Disposed

Sri.N. Parthasarathy v. Smt. Sundari Subramanian

Karnataka HC18 Sept 2024MSA/111/2023

Case brief

AI extract

What is this about?

This court disposed of a miscellaneous second appeal challenging a remand order in a partition suit. Upholding the first appellate court's view, the High Court restored the dismissed suit to the trial court to allow the plaintiff to implead necessary parties, expediting the final disposal by April 2025.

What did the court decide?

Suit in O.S.No.923/2015 restored to Trial Court; plaintiff permitted to implead necessary defendants; disposal fixed by 30th April 2025.

Sri.N. Parthasarathy Vs Smt. Sundari Subramanian — Partition | Karnataka HC (2024)

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NC: 2024:KHC:38622 MSA No. 111 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA MISCELLANEOUS SECOND APPEAL No.111 OF 2023 (RO)

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BETWEEN:

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SRI.N. PARTHASARATHY SON OF LATE P NARAYANAN, AGED ABOUT 77 YEARS, R/AT NO.C6, ANANDAM FLATS, NO.30, LANDONS ROAD, KILLPAUK, CHENNAI-600010

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…APPELLANT

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(BY SRI SRIRANGA, SENIOR COUNSEL FOR SRI SUMAN K S, ADVOCATE)

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AND:

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Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA

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SMT. SUNDARI SUBRAMANIAN WIFE OF N SUBRAMANIAN, AGED ABOUT 88 YEARS, R/AT NO.8/1, TEMPLE ROAD, JAYALAKSHMIPURAM, MYSORE.

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N PADMANABHAN SON OF LATE P NARAYANA, AGED ABOUT 82 YEARS, R/AT NO.45, 5^TH TRUST CROSS STREET MANDAVALLI,

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CHENNAI-28

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(BY SRI UDAYA HOLLA, SERNIOR SRI YASEEN BABU, ADVOCATE FOR R1; NOTICE TO R2 IS HELD SUFFICIENT)

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…RESPONDENTS COUNSEL FOR

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2 - NC: 2024:KHC:38622 MSA No. 111 of 2023

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THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) R/W SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 27.06.2022 PASSED IN R.A NO.315/2020 ON THE FILE OF II ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU., DECREEING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 29.05.2020 PASSED IN O.S NO.923/2015 ON THE FILE OF IST ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU AND THE MATTER IS REMANDED BACK TO THE TRIAL COURT FOR THE PURPOSE OF FRESH ADJUDICATION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri Sriranga, learned Senior Counsel for Sri Suman K.S. learned counsel for the appellant and Sri Udaya Holla, learned Senior Counsel for Sri Yaseen Babu, learned counsel for the respondents.

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Though the matter is listed for admission, same is taken up for final disposal by consent of the parties.

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Facts in brief which are utmost necessary for disposal of the present appeal are as under:

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A suit came to be filed in O.S.No.923/2015 on the file of the I Addl. Senior Civil Judge and CJM, Mysuru, which on contest came to be decreed by the judgment dated 29.05.2020. The defendants filed an appeal before the II Addl.

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NC: 2024:KHC:38622 MSA No. 111 of 2023

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District and Sessions Judge, Mysuru, in R.A.No.315/2020 challenging the judgment and decree passed in O.S.No.923/2015.

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Learned Judge in the First Appellate Court after securing the records, heard the parties in detail, noted that plaintiff has not impleaded all necessary parties to the suit. Therefore, setaside the judgment and remitted the matter to the Trial Court for fresh disposal in accordance with law.

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Being aggrieved by the same, plaintiff is in appeal before this Court.

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Sri Sriranga, learned Senior Counsel for the appellant/ plaintiff, reiterating the grounds urged in the appeal memorandum, vehemently contended that approach of the First Appellate Court in setting aside the duly contested judgment on the ground that all parties are not impleaded to the suit is incorrect inasumuch as the proposed parties whom the First Appellate Court has felt that are necessary parties have already executed the relinquishment deed in favour of the plaintiff which finds place in the plaint averments itself. Therefore, impugned order is suffering from legal infirmity and

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4 - NC: 2024:KHC:38622 MSA No. 111 of 2023

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perversity calling for interference by this Court. Therefore, sought for allowing the appeal.

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Per contra, Sri Udaya Holla, learned Senior Counsel representing the contesting respondents contended that in a suit for partition, not only all the properties are to be included, but also, all necessary parties are to be arraigned as party defendants.

