Allowed

D v. Jyothi v the Chief Officer

Karnataka HC20 Apr 2022WP/7319/2019

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the dismissal of an application to implead a necessary party under CPC Order 1 Rule 10(2). Finding the trial court erred by not considering the affidavit, the Court set aside the impugned order and directed a de novo reconsideration within three months.

What did the court decide?

The impugned order dismissing the application is set aside. The trial court is directed to reconsider the application under Order 1 Rule 10(2) CPC afresh within three months.

D v Jyothi Vs the Chief Officer — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF APRIL, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE E.S.INDIRESH

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W.P. NO.7319 OF 2019 (GM-CPC)

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BETWEEN

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D V JYOTHI D /O VENKANAGOUDA AGED ABOUT 37 YEARS OCC: ADVOCATE

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D V MAHESWARI D/O D VENKANAGOUDA AGED ABOUT 35 YEARS OCC:DOCTOR R/O SRI SHANKRAMUTT HOSPETE ROAD HARAPANAHALLI -583 131. REPRESENTED BY THEIR GENERAL POWER OF ATTORNEY HOLDER AND FATHER D VENKANAGOUDA S/O RUDRAGOUDA

...PETITIONERS

(BY SRI , ADVOCATE)

AND

THE CHIEF OFFICER TOWN MUNICIPAL COUNCIL HARAPANAHALLI DAVANAGERE DISTRICT-583 131.

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H ALTAF

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S/O DAADU SAAB AGED 44 YEARS WARD NO.10, ANJANEYA LAYOUT HARAPANAHALLI-583 131. DAVANAGERE DISRICT.

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D IMRAN PASHA S/O LATE D KHALANDAR SAB 5^TH WARD NEAR JAI HUNASIMARA HARAPANAHALLI-583 131. BEKKART DISTRICT.

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….RESPONDENTS

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(BY SRI M A SUBRAMANI, ADVOCATE FOR R1; SRI GURURAJ JOSHI, ADVOCATE FOR R2; NOTICE TO R3 IS HELD SUFFICIENT)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 11.12.2018 AT ANNEXURE-A PASSED BY THE LEARNED CIVIL JUDGE JMFC COURT, HARAPANAHALLI ON IA NO.6 IN ORIGINAL SUIT NO. NO.24 OF 2010 FOR THE REASONS STATED IN THE SAID APPLICATION AND ETC.,

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

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ORDER

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This writ petition is filed by the plaintiffs in Original Suit No.24 of 2010 on the file of the Civil Judge and JMFC challenging the order dated 11.12.2018, dismissing the application-IA No.6.

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Brief facts are that, the plaintiffs have filed suit seeking relief of declaration with other consequential reliefs. The

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suit is being contested by the defendants by filing the written statement. In the meanwhile, the plaintiffs have filed application under Order 1 Rule 10(2) of Code of Civil Procedure (AnnexureE) and sought to implead one Imran sab, son of D.Kalandar Sab as defendant No.3 and the said application was resisted by the proposed defendants. The Trial Court, after considering the material on record, by order dated 11.12.2018, dismissed the application and feeling aggrieved by the same, the plaintiffs have presented this Writ Petition.

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I have heard Sri. D. Venkanagowda-Party-in-person,

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General Power of Attorney holder for Smt. D.V. Jyothi, the petitioner and Sri M.A.Subramani, learned counsel appearing for the respondent No.1.

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Sri. D.Venkanagowda, Party in person, argued that the relief sought for by the plaintiffs is with regard to declaratory in nature and the allegations have been made against the father of the proposed defendant that he has encroached the portion of the suit schedule property and therefore, the trial Court ought to

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have accepted the application filed under Order 1 Rule 10(2) of Code of Civil Procedure.

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Per contra, Sri M.A.Subramani, learned counsel appearing for the respondents sought to justify the impugned order passed by the trial Court.

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Having heard the learned counsel appearing for the parties, perusal of writ papers would indicate that it is not in dispute that the plaintiffs have filed suit seeking the relief of declaration with consequential relief of mandatory injunction. It is forthcoming from the impleading application that the grievance of the plaintiffs is against the father of the impleading applicant-D.Kalandar Sab with regard to putting up of construction in the suit schedule property. Admittedly, the said D.Kalandar Sab died leaving behind his son, Imran Sab, who is the impleading applicant in the application. I have carefully considered the averments made in the affidavit accompanying application as per Annexure-E, particularly, referring to paragraphs 5 and 7 and in that view of the matter, the trial Court, without considering the averments made in the affidavit

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accompanying application, dismissed the application on the ground that the application has been filed at the belated stage. Therefore, I am of the view that the said application filed by the plaintiffs requires re-consideration by the trial Court. Accordingly, the writ petition is allowed. Order dated 11.12.2018 passed by the trial Court on IA No.6 is set aside. The trial Court is directed to re-consider the application filed by the plaintiff under Order 1 Rule 10(2) of Code of Civil Procedure as per Annexure-E afresh and pass appropriate orders within three months from the date of receipt of certified copy of this order.

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Sd/JUDGE

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D v. Jyothi v the Chief Officer

Case brief

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D v. Jyothi v the Chief Officer

Case brief

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