioners would contend that the reasoning of the Trial Court that this Court had already recorded the intention of the parties to withdraw the two suits and therefore, it was bound to permit such withdrawal was an incorrect interpretation. The appeal was against
