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2012 DIGILAW 666 (KAR)

V. Srinivas v. V. Varadaraju

2012-08-13

B.S.PATIL

body2012
ORDER B.S. PATIL, J.—In this civil petition filed under Section 24 of CPC, petitioner is seeking a direction to withdraw O.S. No. 4/2005 filed by respondent No. l herein pending on the file of Civil Judge (Jr. Dn.), Kanakapura, and transfer the same to the Court of the Additional City Civil Judge, Bangalore City, to be tried along with O.S. No. 753/2007 filed by the petitioner. 2. Both the suits are filed seeking partition and separate possession of the joint family properties. Petitioner and respondent Nos. 1, 3 and 4 allegedly constitute members of the family entitled for share in the joint family properties. The other respondents who are arrayed as parties to this petition are not the co-sharers. 3. The first suit in O.S. No. 4/2005 is filed by respondent No. 1 - Sri V. Varadaraju against his brother - petitioner herein and two sisters Smt. Padmavathi and Prema - respondent Nos. 3 and 4 herein. He has sought for partition and separate possession of seven items of landed properties situated at Huluvagondanahalli village in Kanakapura Taluk. Petitioner herein has appeared and filed his written statement and counter claim. In the counter claim filed by him on 17.02.2005, he has included several other properties describing them as counter claim schedule properties and contending that they have been wrongly and purposefully omitted by respondent No. l herein from the suit filed by him in O.S. No. 4/2005.Petitioner-plaintiff has, therefore, sought for dismissal of the suit O.S. No. 4/2005 and has sought for decreeing the counter claim made by him directing partition of the properties mentioned by him in the counter claim. 4. After a lapse of two years from the date of filing of the suit by respondent No. 1, petitioner has filed another suit in O.S. No. 753/2007 on the file of the Additional City Civil Judge, Bangalore, including all the properties which are the subject matter of suit schedule property in O.S. No. 4/2005 and also all the properties which are the subject matter of counter claim filed by the petitioner in the said suit. It is necessary to notice here that as submitted by the Counsel for respondent No. l, the later suit is stayed by the Court in view of the pendency of the earlier suit in O.S. No. 4/2005. 5. Learned Counsel for the petitioner Mr. It is necessary to notice here that as submitted by the Counsel for respondent No. l, the later suit is stayed by the Court in view of the pendency of the earlier suit in O.S. No. 4/2005. 5. Learned Counsel for the petitioner Mr. Hegde Hudlamane submits that as the later suit filed by the petitioner is a comprehensive one and as there is no jurisdictional issue involved to effectively try this suit, it just and proper to withdraw the suit pending before the Civil Judge (Jr. Dn.), Kanakapura, and transfer the same to the Court of City Civil Judge, Bangalore, to be tried along with O.S. No. 753/2007. He contends that two proceedings in different Courts, if permitted to be tried separately, would result in conflict of decisions and in order to avoid multiplicity of proceedings, it is necessary to transfer the suit from the Court of Civil Judge (Jr. Dn.), Kanakapura, to the City Civil Court, Bangalore. In this regard he has placed reliance on the judgments in the case of Smt. Swarna Gouri vs. Sri Vinayak Pujar, ILR 2007 Kar. 4561 and in the case of Baselius Mar Thoma Mathews and others vs. Paulose Mar Athanasius and others, AIR 1979 SC 1909 . 6. Counsel for respondent Nos. 1 and 2 strongly refutes the contentions urged by the petitioner and submits that the petitioner was not entitled to maintain the second suit and that as the petitioner has filed a counter claim and included all the properties which are now part of the suit O.S. No. 753/2007, the prayer made cannot be granted. 7. Having heard the learned Counsel for the parties and on careful perusal of the pleadings in both the suits, the parties arrayed thereto and the suit properties in respect whereof relief is sought, it is clear that respondent No. l herein has filed O.S. No. 4/2005 seeking partition and separate possession in respect of landed properties situated at Kanakapura. He has made the petitioner herein and his two sisters as party defendants. Petitioner herein has appeared in the said suit and has filed his counter claim. He has resisted the suit contending that all the joint family properties are not included in the suit. However, he has chosen to file the second suit before the Court at Bangalore on the ground that those properties are situated at Bangalore. Petitioner herein has appeared in the said suit and has filed his counter claim. He has resisted the suit contending that all the joint family properties are not included in the suit. However, he has chosen to file the second suit before the Court at Bangalore on the ground that those properties are situated at Bangalore. The second suit is now stayed. In such circumstances, it is neither just nor proper to withdraw the suit pending in O.S. No. 4/2005 to be tried along with the suit filed before the City Civil Judge at Bangalore. The judgments on which reliance is placed by the learned Counsel for the petitioner have no application to the facts of the present case. 8. In the result and for the foregoing, this civil petition is dismissed.