Allowed

Basavanni Adiveppa Patil v. Balagouda Goudappa Patil

Karnataka HC6 Mar 2019WP/78774/2013

Case brief

AI extract

What is this about?

The High Court held that the trial court erred in rejecting applications under CPC to implead a purchaser defendant and amend pleadings. It allowed the writ petitions, set aside impugned orders, and directed the trial court to try the maintainability of the suit as a preliminary issue.

What did the court decide?

Impugned orders set aside; applications under CPC allowed; trial Court directed to frame maintainability issue as preliminary.

Basavanni Adiveppa Patil Vs Balagouda… — Civil Procedure and Limitation | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 6^TH DAY OF MARCH, 2019

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BEFORE

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THE HON’BLE MR.JUSTICE G.NARENDAR

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WRIT PETITION No.78774/2013 c/w WRIT PETITION No.82866/2013 (GM-CPC)

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IN W.P.No.78774/2013

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BETWEEN:

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SHRI BASAVANNI ADIVEPPA PATIL, AGE: 67 YEARS, OCC: AGRICULTURE R/O. KARAGUPPI,

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TQ: HUKKERI, DIST: BELGAUM. ...PETITIONER

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(BY SRI SUNANDA P.PATIL, ADVOCATE)

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A N D :

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SHRI BALAGOUDA GOUDAPPA PATIL, SINCE DECEASED BY HIS LRs

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1A. MALLAPPA A/F MUDAKAPPA PATIL, AGE: 69 YEARS, OCC: AGRICULTURE R/O. KARAGUPPI-591 122, TQ: HUKKERI, DIST: BELGAUM.

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1B. BABU ADIVEPPA PATIL, AGE:65 YEARS, OCC:AGRICULTURE, R/O KARAGUPPI-591 122,

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TALUKA:HUKERI, DISTRICT:BELGAUM.

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SMT.HEMALATA W/O. BHIAMAPPA JAMBAGI, AGE: 41 YEARS, OCC: AGRICULTURE, R/O. SADASHIV NAGAR, BELGAUM, PIN CODE-590 001, DISTRICT BELGAUM. ..RESPONDENTS

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(BY SMT.SHAILA BELLIKATTI, ADV. FOR R1 (A),

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R1(B) SERVED, SRI M.G.NAGANURI, ADV. FOR C/R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED:27/04/2013 ON I.A.NO.2 IN OS.NO.189/2011, PRODUCED AT ANNEXURE-E, PASSED BY CIVIL JUDGE AND JMFC., HUKKERI AND ETC.,

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IN W.P.No.82866/2013

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BETWEEN

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BASAVANNI ADIVEPPA PATIL, AGE: 67 YEARS, OCC: AGRICULTURE R/O. KARAGUPPI, TQ: HUKERI DIST: BELGAUM. ... PETITIONER

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(BY SMT.SUNAND P. PATIL, ADV)

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AND

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SHRI BALAGOUDA GOUDAPPA PATIL, SINCE DECEASED BY HIS LRs

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1A. MALLAPPA A/F MUDAKAPPA PATIL, AGE:69 YEARS, OCC: AGRICULTURE, R/O. KARAGUPPI, TQ: HUKKERI DIST: BELGAUM.

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1B. BABU ADIVEPPA PATIL, AGE:65 YEARS, OCC:AGRICULTURE, R/O KARAGUPPI-591 122, TALUK:HUKKERI, DIST:BELGAUM.

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..RESPONDENTS (BY SMT. SHAILA BELLIKATTI, ADV. FOR R1(A), R1 (B) SERVED SRI M.G.NAGANURI, ADV. FOR C/R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE ORDER DATED 24.08.2013 ON I.A.NO.III IN OS 189/2011 PRODUCED AT ANNEXURE "E" PASSED BY CIVIL JUDGE & JMFC, HUKERI AND ETC.,

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THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Heard the learned counsel for the petitioner and the learned counsel for the respondents.

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Both the writ petitions are preferred by the plaintiff who is the applicant in IA-II preferred under Order I Rule 10 (2) of the Code of Civil Procedure and IA-III is filed under Order VI Rule 17 of the Code of Civil Procedure.

