Dismissed

Smt Sharadamma v. Sri Hanumanthe Gowda

Karnataka HC11 Nov 2021WP/29236/2015

Case brief

AI extract

What is this about?

Writ petition challenging a Trial Court order allowing an application under CPC Order I Rule 10(2) to delete certain parties from a partition suit. The High Court held the deletion valid as parties had no title but directed plaintiffs to pay compensation to defendants.

What did the court decide?

Writ petition dismissed; plaintiffs directed to pay cost of Rs. 25,000 to respondents.

Smt Sharadamma Vs Sri Hanumanthe Gowda — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF NOVEMBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE R. NATARAJ

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WRIT PETITION NO.29236 OF 2015 (GM - CPC)

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BETWEEN:

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SMT. SHARADAMMA, D/O HANUMANTHARAYAPPA, MAJOR, RESIDING AT SEETHAKEMPANAHALLI, KAKOD POST, HESARAGHATTA HOBLI, BANGALORE NORTH TALUK.

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SMT.RATHNAMMA, D/O HANUMANTHARAYAPPA, MAJOR, RESIDING AT ARUVANAHALLI, KOIRA POST, KUNDANA HOBLI, DEVANAHALLI TALUK, BANGALORE DISTRICT - 562 110.

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SMT.SOWBHAGYAMMA, D/O HANUMANTHARAYAPPA, MAJOR, RESIDING AT MADURA HOSAHALLI, VEERAPURA POST, DODDABALLAPURA TALUK, BANGALORE DISTRICT - 561 203.

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SMT.SUSHEELAMMA, D/O HANUMANTHARAYAPPA, MAJOR, RESIDING AT KONAGHATTA, KONAGHATTA POST, RAJAGHATTA HOBLI, DODDABALLAPURA TALUK,

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BANGALORE DISTRICT - 561 203.

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SRI. ASHWATHA GOWDA, S/O HANUMANTHARAYAPPA, MAJOR, RESIDING AT RAMANATHAPURA, KOIRA POST, DEVANAHALLI TALUK, BANGALORE DISTRICT - 562 110. 6. SRI. MUDDU NAGARAJA, S/O HANUMANTHARAYAPPA, MAJOR, RESIDING AT RAMANATHAPURA, KOIRA POST, DEVENHALLI TALUK, BANGALORE DISTRICT - 562 110. 7. SMT. PREMA LEELA (AMMAI), S/O HANUMANTHARAYAPPA, MAJOR, RESIDING AT KADASEEGANAHALLI POST, NANDI HOBLI, CHIKKABALLAPUR TALUK, KOLAR DISTRICT - 562 103. 8. SMT. ASHWATHAMMA, D/O HANUMANATHARAYAPPA, MAJOR, RESIDING AT KADASEEGANAHALLI, KONDANAHALLI POST, NANDI HOBLI, CHIKKABALLAPUR TALUK, KOLAR DISTRICT - 562 103. 9. SMT. MUDDU NAGAMMA, D/O HANUMANTHARAYAPPA, MAJOR, RESIDING AT NAGAMANAGALA, NAGAMANGALA POST, JANGAMAKOTE HOBLI, SIDLAGHATTA TALUK, KOLAR DISTRICT.

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10.	SMT. SUVARNAMMA, D/O HANUMANTHARAYAPPA, MAJOR, RESIDING AT KOPPALA KUNDANA, DEVANAHALLI TALUK, BANGALORE DISTRICT. ... PETITIONERS
(BY S	RI. SHANKARANARAYANA BHAT N., ADVOCATE)
AND:
1.	SRI. HANUMANTHE GOWDA, S/O CHIKKANARYANAPPA, MAJOR, RESIDING AT RAMANATHAPURAM, KUNDANA HOBLI, KOIRA POST, DEVANAHALLI TALUK, BANGALORE DISTRICT - 562 110.
2.	SRI. NARAYAN GOWDA, S/O CHIKKANARAYANAPPA, SINCE DECEASED BY HIS LRS
2(A)	SMT. NANJAMMA, W/O LATE NARAYANA GOWDA, AGED ABOUT 48 YEARS,
2(B)	SRI. KIRAN, S/O LATE NARAYANA GOWDA, AGED ABOUT 25 YEARS,
2(C)	SRI. SHARAN, S/O LATE NARAYANA GOWDA, AGED ABOUT 21 YEARS,
2(D)	SRI. SHEKHAR, S/O LATE NARAYANA GOWDA, AGED ABOUT 32 YEARS,
	(A) TO (D) ARE RESIDENTS OF RAMANATHAPURA VILLAGE, KUNDANA HOBLI, KOIRA POST,

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DEVANAHALLI TALUK, BANGALORE DISTRICT - 562 110.

