Defendant has already sought partition and separate possession by paying Court Fee and opposes the dismissal/withdrawal, it shall permit such defendant to transpose himself/herself as plaintiff and continue the suit, irrespective of whether he makes an application for transposition or not
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
REGULAR FIRST APPEAL NO.1424 OF 2015
BETWEEN:
1. SUDHA
W/O LATE MALLESH
D/O LATE B N SIDDAPPA
AGED ABOUT 45 YEARS
R/O HALANAHALLI VILLAGE
HARANAHALLI HOBLI, PERIYAPATNA TALUK
MYSURU DISTRICT-560001.
2. BHAGYA
W/O KALAPPA
D/O LATE B N SIDDAPPA
AGED ABOUT 39 YEARS
R./O MULLUSOGE VILLAGE
GONDIBASAVANAHALLI ROAD
KUSHALANAGARA HOBLI, SOMAVARAPETE TALUK
MADIKERI DISTRICT-571234.
... APPELLANTS
(BY SRI P. MAHESH, ADVOCATE)
2
AND:
1. KAVERAMMA
W/O B N NARASAPPA
D/O LATE B N SIDDAPPA
AGED ABOUT 49 YEARS
R/O BYECHANAHALLI I BLOCK
KUSAHALANAGARA HOBLI
SOMAVARAPETE TALUK, MADIKERI DISTRICT-571234.
2. MANJULA
W/O LATE LINGARAJU
AGED ABOUT 43 YEARS
3. SHIVAKUMAR
S/O LATE LINGARAJU
AGED ABOUT 25 YEARS
4. JAGADISH
S/O LATE LINGARAJU
AGED ABOUT 23 YEARS
5. RAMYA @ RAGINI
D/O LATE LINGARAJU
AGED ABOUT 21 YEARS
RESPONDENT NOS.2 TO 5 ARE
R/O MULLUSOGE VILLAGE
GONDIBASAVANAHALLI ROAD
KUSHALANAGARA HOBLI
SOMAVARAPETE TALUK, MADIKERI DISTRICT-571234.
6. GEETHA
W/O LATE RAMESH
D/O LATE B N SIDDAPPA
AGED ABOUT 47 YEARS
3
R/O BASAVAPATNA VILLAGE
UPPARA BEEDI, RAMANATHAPURA HOBLI
ARAJKALAGUDU TALUK-573133, HASSANA DISTRICT.
7. B V MOHITH
S/O B B VISHWANATH
AGED ABOUT MAJOR
R/O SAMPAMJE VILLAGE
MADIKERI TALUK AND DISTRICT-574234.
8. K U SUNITA
W/O UDAYAKUMAR
AGED ABOUT MAJOR
R/O AVAMDUR VILLAGE
MADIKERI TALUK AND DISTRICT-571201.
9 K. A. UDYAKUMAR
S/O LATE ANAND K S
AGED ABOUT MAJOR
R/O AVAMDUR VILLAGE
MADIKERI TALUK AND DISTRICT-571201.
10. L.K.RAMESH
S/O L C KENCHAIAH
AGED ABOUT MAJOR
R/O KIREKODILY VILLAGE
NEERUGUNDA POST, KODILEEPETE HOBLI-571231.
