Partly allowed

Smt Nagaveni v. Smt Lakshmamma

Karnataka HC14 Dec 2023WP/5944/2023

Case brief

AI extract

What is this about?

The High Court set aside the order rejecting the application to implead an additional defendant under Order I Rule 10(2) CPC. The court directed the trial court to reconsider the application afresh after the petitioner files missing documents, including a genealogical tree.

What did the court decide?

Impugned order dated 10.02.2023 set aside; petitioner directed to file relevant documents afresh for the trial court to consider the application.

Smt Nagaveni Vs Smt Lakshmamma — Civil Procedure and Limitation | Karnataka HC (2023)

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1 - NC: 2023:KHC:45663 WP No. 5944 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 5944 OF 2023 (GM-CPC)

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BETWEEN:

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SMT NAGAVENI, W/O LATE NAGESH, AGED ABOUT 43 YEARS, AGRICULTURIST, R/AT DIMBA VILLAGE, KASABA HOBLI, KOLAR TALUK, KOLAR DISTRICT - 563101.

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…PETITIONER

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(BY SRI RAMAIAH GOWDA L M, ADVOCATE)

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AND:

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Digitally signed by A K CHANDRIKA Location: HIGH COURT OF KARNATAKA

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SMT LAKSHMAMMA, W/O LT C VENKATESHAPPA, AGED ABOUT 64 YEARS, R/AT DIMBA VILLAGE, SHILLANGERE POST, KASABA HOBLI KOLAR TALUK, KOLAR DISTRICT – 563101.

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SRI MANJUNATH D N, S/O NAGARAJAPPA D C, AGED ABOUT 29 YEARS, R/AT DIMBA VILLAGE, SHILLANGERE POST, KASABA HOBLI, KOLAR TALUK, KOLAR DISTRICT – 563101.

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NAGARAJAPPA D C, S/O LATE CHIKKA VEERAPPA @ CHIKKA VEERANNA, AGED ABOUT 68 YEARS,

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NC: 2023:KHC:45663 WP No. 5944 of 2023

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R/AT DIMBA VILLAGE, SHILLANGERE POST, KASABA HOBLI, KOLAR TALUK, KOLAR DISTRICT – 563101.

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…RESPONDENTS

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(BY SRI VISHWANATHA K, ADVOCATE FOR R1, R2 AND R3 – SERVICE OF NOTICE IS HELD SUFFICIENT)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE ORDER DTD 10.02.2023 PASSED BY THE COURT OF THE III ADDL. DIST. AND SESSIONS JUDGE AT KOLAR (SITTING AT KGF) ON IA. NO.9 IN SUIT OS. NO.2/2022 PRODUCED AS ANNX-L.

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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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The petitioner/impleading applicant in

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O.S.No.02/2022 on the file of III Additional District Judge

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at Kolar is before this Court, aggrieved by order dated 10.02.2023 rejecting I.A.No.9 filed under Order I Rule

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10(2) of CPC to come on record as additional defendant.

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Heard learned counsel Sri.Ramaiah Gowda L.M., for

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petitioner and learned counsel Sri.Vishwanath K., learned counsel for respondent No.1. Perused the writ petition papers.

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3 - NC: 2023:KHC:45663 WP No. 5944 of 2023

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Learned counsel for the petitioner would submit that respondent No.1/plaintiff filed P & SC No.2/2020 praying for issuance of probate in respect of the registered Will dated 29.10.2001. As objections were filed to contest, it was converted into original suit. When the suit was at the stage of evidence, the petitioner is said to have filed I.A.No.9 under Order I Rule 10(2) of CPC to come on record as additional defendant. It is submitted that the petitioner is wife of one Nagesh son of Doddaveerappa and she is a member of joint family. In that regard, learned counsel would invite attention of this Court to plaint in O.S.No.212/2021 filed by respondent No.3 herein, wherein the petitioner is also arrayed as defendant No.2. The prayer in the said suit is for partition and separate possession of suit schedule property which is the subject matter of the present O.S.No.02/2022. Learned counsel would submit that the trial Court committed an error in rejecting impleading application only on the ground that no material is place on record along with the application, without looking into any other material placed on record.

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4 - NC: 2023:KHC:45663 WP No. 5944 of 2023

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Learned counsel would submit that respondents admitted relationship in their evidence and learned counsel would

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submit that the trial Court failed to look into all the materials while considering the application. Learned counsel, to a Court query as to whether copy of plaint in O.S.No.212/2021, written statement filed in the said suit

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were made available to the trial Court along with application, learned counsel for the petitioner would say “NO”.

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Per contra, learned counsel for respondent No.1/plaintiff would support the order passed by the trial Court and prays for dismissal of the writ petition.

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The petitioner claims to be wife of Nagesh son of Doddaveerappa. O.S.No.212/2021 is filed by son of the Chikkaveerappa, brother of Doddaveerappa. In the said suit, the petitioner Smt.Nagaveni is arrayed as defendant No.2 showing her as wife of Late Nagesh son of Doddaveerappa. Those materials, such as plaint copy and written statement are not made available to the trial Court

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5 - NC: 2023:KHC:45663 WP No. 5944 of 2023

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while considering I.A.No.9. Learned counsel would further submit that he has obtained the genealogical tree from the competent authority subsequent to filing of the writ petition. The trial Court had no benefit of genealogical tree issued by competent authority. In the above circumstances, the trial Court rightly rejected I.A.No.9 under the impugned order. While rejecting the application, the trial Court, in the course of its order has observed that except copies of Aadhaar Card of petitioner herself, she has not produced any documents to show that she is a member of joint family of plaintiffs and defendants.

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As the impugned order is the result of nonproduction of any document, I deem it appropriate to set aside the said order and direct the trial Court to consider the application afresh. Hence, the following order:

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The petitioner is directed to place on record all the relevant documents including plaint copy and written statement in O.S.No.212/2021, genealogical tree obtained

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NC: 2023:KHC:45663 WP No. 5944 of 2023

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by the competent authority and any other documents on

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the next date of hearing.

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On the basis of the documents that would be made

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available by the petitioner, the trial Court to hear I.A.No.9

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afresh and pass appropriate orders, in accordance with law.

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With the above, the writ petition stands disposed of.

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Sd/JUDGE

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MPK

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List No.: 1 Sl No.: 62

Smt Nagaveni v. Smt Lakshmamma

Case brief

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Smt Nagaveni v. Smt Lakshmamma

Case brief

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