: 1 :

IN THE HIGH COURT OF DHARWAD BENCH

DATED THIS THE 12TH DAY OF MARCH 2019

BEFORE

THE HON’BLE MR.JUSTICE KRISHNA S.DIXIT

WRIT PETITION NO.101427 OF 2018 [GM-CPC]

BETWEEN

SHRI MANOHAR S/O. NARAYAN KURANKAR, AGE 62 YEARS, OCC: BUSINESS, R/O. GANGA NIVAS,CTS 3654, TMC 2838, KURANKAR CHAWL, SANKESHWAR-590313, TALUKA , DISTRICT BELAGAVI. ... PETITIONER

(BY SMT.SUNANDA P.PATIL, ADVOCATE)

AND

SHRI ASHOK S/O NARAYAN KURANKAR, SINCE DECEASED BY HIS LRS.

1. SMT.JAYASHREE W/O SUHAS PATIL, AGE 49 YEARS, OCC: HOUSEHOLD, R/O.CTS NO.3654, KURANKAR CHAWL, SANKESHWAR-591313, TALUK , DIST: BELAGAVI.

2. SMT.LEENA W/O SATISH BELAGONKAR, AGE 46 YEARS, OCC: HOUSEHOLD WORK, R/O.CTS NO.5930, SWAMI VIVEKANAND NAGAR, III CROSS, TILAKWADI, DISTRICT BELAGAVI-590006.

3. SHRI INDRAJEET S/O ASHOK KURANKAR, AGE: 33 YEARS, OCC: BUSINESS,

: 2 :

R/O.CTS NO.3654, KURANKAR CHAWL, SANKESHWAR-591313, TALUK: HUKKERI, DIST: BELAGAVI. SMT.REKHA W/O ASHOK KURNAKAR, SHRI ABHIJEET S/O ASHOK KURANKAR, WHO ARE ALREADY ON RECORD AS DEFENDANTS 7 AND 18 - RESPONDENTS 9 AND 2O.

4. SHRI PRAKASH S/O NARAYAN KURNAKAR, AGE 68 YEARS, OCC: BUSINESS, R/O:GANGA NIVAS, CTS NO.3654, TMC 2838, KURANKAR CHAWL, SANKESHWAR-591313, TALUK HUKKERI, DIST: BELAGAVI.

5. SHRI RAMESH S/O NARAYAN KURANKAR, AGE 65 YEARS, OCC: BUSINESS, R/O:GANGA NIVAS, CTS NO.3654, TMC 2838, KURANKAR CHAWL, SANKESHWAR-591313, TALUK: HUKKERI, DIST: BELAGAVI.

6. SMT.YASHODHARA @ PREMA W/O AJITSINGH CHAVAN AGE 69 YEARS, OCC: HOUSEHOLD R/O: NARASINGH NIVAS NEAR SHIVANI MANTAP, KOLHAPUR, DIST: KOLHAPUR-416001.

7. SHRI AJIT S/O SHANKARRAO KURANKAR, AGE: 47 YEARS, OCC: BUSINESS, R/O:TMC 2838, KURANKAR CHAWL, SANKESHWAR-591313, TALUK HUKKERI, DIST: BELAGAVI

8. SMT.SHANTABAI W/O SHANKARRAO KURANKAR, AGE 80 YEARS, OCC: HOUSEHOLD, R/O:TMC 2838, KURANKAR CHAWL, SANKESHWAR-591313, TALUK: HUKKERI, DIST: BELAGAVI.

9. SMT.REKHA W/O ASHOK KURANKAR, AGE 68 YEARS, OCC: HOUSEHOLD, R/O:GANGA NIVAS, CTS.3654 TMC 2838,

: 3 :

KURANKAR CHAWL, SANKESHWAR-591313, TALUK HUKKERI, DIST: BELAGAVI.

10. SMT.PUJA W/O PRAKASH KURANKAR, AGE 63 YEARS, OCC: HOUSEHOLD, R/O:GANGA NIVAS, CTS.3654 TMC 2838, KURANKAR CHAWL, SANKESHWAR-591313, TALUK HUKKERI, DIST: BELAGAVI.

11. SMT.SHAILAJA W/O RAMESH KURANKAR, AGE 60 YEARS, OCC: HOUSEHOLD, R/O:GANGA NIVAS, CTS.3654 TMC 2838, KURANKAR CHAWL, SANKESHWAR-591313, TALUK HUKKERI, DIST: BELAGAVI.

12. SMT.MADHURI W/O MANOHAR KURANKAR, AGE:54 YEARS, OCC:BUSINESS, R/O:GANGA NIVAS, CTS.3654 TMC 2838, KURANKAR CHAWL, SANKESHWAR-591313, TALUK HUKKERI, DIST: BELAGAVI.

13. SMT.KAMAL @ SHEETAL W/O BALASAHEB ASWALE AGE 59 YEARS, OCC: HOUSEHOLD, R/O:H.NO.108/10, UMESH HOUSING SOCIETY, CHINCHAWAD, POONA-411019, MAHARASTRA STATE.

14. SMT.VIJAYAMALA W/O RAMACHANDRA (BABURAO) NALAWADE AGE 57 YEARS, OCC: HOUSEHOLD, R/O: ROAD, SANKESHWAR-591313 TALUKA HUKKERI, DISTRICT BELAGAVI.

15. SMT.SUNITA @ MAHADEVI W/O NIVASAO SHINDE, AGE 55 YEARS, OCC: HOUSEHOLD, R/O:MANGALWAR PETH, KHARI CORNER, KOLHAPUR-416001, MAHARASTRA STATE.

16. SMT.ANITA W/O SHIVAJIRAO KURADE, AGE 53 YEARS, OCC: HOUSEHOLD, R/O:302/A, VIGHNA APARTMENT, CURRY ROAD, NAKA, LOWER PAREL,

: 4 :

MUMBAI-400013, MAHARASTRA STATE.

