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2010 DIGILAW 345 (KAR)

H. LAKSHMI BAI v. V. THIRUVANAKKARASU

2010-03-18

RAVI MALIMATH

body2010
ORDER Petitioners filed a suit for declaration of title and other consequential reliefs. 2. I.A. No. IX was filed by them under Section 10 of the Civil Procedure Code, 1908 to stay further proceedings in HRC No. 457 of 2005 filed by the defendant. I.A. No. X was filed under Order 7, Rule 11(a), (b) and (d) read with Section 151 of the CPC for rejection of the plaint. The Trial Court by the impugned order rejected I.A. No. IX and directed the petitioners-plaintiffs to value the suit property of the actual market value under Section 24(d) of the Karnataka Court Fees and Suits Valuation Act, 1958 (for short, 'the Ace). Aggrieved by the orders passed on IA. Nos. IX and X the present petition is filed. 3. With regard to I.A. No. IX it is contended that the plaintiff 1 is the wife and plaintiffs 2 to 5 are the children of deceased L. Narayana Rao whose father was occupying the suit schedule property as a tenant. The suit property was willed in favour of one Lankappa who willed the same in favour of his sister's son who sold it in favour of one Manoharan who mortgaged it in favour of one Gali Hanumanthappa who mortgaged the same and since the mortgaged was not redeemed, the said Manoharan filed HRC No. 3388 of 1982 against said Narayana Rao who is the father of defendants 2 to 5 and husband of the plaintiff which petition was dismissed in the year 1984. The defendants have filed P and SC No. 58/1984. 4. The learned Counsel contended that since the schedule property is the subject-matter of Will under dispute and the petitioners being tenants in the very same property, HRC No. 457 of 2005 has been filed by the present defendants against the plaintiffs which is pending. However, the present suit has been filed against the defendant who is the plaintiff in HRC No. 457 of 2005. Therefore, it is contended that the subject-matter being the same and the proceedings having been initiated, the applications be allowed. The Trial Court by the impugned order rejected the applications. 5. Heard learned Counsels. 6. It is seen that both the parties being the same and the subject matter of the petition being the same suit schedule property, the Trial Court should have appropriately considered the application and stayed HRC No. 457 of 2005. The Trial Court by the impugned order rejected the applications. 5. Heard learned Counsels. 6. It is seen that both the parties being the same and the subject matter of the petition being the same suit schedule property, the Trial Court should have appropriately considered the application and stayed HRC No. 457 of 2005. Since it is a subsequent suit to the present suit, the failure to stay the subsequent suit would therefore, lead to miscarriage of justice and the legal rights of both the parties would be adversely affected. For the above said reasons, I am of the considered view that I.A. No. IX requires to be allowed by staying further proceedings in HRC No. 457 of 2005. 7. I.A. No. X has been filed by the defendant under Order 7, Rule 11(a), (b) and (d) for rejection of the plaint. The Trial Court on considering the application came to the conclusion that the suit requires to be valued under Section 24(b) of the Act as regards reliefs, (iii) and (iv) and under Section 24(d) of the Act as regards prayer (i). Further, it is contended that the impugned order is bad in law and is liable to be set aside. 8. A perusal of the order sheet of the Court would show that in terms of the order dated 29-11-1999 and the order dated 4-12-1999 in terms of the valuation slip, it was held that the Court fee paid is sufficient. However, in the impugned order there is no reference to the said orders passed by the Trial Court. Therefore, it would be inappropriate to conclude as to whether the Court fee paid is sufficient with reference to the valuation slip filed or whether the Court fee is still required to be paid in terms of the impugned order. In view of the conflicting orders passed by the Trial Court, the Trial Court is hereby directed to reconsider I.A. No. X and pass appropriate orders in accordance with law and with reference to the orders dated 29-11-1999 and 4-12-1999. 9. For the aforesaid reasons, the order dated 18-1-2007 passed on I.A. No. IX is set aside. Consequently, the I.A. No. IX is allowed. 10. The order dated 18-1-2007 passed on I.A. No. X is set aside. The Trial Court shall rehear I.A. No. X and pass orders in accordance with law. Writ petition is disposed of accordingly. 9. For the aforesaid reasons, the order dated 18-1-2007 passed on I.A. No. IX is set aside. Consequently, the I.A. No. IX is allowed. 10. The order dated 18-1-2007 passed on I.A. No. X is set aside. The Trial Court shall rehear I.A. No. X and pass orders in accordance with law. Writ petition is disposed of accordingly. In view of the suit pending since the year 1999, the Trial Court shall hear and dispose off the suit in accordance with law by the end of June 2010. Ordered accordingly.