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2024 Supreme(Online)(KAR) 6115
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY, 2024 BEFORE THE HON'BLE MRS JUSTICE M G UMA WRIT PETITION NO. 15447 OF 2017 (GM-CPC)
C/W WRIT PETITION NO. 22771 OF 2017 (GM-CPC)
BETWEEN:
KRISHNAMMA W/O T.N. KRISHNA MURTHY AGED ABOUT 52 YEARS, R/AT JAMPENAHALLY VILLAGE, C.N. DURGA HOBLI, KORATAGERE TALUK TUMKUR DISTRICT - 572 012 …COMMON PETITIONER (BY SRI: B.K. MANJUNATH, ADVOCATE)
AND:
1. ABDUL RAZAK S/O ABUL MUNAF AGED ABOUT 56 YEARS, Digitally R/O KORATAGERE TOWN signed by KORATAGERE TALUK, PAVITHRA N TUMKUR DISTRICT - 572 102 Location:
high court of karnataka 2. NARAYANAPPA S/O GOPALAIAH AGED ABOUT 57 YEARS, R/AT JAMPENAHALLY VILLAGE, C.N. DURGA HOBLI, KORATAGERE TALUK, TUMKUR DISTRICT - 572 012
3. NAGARAJU S/O GOPALAIAH AGED ABOUT 47 YEARS, R/AT JAMPENAHALLY VILLAGE, C.N. DURGA HOBLI, KORATAGERE TALUK, TUMKUR DISTRICT - 572 012
4. PARAVATHAMMA W/O HANUMANTHRAYAPPA AGED ABOUT 57 YEARS, WORKING IN KPTCL OFFICE NITTUR GUBBI TALUK, TUMKUR DISTRICT - 572 102 …COMMON RESPONDENTS (BY SRI: RAVIVARMA KUMAR, SENIOR ADVOCATE FOR SRI: KAMARAJU, ADVOCATE FOR R1, R2, 3, 4 - SD)
WRIT PETITION NO.15547 OF 2017 IS FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS AND QUASH THE ORDER PASSED BY THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE AT MADHUGIRI ON MIS.2/2013 DTD.23.2.2017 ON ORDER 9 RULE 13 R/W 151 OF CPC VIDE ANNEX- G AND QUASH THE ORDER PASSED BY THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE AT MADHUGIRI ON I.A.NO.5 IN MIS.2/2013 VIDE ANNEX-K DTD.27.1.2017 AND ETC., WRIT PETITION NO.22771 OF 2017 IS FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS AND QUASH THE ORDER PASSED BY THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE AT MADHUGIRI ON I.A.1 IN MIS.2/2013 AT ANNEX-H DTD.28.4.2017 ISSUING A WRIT OF CERTIORARI AND ETC., THESE WRIT PETITIONS, COMING ON FOR PRELIMINARY HEARING - B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
COMMON ORDER
The plaintiff in OS.No.143/2004 on the file of the learned Prl.Sr.Civil Judge and JMFC., Madhugiri being respondent No.1 in Misc.No.2/2013 has filed the WP.No.15447/2017 impugning the order dated 27.01.2017 allowing IA No.5 filed under Section 94(e) R/w Section151 of CPC and staying the further proceedings in FDP No.12/2008 pending on the file of Addl.Senior Civil Judge and JMFC., Madhugiri till disposal of the petition.
2. He has also filed WP.No.22771/2017 impugning the order dated 28.04.2017 passed in Mis.No.2/2013 permitting the respondent herein lead evidence on IA No.I filed under Section 5 of limitation Act and also on merits.
3. Heard Sri. B.K.Manjunath, learned counsel for the petitioner and Sri. Ravivarma Kumar, learned Senior Advocate for Sri. Kamaraju, learned counsel for the respondent No.1.
4. Learned counsel for the petitioner submits that petitioner being the plaintiff before the trial Court in OS.No.143/2004 filed the suit for partition and separate possession of his share over the schedule property.
5. Defendant No.1 in the said suit remained exparte and has not contested the suit. The trial court after holding full- fledged trial, decreed the suit vide judgment and decree dated 11.04.2008. In the meantime, when the suit was filed, an order to maintain status-quo was passed on 07.12.2004. Even though defendant No.1 has not contested the suit, she sold the subject property under the registered sale deed dated 20.12.2004 in favour of respondent No.1 herein, during subsistence of the order to maintain status-quo passed by the trial Court. Defendant No.1 never challenged passing of the judgment and decree by trial Court decreeing the suit. However, respondent No.1 being the purchaser of the property filed Mis.No.2/2013 seeking to set-aside the exparte decree and the same is still pending consideration.
6. Learned counsel for the petitioner submitted that even though the petitioner raised his objection regarding maintainability of the petition, the Trial Court proceeded to pass the impugned order dated 27.01.2017 allowing IA No.5 and staying the further proceedings in FDP No.12/2008 and also proceeded to pass the impugned order 28.04.2013 permitting petitioner to lead his evidence on IA No.I and also on merits.
7. Learned counsel contended that in view of the decision of Hon'ble Apex Court in "STATE OF WEST BENGAL AND OTHERS VS. SOMDEB BANDYOPADHAYAY AND OTHERS"1 position of law is very well settled that unless the Court considers the application for condonation of delay i.e., IA No.I pending before the Trial Court, it would not get jurisdiction to consider the other applications filed by the respondent before it. Therefore, the impugned order suffers from illegality and prays for allowing the petition by setting aside both the impugned orders in the interest of justice.
8. Per contra, learned Senior Advocate for the respondents opposing the petition submitted that, the trial Court considered the grounds made out in the petition i.e., fraud, mis-representation played by plaintiff in obtaining exparte decree for partition and separate possession and proceeded to pass the impugned order vide well reasoned orders. IA No.I filed under Section 5 of Limitation Act is still pending for consideration and the respondents have no (2009)2 SCC 694 objection for leading evidence, seeking condonation of delay. However, in the meantime, since the petitioner was proceeding to prosecute FDP No.12/2008, the impugned order was came to be passed taking into consideration the interest of both the parties. There are no reasons to interfere with the impugned order and prays for dismissal of both the petition.
9. Admittedly, petitioner as plaintiff filed OS.No.143/2004 before the Trial Court seeking partition and separate possession of schedule properties. It is also admitted that defendant No.1 has not contested the matter and she was placed exparte. It is stated that defendant No.1 during the pendency of the suit in violation of t
