Allowed

Sri S P Vijaya Kumar v. Smt Shobha Nagaraj

Karnataka HC1 Aug 2023WP/6516/2021

Case brief

AI extract

What is this about?

The High Court allowed the writ petition under Art. 227, holding that the trial court erred in rejecting the impleadment application in a partition suit without examining if the proposed defendants were necessary and proper parties.

What did the court decide?

The impugned order on I.A.No.12 was set aside; the trial court was directed to reconsider the application and pass an appropriate order.

Sri S P Vijaya Kumar Vs Smt Shobha Nagaraj — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:26711 WP No. 6516 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 6516 OF 2021 (GM-CPC)

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BETWEEN:

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SRI S P VIJAYA KUMAR S/O LATE S PADMARAJ, AGED ABOUT 55 YEARS, R/AT FLAT NO.201, 2^ND FLOOR, SOUNDARYA LINKS, NO 1, LINK ROAD, SHESHADRIPURAM, BENGALURU -560020.

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…PETITIONER

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(BY SRI C N ACHUTHA MURTHY, ADV.)

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AND:

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SMT. SHOBHA NAGARAJ W/O LATE S J NAGARAJ, AGE: MAJOR

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Digitally signed by NANDINI B G Location: HIGH COURT OF KARNATAKA

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SMT. REKHA DEVI D/O LATE S J NAGARAJ, AGE: MAJOR

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SMT. PRATHIBHA DEVI D/O LATE S J NAGARAJ, AGE: MAJOR

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SMT. SACHI DEVI D/O LATE S J NAGARAJ, AGE: MAJOR

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ALL ARE ADDRESSED C/O CHINNAS’ RESIDENCY NO.32, SHESHADRI ROAD ANAND RAO CIRCLE BENGALURU -560009.

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NC: 2023:KHC:26711 WP No. 6516 of 2021

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S P BAHUBALI AGED ABOUT 56 YEARS, S/O LATE S J PADMARAJ, R/AT NO.15/A, NEW MUNICIPAL NO.15, 2^ND CROSS HARIJANA COLONY, GANGANAGAR, BENGALURU-560030.

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MRS. VIPULA AGED ABOUT 64 YEARS, D/O LATE S J PADMARAJ, R/AT NO 15/A, NEW MUNCIPAL NO.15, 2^ND CROSS HARIJANA COLONY, GANGANAGAR, BENGALURU 560030.

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MR. S P BHARATHA AGED ABOUT 58 YEARS, S/O LATE S J PADMARAJ, R/AT FLAT 003, PADMASHREE GRUHASTHAAM, 2^ND MAIN, SHESHADRIPURAM, BENGALURU- 560030.

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SRI S P HOMBANNA AGED ABOUT 53 YEARS, S/O LATE S J PADMARAJ, R/AT NO.507/5, SADASHIVANAGAR, UPPER PALACE ORCHARDS, BENGALURU -560080.

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SRI S P MAHAVEER AGED ABOUT 50 YEARS, S S/O LATE S J PADMARAJ, R/AT NO.4011, 10^TH CROSS, SWIMMING POOL EXTENSION, MALLESHWARAM, BENGALURU -560003.

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SRI D C SHEETAL AGED ABOUT 39 YEARS, S/O LATE D R CHANDRANATH, R/AT GULIGENAHALLI,

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3 - NC: 2023:KHC:26711 WP No. 6516 of 2021

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SIRA TALUK, TUMKUR DISTRICT-572137.

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…RESPONDENTS

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(BY SRI N DINESH RAO, ADV. FOR R1 R2, R3, R4, R10 SERVED & UNREPRESENTED SRI PRAKASH SALMANI, ADV. FOR R5 V/O DATED 01.08.2023 PETITION AGAINST R6 ABATED SRI H.S. SHETTY, ADV. FOR R7 SRI K.V. PRAKASH, ADV. FOR R8 SRI G.H. LOHITH KUMAR, ADV. FOR R9)

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THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS IN OP.S.NO.1552/2012 AS THE FILE OF VII TH ADDL. CITY AND SESSIONS JUDGE (CCH NO.19) BANGALORE CITY AND SET ASIDE THE ORDERS PASSED ON IA NO.12 FILED UNDER ORDER 1 RULE 10(2) R/W SECTION 151 OF CPC PASSED BY THE LEARNED JUDGE VIITH ADDL CITY CIVIL AND SESSIONS JUDGE CCH NO.19 BANGALORE AS PER ANNEXURE-F.