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The petitioner is the plaintiff and the 1^st respondent is the defendant and the 2^nd respondent is the proposed defendant on account of her being the purchaser during the pendency of the original suit. The defendant alone is arraigned as a party in the second writ petition calling in question the order passed on IA-III seeking for amendment of pleadings. The petitioner/plaintiff had preferred the above suit O.S.No.189/2011 praying for the following reliefs:

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“a) It be declared that the plaintiff has got preferential right to acquire the suit property and consequential direction directing the defendant to transfer the suit property to the plaintiff in the event the defendant intends to transfer the same,

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b) Costs of the suit be kindly awarded,

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c) Any other relief/s which the Hon’ble court deems fit and proper be kindly granted,

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d) Permission to amend the plaint as and when necessary be kindly reserved to the plaintiff.”

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That the suit was instituted on 04.11.2011 and the defendant entered appearance on 09.12.2011 and thereafter, after putting in appearance in the suit, proceeded to execute the sale deed on 27.12.2011 in favour of the 2^nd respondent in the first writ petition. In view of the same, the petitioner/plaintiff preferred an application under Order I Rule 10 (2) on 24.09.2012. The same came to be numbered as IA-II and sought for arraigning the purchaser i.e., the 2^nd respondent as a party defendant to the suit. The said application IA-II came to be rejected by the Court of Civil Judge and JMFC, Hukkeri, by order dated 27.04.2013.

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The application under Order VI Rule 17 was preferred on 11.07.2013 and the application IA-III came to be rejected by order dated 24.08.2013. The trial Court after hearing the parties was pleased to reject the application IA-II on the premise that though the plaintiff was put on notice regarding the sale by filing the written statement on 14.03.2012 and that no action was taken till 24.09.2012 and further the trial Court was pleased to hold that in the absence of appropriate pleadings, the question of bringing on record the subsequent purchaser was of no consequence and further taking note of the fact that issues had already been framed and matter being listed for evidence, the trial Court deemed it fit to reject the application. In the opinion of this Court, when an application is filed under Order I Rule 10 (2) of the CPC, under the ambit and scope of the provisions, it was incumbent upon the Court to determine as to whether the proposed defendant was a necessary and proper party. From the reasonings set out, this Court is unable to discern any such reasoning

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which could be termed as a reason by the trial Court to hold that the proposed defendant is neither a necessary nor a proper party. On the contrary, the trial Court having observed that the sale is during the pendency of the suit, it ought to have opined otherwise. Hence, in the opinion of this Court, the reasoning warrants interference.

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Similarly, the Court while rejecting IA-III has sought to reject the same on the ground that the application for impleadment preferred earlier had been rejected and hence, allowing the application for amendment would not serve any purpose.

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Learned counsel for the 2^nd respondent would contend that the very suit itself is not maintainable. If that be so, the said issue could be tried as a preliminary issue, after affording an opportunity to the parties. It is seen that the suit instituted in the year 2011 has been lying in cold storage for the last eight years.

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The learned counsels would submit that the writ petitions may be disposed of by allowing the applications and further by directing the trial Court to frame an issue with regard to the maintainability of the suit and further the trial Court be directed to treat the said issue as a preliminary issue and consider and pass orders on the preliminary issue.

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The submissions of the learned counsels is placed on record. The impugned orders are set aside. The applications are allowed. The trial Court shall frame an issue with regard to the maintainability of the suit and allow the parties including the proposed defendant to have a say and thereafter render a finding on the preliminary issue.

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With the above observations, the writ petitions are allowed. Accordingly, the impugned order at Annexure-E is set aside. Consequently, the application IA-II is allowed. Accordingly, order impugned at IA-III vide Annexure-E dated 24.08.2013 is set aside. The

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plaintiff shall amend the plaint and file an amended plaint within two weeks from now. The parties shall appear before the trial Court on 29.03.2019 . The proposed 2^nd respondent is permitted to file written statement. Thereafter, the trial Court shall frame a preliminary issue with regard to the maintainability of the suit and parties shall be afforded an opportunity to demonstrate their respective cases and the Court shall consider and render a finding on the preliminary issue regarding maintainability.

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The writ petition is ordered accordingly.

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(SD/-) JUDGE

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jm/-

Basavanni Adiveppa Patil v. Balagouda Goudappa Patil

Case brief

What is this about?

What did the court decide?

Basavanni Adiveppa Patil v. Balagouda Goudappa Patil

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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