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2(E). SMT. RASHMI, D/O LATE NARAYANA GOWDA, W/O SRI. NATARAJ, AGED ABOUT 28 YEARS, RESIDING AT KONDENAHALLI POST, KADASIGENAHALLI VILLAGE, NANDI HOBLI, CHIKKABALLAPURA TALUK & DISTRICT.

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2(F). SMT. ASHA, D/O LATE NARAYANA GOWDA, W/O SRI PILLE GOWDA, AGED ABOUT 26 YEARS, RESIDING AT YELIYUR VILLAGE, YELIYUR POST, CHANNARAYAPATNA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT.

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SMT. NANJAMMA, D/O CHIKKANARAYANAPPA, MAJOR, RESIDING AT RAMANATHAPURAM, KUNDANA HOBLI, KOIRA POST, DEVANAHALLI TALUK, BANGALORE DISTRICT - 562 110.

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SMT. PREM LEELA, D/O CHIKKANARAYANAPPA, MAJOR, R/AT DAKSEEGANAHALLI, KONDENAHALLI POST, NANDI HOBLI, CHIKKABALLAPURA TALUK, KOLAR DISTRICT.

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SMT. H K SHANTHAMMA, W/O LATE KALE GOWDA, AGED ABOUT 52 YEARS,

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6.	SMT. R K PUSHPA,
	D/O LATE KALE GOWDA, AGED ABOUT 30 YEARS,
7.	SRI. R.K.M. GOWDA, S/O LATE KALE GOWDA, AGED ABOUT 24 YEARS,
8.	KUM. R K NETRA, D/O LATE KALE GOWDA, AGED ABOUT 22 YEARS,
9.	SRI. ASHAWATH GOWDA, S/O LATE KALE GOWDA, AGED ABOUT 20 YEARS,
	RESPONDENTS 5 TO 9 ARE RESIDENTS OF RAMANATHAPURA, KUNDANA HOBLI, KOIRA POST, DEVENAHALLI TALUK, BANGALORE DISTRICT - 562 110.
10.	SMT. KEMPAMMA, W/O. NARAYANAPPA,
11.	SRI. ASHWATHAPPA, S/O. NARAYANAPPA,
12.	SRI. KRISHNAPPA, S/O NARAYANAPPA,
13.	SRI. SUBBE GOWDA, S/O. NARAYANAPPA,
14.	SRI. VIJAYA KUMAR, S/O. NARAYANAPPA,
15.	SRI. KRISHNAPPA,
	SL.NOS.10 TO 15 ARE MAJORS,
	R/AT RAMANATHAPURA VILLAGE, KUNDANA HOBLI,

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KOIRA POST, DEVANAHALLI TALUK, BANGALORE DISTRICT - 562 110.

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... RESPONDENTS

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(BY SRI. MURALI N., ADVOCATE FOR R1, R2(A-F), R3, R5 - R7 AND R9;

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VIDE ORDER DATED 10.11.2016 R11 - R14 ARE TREATED AS LRS OF DECEASED R10; R11 TO R14 - SERVED; VIDE ORDER DATED 27.01.2020; WP IS DISMISSED IN RESPECT OF R15 FOR NONPROSECUTION;

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THE PETITION IS DISMISSED IN RESPECT OF DECEASED R4 AS ABATED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE & JMFC AT DEVANAHALLI IN O.S.NO.1300/2006 ON I.A.NO.VII DATED 24.06.2015, MARKED AS ANNEXURE-G IN THIS WRIT PETITION AND ETC.,

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP , THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This writ petition is filed by the defendant Nos.2 to 12 in O.S.No.1300/2006 (old No.290/1998) pending trial before the Senior Civil Judge & JMFC, Devanahalli (henceforth referred to as 'Trial Court) challenging the order dated 24.06.2015, by which an

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application filed to delete the defendant Nos.2 to 12 from the cause title was allowed.

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The parties shall henceforth be referred as they were arrayed before the Trial Court in O.S.No.1300/2006.