17. SMT.VAISHALI W/O CHANDRAKANT DESAI, AGE 48 YEARS, OCC: HOUSEHOLD, R/O:AT POST:SONALI GARGOTI-416209, TALUKA:BHUDARGAD, DIST: KOLHAPUR, MAHARASTRA STATE.

18. SMT.GEETA W/O VILASRAO KALEKAR, AGE 46 YEARS, OCC: HOUSEHOLD, R/O:GANGA GOVIND NIVAS, TELVEKAR GALLI, AT POST: GADHINGLAJ-416502 DISTRICT KOLHAPUR, MAHARASTRA STATE.

19. SHRI SHIVAPUTRA S/O SHANKAREPPA SHIRAKOLI, AGE 72 YEARS, OCC: BUSINESS, R/O:AZAD ROAD, SANKESHWAR-591313 TALUK HUKKERI, DISTRICT BELAGAVI.

20. SHRI ABHIJIT S/O ASHOLK KURANKAR, AGE:40 YEARS, OCC:BUSINESS, R/O:CTS NO.3654, KURANKAR CHAWL, SANKESHWAR-591313, TALUKA: HUKKERI, DISTRICT BELAGAVI. ... RESPONDENTS

(BY SRI.B.S.KAMATE, ADVOCATE FOR R7 & R8; R1-R6 & R9-R20 – NOTICE DISPENSED WITH)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF , PRAYING TO QUASH THE ORDER DATED 27.01.2018 ON IA LIV IN OS 23/2000 PRODUCED AT ANNEXURE-K PASSED BY THE SENIOR CIVIL JUDGE, HUKKERI.

THIS PETITION COMING ON FOR ORDERS REGARDING HEARING ON INTERLOCUTORY APPLICATION , THIS DAY, THE COURT MADE THE FOLLOWING:-

: 5 :

ORDER

In the compressive suit for partition and separate possession of properties, two of the defendants i.e., the contesting respondents herein has moved an application seeking appointment of an Arbitrator in as much as a partnership deed apparently had provided for arbitral settlement of disputes of the Firms.

The said application having been disposed off by the impugned order herein, by the trial

Court on 27.01.2018 at Annexure-K; the plaintiffs are before this Court as petitioners laying a challenge thereto.

2. After service of notice, contesting respondents have entered appearance through their counsel makes submission opposing the writ petition.

: 6 :

3. Learned counsel for the petitioner vehemently contends that though in the body of the impugned order, the learned trial Judge has given reasons as to why the application for appointment of Arbitrator cannot be favoured still in the operative portion contra is reflected and therefore, the impugned order is liable to be set aside.

4. Per contra, the learned counsel for the contesting respondents submits that it is true that going by the reasoning part of the impugned order, his claim for appointment of

Arbitrator could not have been and is not favoured; what the trial Court has done is that the accounts of the Partnership Firm in question need to be submitted by the

Chartered Accountants and therefore regardless of the fault in the text of the

: 7 : operative portion of the impugned order the main matter itself can be disposed off by reading down the impugned order to match with it’s reasoning part.

5. I have heard the learned counsel for the petitioner and the learned counsel for the contesting respondents. I have perused the petition papers and focused the impugned order.

6. The first contention of the learned counsel for the petitioner that the text of the operative portion of the impugned order gives an impression that the Chartered Accountants

Firm is appointed as an Arbitrator, but the reasoning part militates against it’s reasoning has force. The text of the impugned order reads as under:

: 8 :

“ORDER IA No.LIV filed under Section 151 of CPC is hereby allowed.

The matter relates to Ex.D.64 to Ex.D.75 is hereby referred to Arbitrator i.e., M/s.C.N.Hunnargikar & Company, Chartered Accountants, Belagavi.

No order as to costs.”

7. The Trial Court in the course of its reasoning has made its mind to deny the relief to the respondents so far as their claim for appointment of an Arbitrator is concerned. It is a cardinal principle of adjudication that the operative portion of an order should match with and spring from the reasoning part thereof. This cardinal principle, going by the text of the operative portion, appears to have been violated.

: 9 :

8. However, the learned counsel for the contesting respondents, in all fairness, submits that the impugned order be read as one for the rendition of the accounts with the involvement of the Chartered Accountants and if that is done, the grievance of the petitioner withers away in thin air.

9. In response, the learned counsel for the petitioner submits that the Court below has appointed a particular Firm of Chartered

Accountants for accomplishing the task of furnishing accounts without having any say from the side of the petitioner and therefore, the petitioner should be permitted to nominate the Chartered Accountants of it’s choice, who in cooperation with each other would accomplish the task. This is a fair stand, which again is innocuous.

: 10 :

10. In the above circumstances, this writ petition succeeds in part; the operative portion of the impugned order dated 27.01.2018, a copy whereof is at Annexure-K shall be construed as the one for appointment of

Chartered Accountants, one from the side of the petitioner and the other from the side of the contesting respondents herein for the purpose of accomplishment of the task of accounting of the Firms in question. The petitioner shall furnish the name of his

Chartered Accountant to the Court below and so also the contesting respondents shall indicate their choice of Chartered Accountants; the Court below shall make the order appointing them for accomplishing the task.

11. The fees payable to the Chartered

Accountants shall be fixed by the Court below.

: 11 :

12. Since the suit is of the year 2000, the learned Judge of the trial Court is requested to dispose off the same within a period of one year, and that while computing this period, the adjournment taken from the side of the plaintiffs shall be excluded.

Since the main matter is disposed off, the question of consideration of I.A.Nos.1 & 2 of

2019 pales into insignificance.

Sd/- JUDGE

Vnp*