SOMAVARAPETE TALUK, MADIKERI DISTRICT
... RESPONDENTS
(BY SRI P.M.SIDDAMALLAPPA AND SRI UMESH P.H.,
ADVOCATES FOR M/S. MYLARAIAH
ASSTS., FOR R.1 TO R.6
SRI ABHINANDAN AND SRI V.R.BALARAJ,
ADVOCATES FOR R.7 TO R10)
4
THIS RFA IS FILED UNDER SECITON 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 11.09.2015
PASSED IN O.S.NO.87/2014 ON THE FILE OF SENIOR CIVIL
JUDGE AND CJM, AT MADIKERI, KODAGU, DISMISSING THE
SUIT OF THE PLAINTIFF AND ALLOWING THE COUNTER
CLAIM OF DEFENDANT NOS.1 TO 4 THEREIN.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
ORDER
This appeal is filed impugning the order and decree dated 11.9.2015 in O.S.No.87/2014 on the file of the Senior Civil Judge and CJM at Madikeri. The appellants, who were sixth and seventh defendants in the suit in O.S.No.87/2014, are aggrieved by the impugned order and the consequential decree because the trial court, after advancing the hearing of the suit from 16.9.2015 to 11.9.2015 dismissed the suit as not pressed and decreed the counter claim made by the first to fourth defendants for declaration that they are the owners of item no.1 of the suit schedule property. The trial court passed the impugned order accepting the memo filed, and the submission made by the counsel for the plaintiff, that the plaintiff would not press the suit that was instituted for partition of suit schedule properties and that the counter claim made by the first to fourth defendants could be accepted and decreed.
The appeal is listed for admission, and given the facts and circumstances of the case and the grounds urged in support of the appeal, with the consent of the counsel for the appellants and the respondents, the counsel are heard on the merits of the appeal for final disposal.
The learned counsel for the appellants submitted that the appellants, who are sixth and seventh defendants in the suit, filed necessary pleadings in the suit asserting that they were also entitled for a share in the suit schedule properties as claimed by the plaintiff and as such, the trial court could not have passed the impugned order resulting in the consequential decree in favour of the first to fourth defendants without adjudication of the appellants' claim for separate shares merely because the plaintiff filed a memo acceding to the counter claim made by the first to fourth defendants and withdrawing her claim for a share.
The learned counsel for the first to sixth respondents, who are the plaintiff and the first to fifth defendants in the suit, supported the impugned order and decree contending that the appellants cannot be aggrieved by the impugned order and decree, and if they were indeed aggrieved by the impugned order and decree, it was always open to the appellants to initiate necessary suit and establish their claim for a share in such separate suit.
In view of the rival submissions, the question that arises for consideration is:
"Whether the trial court could have passed the impugned order and decree only on the basis of a Memo filed by the plaintiff, and the submissions made by the counsel for the plaintiff on the basis of such Memo, without affording the appellants an opportunity to have a say on whether the appellants also agreed to the same or they wanted to continue to assert their alleged share in the suit schedule properties?"
The facts that are germane are:
The first respondent/plaintiff, the elder daughter of late B.N.Siddappa and late Lakshmamma, instituted a suit in O.S.No.87/2014 asserting one-fifth share in the different properties described in the plaint schedule, arraigning the wife and children (the first to fourth defendant) of her deceased younger brother, three younger sisters (including the appellants) and different third-party purchasers. The appellants, upon being served with notice of the suit, entered appearance through their counsel and also filed a Memo (as stated in the Memorandum of Appeal) claiming separate one-fifth shares in the suit schedule properties in continuation of the assertion made by the plaintiff that the suit schedule properties were purchased by late B.N.Siddappa under a registered sale deed dated 29.3.1994 utilising the sale proceeds received by him from the sale of certain ancestral properties.
The counsel for the plaintiff filed a Memo before the trial court on 8.9.2015 stating that the plaintiff would press neither the suit against the third-party nor the application filed to implead certain other persons. The trial court, in view of the Memo, dismissed the suit as against the eighth to twelfth defendants and also dismissed certain interim applications filed, and the trial court adjourned the suit for hearing to 16.9.2015. But, on an application filed by the plaintiff, the trial court advanced the hearing of the suit to 11.9.2015 and accepting the Memo dated 11.9.2015 filed by the plaintiff, and the submissions made by the counsel for the plaintiff on such Memo, passed the impugned order and decree.
It is in these circumstances that the question as formulated above arises for consideration in this appeal; and the law applicable in these circumstances is laid down by this court in a reported decision in Gowramma vs. Nanjappa, AIR 2002 Kar.76. It would be useful to extract Paragraph 16 of this decision which reads as follows:
"16. The procedure to be adopted by Courts in a partition suit, when a plaintiff wants to withdraw the suit, or when plaintiff wants the suit to be dismissed as settled out of Court with some defendants, can be summarised thus:
(i) When a plaintiff wants a partition suit to be dismissed or withdrawn as settled out of Court, the Court should require notice of such application or memo to all other parties (not only all defendants, but co-plaintiffs if any) and hear the parties.
