Allowed

Sri. Sandeep Digamber Kadwadkar v. Smt. Sukanti Digamber Kadwadkar

Karnataka HC10 Sept 2024WP/111006/2017

Case brief

AI extract

What is this about?

High Court allowed two writ petitions challenging rejection of applications to implead new respondents and amend plaint in a partition suit, quashing the Trial Court orders and directing suit disposal within one year.

What did the court decide?

Impugned orders on I.A.No.4 and I.A.No.5 of O.S.No.245/2012 quashed. Proposed respondents arrayed as defendants 4 and 5. Plaint amendment directed within 15 days. Suit disposal directed within one yea

Sri. Sandeep Digamber Kadwadkar Vs Smt. Sukanti… — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:12956 WP No. 111006 of 2017 C/W WP No. 110159 of 2017

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 10^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE H.P.SANDESH

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WRIT PETITION NO. 111006 OF 2017 (GM-CPC)

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C/W

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WRIT PETITION NO. 110159 OF 2017

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IN WP NO.111006/2017

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BETWEEN:

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SRI. SANDEEP DIGAMBER KADWADKAR, AGED ABOUT 57 YEARS, OCC: AUTO RICKSHAW DRIVER, R/O. NANDAWAL, KADWAD, KARWAR TALUK, DISTRICT: UTTARA KANNADA.

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GIRIJA A BYAHATTI

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SRI. SHASHANK DIGAMBER KAWADKAR, AGED ABOUT 54 YEARS, OCC: EX-SERVICEMAN, R/O. AT AND POST NANDAWAL, KADWAD, KARWAR TALUK,

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DISTRICT: UTTARA KANNADA.

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…PETITIONERS

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Location: HIGH COURT OF KARANTAKA DHARWAD BENCH

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(BY SMT. GAYATRI S.R., ADVOCATE)

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AND:

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SMT. SUKANTI DIGAMBER KADWADKAR, AGED ABOUT 77 YEARS, OCC: HOUSEHOLD, R/O. AT AND POST NANDAWAL, KADWAD, KARWAR TALUK, DISTRICT: UTTARA KANNADA.

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SRI. SUHAS DIGAMBER KADWADKAR, AGED ABOUT 44 YEARS, OCC: BUSINESS, R/O. NANDAWAL, KADWAD, KARWAR TALUK, DISTRICT: UTTARA KANNADA.

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NC: 2024:KHC-D:12956 WP No. 111006 of 2017 C/W WP No. 110159 of 2017

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SMT. KAVITA VIJAY KHARGEKAR, AGED ABOUT 40 YEARS, OCC: HOUSEWIFE, R/O. NEAR JUMMA MASJID, GOKUL ROAD, HUBBALLI, DISTRICT:DHARWAD.

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…RESPONDENTS

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(BY SRI. V.S. BICHAGATTI, ADVOCATE FOR R1-R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE TO QUASH THE ORDER DATED 31.10.2017 ON I.A. NO.5, IN O.S.NO.245/2012, PASSED BY PRINCIPAL CIVIL JUDGE (CIVIL JUDGE AND JMFC-II) AT KARAWAR, PRODUCED VIDE ANNEXURE-G AND ETC.

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IN WP NO.110159/2017

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BETWEEN:

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SRI. SANDEEP DIGAMBER KADWADKAR, AGED ABOUT 57 YEARS, OCC: AUTO RICKSHAW DRIVER, R/O. NANDAWAL, KADWAD, KARWAR TALUK, DISTRICT: UTTARA KANNADA.

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SRI. SHASHANK DIGAMBER KAWADKAR, AGED ABOUT 54 YEARS, OCC: EX-SERVICEMAN, R/O. AT AND POST NANDAWAL, KADWAD, KARWAR TALUK, DISTRICT: UTTARA KANNADA.

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…PETITIONERS

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(BY SMT. GAYATRI S.R., ADVOCATE)

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AND:

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SMT. SUKANTI DIGAMBER KADWADKAR, AGED ABOUT 77 YEARS, OCC: HOUSEHOLD, R/O. AT AND POST NANDAWAL, KADWAD, KARWAR TALUK, DISTRICT: UTTARA KANNADA.

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3 - NC: 2024:KHC-D:12956 WP No. 111006 of 2017 C/W WP No. 110159 of 2017

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SRI. SUHAS DIGAMBER KADWADKAR, AGED ABOUT 44 YEARS, OCC: BUSINESS, R/O. NANDAWAL, KADWAD, KARWAR TALUK,

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DISTRICT: UTTARA KANNADA.

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SMT. KAVITA VIJAY KHARGEKAR, AGED ABOUT 40 YEARS, OCC: HOUSEWIFE, R/O. NEAR JUMMA MASJID, GOKUL ROAD, HUBBALLI, DISTRICT:DHARWAD.

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SMT. JANAVI W/O. ULHAS NAIK, AGED ABOUT 32 YEARS, OCC: HOUSEWIFE, R/O. LOWER MAKERI, POST: SHEJAWAD, KARWAR TALUK-581306, DISTRICT: UTTARA KANNADA.

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SRI. MOHAN GANAPATI GAONKAR, AGED ABOUT 35 YEARS, OCC: SERVICE, R/O. LOWER MAKERI, POST: SHEJAWAD, KARWAR TALUK-581306, DISTRICT: UTTARA KANNADA.

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…RESPONDENTS

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((BY SRI. V.S. BICHAGATTI, ADV. FOR R1-R3; SRI. PRAVEEN P. TARIKAR, ADV. FOR R4 & R5)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE TO QUASH THE ORDER DATED 18.09.2017, ON I.A NO.4, IN O.S.NO.245/2012, PASSED BY PRINCIPAL CIVIL JUDGE (CIVIL JUDGE AND JMFC-II) AT KARWAR, PRODUCED VIDE ANNEXURE-E AND ETC.