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The rules of pleading would compulsorily require the plaintiff to arraign all the parties either necessary or proper parties, especially in a suit for partition. If the necessary and proper parties are not arraigned as parties to the suit, the suit will have to be dismissed.

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He further emphasizes that in the case on hand, in the written statement itself, there is a specific averment in this regard and despite the same, learned Trial Judge did not consider the same while decreeing the suit of the plaintiff which has been set right by the learned Judge in the First Appellate Court in the impugned judgment following the settled principles

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of law in this regard including the judgment in the case of Kenchegowda (since dead by LRs) vs. Siddegowda @

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5 - NC: 2024:KHC:38622 MSA No. 111 of 2023

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Motegowda reported in (1994)4 SCC 294 and the judgment of this Court in the case of Tukarama vs. Sambhaji and others reported in ILR 1998 KAR 681.

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Therefore, the impugned judgment is sound and reasoned and does not require any interference by this Court that too while exercising power under Order XLIII of the Code of Civil Procedure and sought to dismiss the appeal.

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Having heard the parties in detail, this Court perused the material on record, meticulously.

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On such perusal of the material on record, it is crystal clear that the suit is one for partition. There is a specific stand taken by the defendants in the written statement itself that the suit is bad for non joinder of necessary parties. The answer to the same by the learned counsel for appellant is that there is a registered relinquishment deed executed by the proposed defendants who have not been impleaded in the suit and the said averment would take care of the requirement of rules of pleading and therefore, approach of the First Appellate Court in remitting the matter by setting aside the impugned judgment is bad in law.

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NC: 2024:KHC:38622 MSA No. 111 of 2023

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Having noticed the respective contentions of the parties,

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this Court is of the considered opinion that rules of pleading has not been adhered to by the plaintiff while filing the suit. It is one thing that the proposed defendants are impleaded and summons to those defendants are sought to be dispensed on the ground that there is a relinquishment deed. Even otherwise also the proposed defendants should have been made as plaintiff and then an averment in the plaint itself should have been made that the interest of the other parties who are not impleaded is already vested in the plaintiff having regard to the registered relinquishment deed.

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Such an exercise having not been carried out in the plaint by the learned counsel for the plaintiff in the Trial Court, First Appellate Court has rightly set-aside the judgment of the Trial Court and remitted the matter with a direction to implead all necessary parties.

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Therefore, approach of the First Appellate Court cannot be faulted with.

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7 - NC: 2024:KHC:38622 MSA No. 111 of 2023

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Having said thus, it is also necessary for this Court to take note of the fact that there is a registered relinquishment deed. The persons who have relinquished their rights when impleaded as either party defendant or party plaintiff are at liberty to agree with the contentions raised by the plaintiff. If so, there would not be any further adjudication at all. Therefore, the apprehension expressed on behalf of the plaintiff in this appeal cannot be countenanced in law.

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Having said thus, taking note of the fact the judgment came to be passed after contesting O.S.No.923/2015 which is now said to be dismissed for non prosecution having regard to the pendency of this appeal, directing the Trial Court to restore the suit and permitting the plaintiff to implead necessary parties and proceed with the suit would meet the ends of justice.

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At the same time, it should also be observed by this Court that the admissions made by the parties in the suit would not be allowed to be withdrawn and it can only be explained, would also meet the ends of justice.

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Accordingly, the following:

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NC: 2024:KHC:38622 MSA No. 111 of 2023

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ORDER

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(i) Appeal stands disposed of .

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(ii) While maintaining the order of remand, the suit in O.S.No.923/2015 is hereby restored.

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(iii) Parties shall appear before the Trial Court without further notice on 15.10.2024.

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(iv) Thereafter, learned Trial Judge shall allow the plaintiff to implead necessary defendants and proceed with the suit in accordance with law.

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(v) Further adjudication of the suit shall be expedited and dispose of the suit as early as possible, but not later than 30^th April 2025.

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(vi) Needless to emphasize that parties shall co-operate for the same.

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(vii) It is made clear that the admissions made by the parties in the suit shall not be allowed to be withdrawn and it can only be explained.

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Sd/(V SRISHANANDA) JUDGE

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kcm

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List No.: 1 Sl No.: 64

Sri.N. Parthasarathy v. Smt. Sundari Subramanian

Case brief

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Sri.N. Parthasarathy v. Smt. Sundari Subramanian

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