(ii) If all parties are agreeable for the dismissal or withdrawal, the Court may grant the request.
(iii) If any defendant has already sought partition and separate possession by paying Court Fee and opposes the dismissal/withdrawal, it shall permit such defendant to transpose himself/herself as plaintiff and continue the suit, irrespective of whether he makes an application for transposition or not.
(iv) Even if no defendant has sought the relief of partition and separate possession, till then, the Court may in appropriate cases permit any defendant who files an application in that behalf, to get himself transposed as plaintiff and claim partition and separate possession by paying necessary Court Fee and continue the suit. Refusal to grant such permission should be for valid reasons to be assigned by the Court.
Thus, in view of the law declared, in every suit for partition, if a memo is filed by the plaintiff to withdraw the suit, it is incumbent upon the trial court to verify and record notice of the Memo filed by the plaintiff for withdrawal of the suit and afford an opportunity to the defendant/s to either transpose themselves as plaintiff/s in the suit for adjudication of their claim for separate share/s, if any, or in the alternative, to accede to such request for dismissal of the suit, and in fact, it held by this court in Gowramma vs. Nanjappa (supra) that such opportunity ought to be afforded to the defendant/s not only in cases where a claim is made for separate share/s and sufficient court fee is paid, but also in cases where the defendant is yet to file such claim and pay sufficient court fee.
However, in the case on hand, though admittedly the appellants had filed a Memo, instead of a written statement asserting separate one-fifth shares, the trial court has not recorded that the defendants, including the appellants, were on notice of either the advance application or the Memo dated 11.9.2015 filed by the plaintiff or that the defendants had agreed to the terms of the Memo dated 11.9.2015 filed by the Plaintiff. Therefore, this court is of the opinion that, in view of the law laid down by this court in Gowramma vs. Nanjappa (supra), the trial court could not have proceeded to pass the impugned order and decree without notice of the Memo by the plaintiff to the defendants and without ascertaining whether the defendants/appellants also agreed to the same or intended to transpose themselves as plaintiffs and continue the suit for adjudication for their respective claims for separate shares. As such, the impugned order and decree, at least insofar as the appellants (because the other defendants have not chosen to challenge the impugned order and decree) is liable to be set aside and the suit in O.S.No.87/2014 on the file of the Senior Civil Judge and CJM at Madikeri be restored on the file of the trial court for adjudication of the appellants' claim with opportunity to the appellants in terms of the procedure provided for in Paragraph-16 of the decision of this court in Gowaramma vs. Nanjappa (supra).
Accordingly, the impugned order and decree are modified setting aside the impugned order and decree in O.S.No.87/2014 on the file of the Senior Civil Judge and CJM at Madikeri insofar as the appellants and restoring the suit in O.S.No.87/2014 on the file of the Senior Civil Judge and CJM at Madikeri for adjudication of the appellants' claim in accordance with the procedure provided for in Paragraph -16 of the decision of this court. The appeal is disposed off in terms above. No costs.
Sd/-
JUDGE nv BMSPJ:
24.04.2018 RFA No.1424/2015 ORDER ON 'FOR BEING SPOKEN TO' The matter being listed for 'Being Spoken To', both the learned counsel for the appellants and the respondents submit that the appellants and the respondents shall stand at notice of the first date of hearing before the Trial Court consequent to restoration of the suit and that the date of first hearing could be 06.06.2018.
In view of these submissions, it is ordered that both the appellants and the respondents shall stand at notice of the first date of hearing on 06.06.2018 in O.S.No.87/2014 on the file of the Senior Civil Judge & CJM, Kodagu and they shall appear, either in person or through their counsel, on 06.06.2018 before the Court.
Sd/-
JUDGE nv
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