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

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ORDER

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The petitioner/plaintiff is before this Court under

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Article 227 of the Constitution of India questioning the correctness and legality of the order dated 27.01.2021 on I.A.No.12 filed under Order 1 Rule 10(2) of CPC in O.S.No.1552/2012 on the file of the VII Additional City

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Civil and Sessions Judge, Bengaluru, whereunder the application filed to implead the parties mentioned in the application is rejected.

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4 - NC: 2023:KHC:26711 WP No. 6516 of 2021

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Heard the learned counsel Sri.C.N.Achutha

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Murthy for petitioner and learned counsel Sri.N.Dinesh Rao for respondent No.1. Perused the writ petition papers.

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Learned counsel for the petitioner would submit

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that the petitioner/plaintiff filed suit in O.S.No.1552/2012 for partition and separate possession of the suit schedule A and B properties. When the suit was at the stage of further cross-examination of PW1, petitioner/plaintiff filed I.A.No.12 under Order 1 Rule 10(2) of CPC to implead the proposed defendants to the suit. It is submitted that the proposed defendants are brothers and sisters of the plaintiff and defendants. The said application was opposed by the defendants by filing objections contending that the application is filed belatedly and stating that they are not necessary parties to the suit. The Trial Court under impugned order, rejected the application filed under Order 1 Rule 10(2) of CPC. Learned counsel for the petitioner would contend that in a suit for partition, all the family members would be necessary and proper parties.

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5 - NC: 2023:KHC:26711 WP No. 6516 of 2021

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As the plaintiff had inadvertently not impleaded all the members of the family, he filed an application under Order 1 Rule 10(2) of CPC to implead all the family members.

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The Trial Court without assigning any reason only observing that no sufficient reason has been made out for such belated filing of application, dismissed the application. Learned counsel would submit that the Trial Court failed to examine as to whether the proposed defendants are necessary parties or not to the suit. Without examining as to whether they are necessary parties to the suit or not, the Trial Court could not have rejected the application.

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Per contra, learned counsel Sri.N.Dinesh Rao for respondent No.1 would support the order passed by the Trial Court and also submits that there was one more suit for partition and the judgment and decree passed in the said suit is before this Court in appeal. He submits that the plaintiff had not made the proposed defendants as parties in the earlier suit also. Therefore, he submits that the Trial

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NC: 2023:KHC:26711 WP No. 6516 of 2021

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Court is justified in rejecting the application filed by the petitioner.

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Having heard the learned counsel appearing for

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the parties and on perusal of the writ petition papers including the impugned order passed by the Trial Court, I am of the view that, impugned order requires interference by this Court.

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The suit is one for partition and separate possession. Normally in a suit for partition, all the family members are necessary and proper parties. Order 1 Rule 10(2) of CPC provides for adding any party who is necessary and proper, for fair adjudication of the suit at any stage of the proceedings. The petitioner filed I.A.No.12 under Order 1 Rule 10(2) of CPC to implead the proposed defendants who are sisters of the plaintiff. The Trial Court passed a cryptic order which reads as follows:

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“5. Upon consideration of the above facts it is found that, this application is made when the stage is posted for further cross of

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7 - NC: 2023:KHC:26711 WP No. 6516 of 2021

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PW.1 and no sufficient reason has been made out for such belated filing. Hence for the reasons stated above, I proceed to pass the following:”

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The Trial Court while dismissing I.A.No.12 for

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impleading has failed to examine as to whether the proposed defendants are necessary and proper parties. In the said partition suit when the petitioner/plaintiff contends that proposed defendants are brothers and sisters of the plaintiff, the Trial Court ought to have examined whether they are necessary and proper parties to the suit. The Trial Court without examining as to whether the proposed defendants are necessary parties, dismissed the application by a cryptic order. No reasons are assigned for rejecting the application except that no sufficient reason has been made out for such belated filing, which alone cannot be reason for rejecting the application. The Court has the duty to examine as to whether the proposed defendants are necessary and properties to the suit, that too when it is stated that

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NC: 2023:KHC:26711 WP No. 6516 of 2021

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proposed defendants are sisters and brothers, in a

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partition suit.

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For the above stated reasons, I proceed to pass

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the following:

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ORDER

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1. Writ petition is allowed.

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1. The impugned order dated 27.01.2021 on I.A.No.12 in O.S.No.1552/2012 on the file

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of the VII Additional City Civil and Sessions Judge, Bengaluru is set aside.

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1. The Trial Court is directed to re-consider the application I.A.No.12 filed under Order 1 Rule 10(2) of CPC and pass appropriate order in accordance with law.

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SD/JUDGE

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NC CT:bms List No.: 1 Sl No.: 16

Sri S P Vijaya Kumar v. Smt Shobha Nagaraj

Case brief

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Sri S P Vijaya Kumar v. Smt Shobha Nagaraj

Case brief

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