Allowed

Kumar Rahul S/O Krushnagouda Pail v. Ranganaagouda S/O Lachappagouda Patil

Karnataka HC6 Oct 2023WP/100026/2022

Case brief

AI extract

What is this about?

High Court of Karnataka allowed writ petition quashing order permitting third respondent to be impleaded in suit for partition and separate possession involving transposed plaintiff representing minor petitioners, holding order unsustainable due to lack of necessary party status.

What did the court decide?

Impugned order dated 15.11.2021 allowing impleading application of respondent No.3 set aside.

Kumar Rahul S/O Krushnagouda Pail Vs Ranganaagouda S/O… — Partition | Karnataka HC (2023)

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NC: 2023:KHC-D:11854 WP No. 100026 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 6^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO.100026 OF 2022 (GM-CPC)

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BETWEEN:

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KUMAR RAHUL S/O. KRUSHNAGOUDA PATIL, AGE: 07 YEARS, OCC: STUDENT, SINCE MINOR REPRESENTED BY M/G PETITIONER NO.3,

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AS PER ORDER PASSED IN O.S NO.229/2019 ON IA NO.II.

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KUMARI SPANDANA D/O. KRUSHNAGOUDA PATIL, AGE: 04 YEARS, OCC: STUDENT, SINCE MINOR REPRESENTED BY M/G PETITIONER NO.3

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AS PER ORDER PASSED IN O.S NO.229/2019 ON IA NO.II.

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MOHANKUMAR B SHELAR

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Digitally signed by MOHANKUMAR B SHELAR Date: 2023.10.12 11:31:45 +0530

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SMT. LAXMIBAI W/O. LACHAPPAGOUDA PATIL, AGE: 67 YEARS, OCC: AGRICULTURE, R/O: CHIKKUR, TQ: MUDHOL, DIST: BAGALKOT – 587 101. (SENIOR CITIZEN BENEFIT NOT CLAIMED)

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(BY SRI PAVAN B. DODDATTI, ADVOCATE)

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AND:

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…PETITIONERS

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RANGANAGOUDA S/O. LACHAPPAGOUDA PATIL, AGE: 40 YEARS, OCC: AGRICULTURE, R/O: CHIKKUR, TQ: MUDHOL, DIST: BAGALKOT – 587101.

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KRUSHNAGOUDA S/O. LACHAPPAGOUDA PATIL, AGE: 40 YEARS, OCC: AGRICULTURE, R/O: CHIKKUR, TQ: MUDHOL, DIST: BAGALKOT – 587101.

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2 - NC: 2023:KHC-D:11854 WP No. 100026 of 2022

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SRI NEELAPPA S/O. BASANAGOUDA NALATWAD, AGE: 58 YEARS, OCC: AGRICULTURE, R/O: CHITTARGI, TQ: HUNAGUND, DIST: BAGALKOT – 587101.

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…RESPONDENTS (NOTICE TO R1 & R2 IS DISPENSED WITH; NOTICE TO R3 IS SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT IN THE NATURE OF CERTIORARI BY QUASHING IMPUGNED ORDER PASSED IN O.S.NO.229/2019 BY THE COURT OF PRL. SENIOR CIVIL JUDGE AND JMFC, AT MUDHOL, DATED 15.11.2021 VIDE ANNEXURE-G AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The captioned writ petition is filed by the plaintiffs assailing the order passed by the learned Judge on I.A.No.6 filed under Order 1 Rule 10(2) of CPC by respondent No.3. The learned Judge has allowed the impleading application.

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Before I advert to the facts of the case, I deem it

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fit to cull out family tree, which reads as under;

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3 - NC: 2023:KHC-D:11854 WP No. 100026 of 2022

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Laxmibai (wife) (D.1)

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The present plaintiff Nos.1 and 2 along with their

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mother Smt.Rekha filed a suit for partition and separate possession in O.S.No.229/2019. Pending suit, plaintiff No.1 – Smt.Rekha died. Since the present petitioners are minors, defendant No.1 – Laxmibai was permitted to get herself transposed as plaintiff No.4. She was further permitted to prosecute the suit as a next friend of petitioner Nos.1 and 2. The present respondent No.3 – Neelappa, who is the maternal grandfather of petitioner Nos.1 and 2, has strangely filed an impleading application. The learned Judge, without examining as to whether he is a necessary party and his presence is necessary for effective adjudication of the controversy between the

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4 - NC: 2023:KHC-D:11854 WP No. 100026 of 2022

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parties, has allowed the application by a cryptic order. If respondent No.3 is the father of plaintiff No.1 – Smt.Rekha, who is no more and the maternal grand father of petitioner Nos.1 and 2, he has no subsisting right in the properties left behind by Lachappagouda. If he has no semblance of right, he is not entitled to come on record for whatever reasons.

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It appears that respondent No.3 has come up with this application in I.A.No.6. When his application seeking leave of the Court to appoint him as a guardian of petitioner Nos.1 and 2 is pending consideration. The learned Judge has strangely entertained an application filed in I.A.No.6 and the said impleading application is allowed and respondent No.3 is permitted to come on record as a party in a partition suit. R3 is not the joint family member of plaintiff and defendants. He has no right in the properties. His presence is not at all necessary for effective adjudication of dispute between family members. If defendant No.1 is transposed as plaintiff No.4 and is

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5 - NC: 2023:KHC-D:11854 WP No. 100026 of 2022

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permitted to prosecute suit on behalf of minors as next

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friend, impugned order is not sustainable. The order under challenge suffers from serious infirmities and therefore, it is not sustainable and therefore, the same is liable to be set-aside.

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For the foregoing reasons, I pass the following;

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ORDER

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(i) The writ petition is allowed.

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(ii) The impugned order dated 15.11.2021 vide Annexure – G is hereby set-aside.

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Sd/JUDGE

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NBM

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List No.: 1 Sl No.: 3

Kumar Rahul S/O Krushnagouda Pail v. Ranganaagouda S/O Lachappagouda Patil

Case brief

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Kumar Rahul S/O Krushnagouda Pail v. Ranganaagouda S/O Lachappagouda Patil

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