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A suit in O.S.No.24/1966 was filed by Kalegowda for declaration and partition against his brother Hanumantharayappa and others in respect of various items of properties. The said suit was dismissed and thereafter, an appeal in R.A.No.57/1973 was filed. The said appeal was allowed in terms of the judgment and decree dated 22.07.1978, and the suit was decreed in respect of item Nos.1 to 27 of the plaint 'A' schedule property. It was declared that Hanumantharayappa had no right, title or interest in the suit properties. The judgment and decree passed in R.A.No.57/1973 was challenged before this Court in RSA.No.214/1979 which was dismissed on 3.3.1989. Thereafter, F.D.P.No.24/1989 was filed, which attained finality after the properties were

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apportioned between the parties. The defendant Nos.2 to 12 in O.S.No.1300/2006 are the children of the Hanumantharayappa. However, later the defendant Nos.2 to 6 in O.S.No.24/1966 filed another suit in O.S.No.1300/2006 (old O.S.No.290/1998) for partition and separate possession of the very same properties that were the subject matter in O.S.No.24/1966. In the said suit, the defendants Nos.2 to 12 were again arrayed as parties, though they did not have any subsisting title, right and interest in the suit properties.

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The case was contested by the defendant Nos.2 to 12 and after an ordeal of 15 years, the plaintiffs filed an application under Order I Rule 10(2) of the Code of Civil Procedure (henceforth referred to as ‘of CPC’) to delete the defendant Nos.2 to 12 from the array of parties.

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The Trial Court considering the fact that the issue between the plaintiffs and the defendant Nos.2 to 12

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was substantially decided in O.S.No.24/1966, and having regard to the fact that the properties in O.S.No.1300/2006 were the very same properties in O.S.No.24/1966, held that the defendant Nos.2 to 12 were not necessary parties and therefore, allowed the application filed by the plaintiff on payment of cost of Rs.10,000/-.

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Being aggrieved by the aforesaid order, the present writ petition is filed.

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The learned counsel for the defendant Nos.2 to 12 submitted that the Trial Court had framed issues in the suit and issue Nos.4 and 5 were cast upon the defendant Nos.2 to 12. He further contended that the plaintiffs have harassed the defendant Nos.2 to 12 for 15 long years though they knew that defendant Nos.2 to 12 had no subsisting right, title or interest in the suit property. He however, contended that the defendant Nos.2 to 12 have some share in the property that fell to the share of the

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plaintiff No.1 in the present suit and therefore, the Trial Court could not have allowed the application under Order I Rule 10(2) of CPC.

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Per contra, the learned counsel for the plaintiffs submitted that the defendant Nos.2 to 12 were impleaded in the suit under a mistaken notion and they were not necessary parties to the suit. It is stated that the plaintiffs were unaware of the effect of the decree passed in R.A.No.57/1973 and therefore, after realizing the fact that the defendant Nos.2 to 12 had no subsisting right, title or interest in the suit item Nos.1 to 27, filed an application to delete the defendant Nos.2 to 12.

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I have considered the submissions made by the learned counsel for the parties.

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It is not in dispute that the suit items in O.S.No.1300/2006 were also the subject matter of O.S.No.24/1966, where the Court held that the

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father of the defendant Nos.2 to 12 had no right, title or interest in the properties therein. Therefore, the question of arraying the defendant Nos.2 to 12 in the present suit did not arise, as their presence in the suit was unnecessary. As rightly contended by the learned counsel for the defendant Nos.2 to 12 the plaintiffs have exposed them to an unwanted litigation spread over 15 long years.

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Having regard to the fact that the Trial Court has the jurisdiction to delete the parties who are not necessary, the impugned order deleting the defendant Nos.2 to 12 cannot be found fault with. However, while doing so, the Trial Court must have compensated the defendant Nos.2 to 12 adequately.

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In that view of the matter, the writ petition is dismissed. However, the plaintiffs shall pay a cost of Rs.25,000/- payable to the defendant Nos.2 to 12 before the Trial Court on the next date of hearing.

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Except as aforesaid the impugned order dated

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24.06.2015 passed by the Trial Court is up held.

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Sd/JUDGE

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GJM

Smt Sharadamma v. Sri Hanumanthe Gowda

Case brief

What is this about?

What did the court decide?

Smt Sharadamma v. Sri Hanumanthe Gowda

Case brief

What is this about?

What did the court decide?

What the court decided

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