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THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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4 - NC: 2024:KHC-D:12956 WP No. 111006 of 2017 C/W WP No. 110159 of 2017

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)

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These two writ petitions are filed by the plaintiffs before the Trial Court in O.S.No.245/2012 being aggrieved by the rejection of the applications. W.P.No.110159/2017 is filed challenging the dismissal of I.A.No.4 filed under Order I Rule 10 of CPC, wherein a prayer is sought to make the proposed respondents as parties to the proceedings and W.P.No.111006/2017 is filed challenging dismissal of I.A.No.5 filed under Order VI Rule 17 of CPC, for incorporating some of the properties in the suit schedule properties.

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Learned counsel appearing for the petitioners would vehemently contend in respect of dismissal of I.A.No.4 is concerned, that the Trial Court committed an error in dismissing this said application and in coming to the conclusion that the properties sold in favor of the respondents No.4 and 5 are not part of

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5 - NC: 2024:KHC-D:12956 WP No. 111006 of 2017 C/W WP No. 110159 of 2017

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the suit schedule properties and when the said properties are not the suit schedule properties, the proposed respondents cannot be impleaded. It is contended that, there is a clear averment in the affidavit filed in support of the application that the sale deed is without the knowledge of the plaintiffs, which is also admitted by the proposed defendants No.4 and 5 in their objections, wherein they have stated that the sale deed came to be executed by defendant No.1 for herself and as alleged GPA holder of other owners and the Trial Court failed to consider the same and hence it requires interference.

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Learned counsel appearing for the proposed respondents No.4 and 5 would vehemently contend that, the Trial Court has not committed any error in dismissing the application. Though they admit that they have purchased the properties from the mother, that is defendant No.1, in the suit the said properties

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have not been added as one of the suit schedule properties and hence rightly rejected the same.

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The counsel appearing for the petitioner would vehemently contend that, the Trial Court committed an error in rejecting the application and in the affidavit supporting the application, specifically pleaded that the sale deed is without the knowledge, which is also admitted by the proposed defendants No.4 and 5 in their objections, wherein they have stated that the sale deed came to be executed by defendant No.1 for herself and as alleged GPA holder of other owners. The counsel would contend that the Trial Court failed to appreciate that the prayer sought in the application is very much important for proper adjudication of the matter and the Trial Court failed to consider the reasons assigned in the application and hence it requires interference.

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This Court issued notice against respondents No.1 to

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3 and they have been represented through the

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counsel and the counsel was absent in the early morning and also in the afternoon. Hence taken as no arguments on behalf of respondents No.1 to 3.

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Having heard the petitioners’ counsel and also the counsel appearing for the proposed respondents No.4 and 5, and also taking note of the material on record, the suit is filed for the relief of partition. It is the contention of the plaintiffs in the suit that, they were not having any knowledge about the sale of the property made by their mother and when they came to know about the same, immediately and subsequently they filed an application for amendment to include the properties which were also sold. Prior to that they made an application to bring the prospective purchasers as parties to the proceedings. Though the Trial Court came to the conclusion that the properties which have been sold in favor of the proposed respondents are not part of the suit but subsequently an application is filed and

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both the applications for impleading as well as for amendment for inclusion of properties which have been sold, are rejected.

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When the proposed respondents are also not disputing the fact that they have purchased the properties from the mother of the plaintiffs and when the plaintiffs wanted to include the properties which have been sold in favour of the proposed respondents No.4 and 5, the Trial Court ought not to have rejected the application for impleading as well as for amending the plaint for inclusion of the properties. It is the contention of the petitioners that the properties are the family properties and mother

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was not having any absolute right to sell the properties. When such being the issue involved between the parties, inclusion of the properties is also necessary in a suit for partition and the proposed respondents, who have not disputed that they have purchased the properties from the mother,

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9 - NC: 2024:KHC-D:12956 WP No. 111006 of 2017 C/W WP No. 110159 of 2017

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are also necessary parties while deciding the issue involved in the case. Hence the impugned order passed by the Trial Court in both the petitions are required to be quashed.

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In view of the discussions made above, I pass the following:

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ORDER

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i. Both the writ petitions are allowed.

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ii. The order dated 18.09.2017 on I.A.No.4 and the order dated 31.10.2017 on I.A.No.5, passed in O.S.No.245/2012 by the Principal Civil Judge (Civil Judge and JMFC II) at Karwar, are quashed.

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iii. Consequently the proposed respondents No.4 and 5 are arrayed as defendants No.4 and 5 in O.S.No.245/2012.

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iv. The petitioners’ counsel is directed to amend the plaint in view of allowing of I.A.No.5, within 15

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10 - NC: 2024:KHC-D:12956 WP No. 111006 of 2017 C/W WP No. 110159 of 2017

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days from today and thereafter one month’s time is given to file written statement.

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v. The suit is of more than a decade old and hence the Trial Court is directed to dispose of the suit within a period of one year. Both respective parties and counsel are directed to assist the Trial Court in disposal of the suit within the time frame of one year.

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Sd/(H.P.SANDESH) JUDGE

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gab CT-MCK List No.: 2 Sl No.: 4

Sri. Sandeep Digamber Kadwadkar v. Smt. Sukanti Digamber Kadwadkar

Case brief

What is this about?

What did the court decide?

Sri. Sandeep Digamber Kadwadkar v. Smt. Sukanti Digamber Kadwadkar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

Parties & counsel

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