Smt. Ramakka vs Smt. Nagamma and Others

Jawad Rahim

This revision is directed against the order in Misc. No. 58/2011 dismissing the petition filed u/s 24 of the Code of Civil Procedure.

The petition is belated by 12 days. Application is filed seeking condonation.

Heard. The delay of 12 days in filing the revision is condoned. At this stage, it became necessary to ascertain whether the petition merits admission. Hence. I have requested the learned counsel to address on those aspects.

According to the petitioner, the respondents Smt. Nagamma, Smt. Jayamma and others have filed a suit in O.S. No. 94/2000 seeking partition of the properties described in the plaint on the plea that they have a definite share. The petitioner herein Smt.Ramakka was originally not brought in the party array. She filed an application to implead herself on the ground that she has a definite share in the properties and that all properties are not listed in the schedule for partition. The application filed by her is allowed and she is now defendant No. 3 in the trial Court in O.S. No. 94/2000. Later, the plaintiffs brought one more Item of the property for partition. The petitioner appears to have filed an application in the said suit stating that the value of the item No. 4 is much higher and more and questioned the pecuniary jurisdiction of the learned Civil Judge, Junior Division, That application is pending. Later, she filed O.S. No. 85 in the year 2011. on the file of Civil Judge, Senior Division, Devanahalli.

After filing O.S. No. 85/2011, she approached the District judge, Bangalore Rural District u/s 24 of the CPC to withdraw O.S.No 94/2000 on the file of Civil Judge, Junior Division, Devanahalli to be assigned to Civil Judge, Senior Division to be tried with O.S. No. 85/2011.

The learned District Judge by the impugned order has rejected the request.

from the facts which are not in dispute, it is seen O.S. No. 94/2000 is filed for partition in which the petitioner herein is a third defendant. Similarly, in O.S. No. 85/2011, the petitioner is a plaintiff while the other parties in O.S. No. 94/2000 are the defendants. The principal prayer is to partition the property described in the schedule. Therefore, parties are same, relief sought is same and subject matter of the suit is same. The rights claim by the plaintiffs are the same. Therefore, decision in O.S. No. 94/2000 will certainly have a bearing on the decision in O.S. No. 85/2011. Since in the previously instituted suit, in O.S. No. 94/2000, same relief was sought as in O.S. No. 85/2011, the provision of Section 10 of the CPC applies and O.S. No. 85/2011 is actually to be stayed pending decision in O.S. No. 94/2000. In this fact position, the petitioner has sought withdrawal of the suit filed by her which relief was certainly not grantable in the fact situation.

Under the circumstances, I find no merit in the petition against the impugned order. Consequently, the petition is dismissed confirming the order of the trial Court.