Sri H Galappa Vs Sri K Aswathanarayana

SRI K. MUKUNDA S/O LATE KAMANNA AGED ABOUT 47 YEARS NOS. 2, 3 & 4 ARE RESIDING O.B CHOODAHALLI VILLAGE UTHARAHALLI HOBLI UDAYAPURA PSOT KANAKAPURA ROAD BANGALORE SOUTH TALUK - 560 162.

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SRI A.S. JAYASIMHA S/O A.S. PRAHLADA RAO AGED ABOUT 56 YEARS R/A PYARA PLAZA INFANTRY ROAD BANGALORE - 560 001.

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SRI B. NAGARAJ S/O SRI BACHAPPA AGED ABOUT 51 YEARS R/A DODDAKALLASANDRA VILLAGE UTTAHARAHALLI HOBL BANGALORE SOUTH TALUK KANAKAPURA ROAD BANGALORE - 560 062.

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SMT. K. GIRIJAMMA W/O SRI H.V. KRISHNAMURTHY D/O LATE KAMANNA AGED ABOUT 49 YEARS R/A NO.612, SHESHAGIRI BUILDING ROAD MUDDUVEERASWAMY LAYOUT HEBBAL, BENGALURU - 560 024.

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…RESPONDENTS

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(BY SRI K.A. RAMESHA BABU, ADV., FOR R-7; V/O/D 02.09.2021, NOTICE TO R-1 TO R-6 IS D/W)

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS OF O.S.NO.3013/2006, PENDING ON THE FILE OF THE 5TH ADDL. SENIOR CIVIL JUDGE BENGALURU RURAL DISTRICT, BENGALURU AND AFTER EXAMINING THE SAME QUASH AND SET ASIDE THE ORDER DTD. 01.04.2021 AT ANNX-A PASSED BY THE FIRST

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HC-KAR

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ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU IN THE INTEREST OF JUSTICE.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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Plaintiff Nos.2(a) and 2(c) are before this Court in this petition filed under Article 227 of the Constitution of India with a prayer to set-aside the order dated 01.04.2021 passed on the application filed by respondent No.7 herein under Order I Rule 10(2) of CPC with a prayer to implead her as a party defendant in the suit.

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Heard the learned counsel for the petitioners.

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Suit in OS No.3013/2006 was filed by Smt. Galamma and others before the jurisdictional Civil Court seeking the relief of partition and separate possession of the suit schedule properties and for a declaration to declare that the partition deed dated 29.06.2002 executed between defendant Nos.1 to 5 is not binding on the plaintiffs and consequently, to declare the sale deeds dated 04.08.2004 executed by defendant No.5 in

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favour of defendant No.6 as not binding on the plaintiffs and also to grant mesne profits.

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In the said suit, plaintiffs and defendants had filed a memo dated 15.02.2021 stating that the dispute between the parties was settled out of Court at the intervention of elders and well wishers and plaintiff (c) and (d) have received Rs.9,00,000/- towards their share in the suit schedule properties. At the said stage, respondent No.7 herein had filed an application under Order I Rule 10(2) of CPC with a prayer to implead her as party defendant to the suit. The said application was opposed by the plaintiffs by filing objections. The Trial Court vide the order impugned has allowed the said application and being aggrieved by the same, petitioners are before this Court.

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Learned counsel for the petitioners submits that the defendant No.7 has already filed another suit in OS No.1114/2007 which is pending before the very same Court seeking the relief of partition and separate possession of the suit schedule properties which are the subject matter of the present suit. He submits that respondent No.7 is entitled to

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HC-KAR

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agitate her rights in the said suit and she is not a necessary party to the present suit. The dispute between the parties in the present suit has been settled and a memo dated 15.02.2021 is already filed reporting settlement. He submits that though respondent No.7 has prayed to implead her as defendant in this suit, Trial Court has allowed her to come on record as plaintiff and represent the suit. He submits that respondent No.7 has relinquished her rights in respect of the suit schedule properties by executing a registered relinquishment deed. Therefore, the Trial Court was not justified in allowing the application.

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Respondent No.7 is the daughter of the brother of the plaintiffs. Defendant Nos.2 to 5 are the direct brothers of respondent No.7 herein, who is the impleading applicant. It is not in dispute that she has filed suit in OS No.1114/2007, which is pending before the very same Court, seeking the relief of partition and permanent injunction restraining defendant Nos.1 to 3 and 5 to 6 in the said suit from alienating the suit schedule properties. Defendants in the present suit are also defendants in OS No.1114/2007. Respondent No.7 is claiming a

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HC-KAR

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right in the suit schedule properties and her suit seeking partition of the suit schedule properties is pending in OS No.1114/2007. In the meanwhile, in the present suit, settlement is said to be reported and according to respondent No.7, to deny her legitimate share, an attempt is made by the parties in the present suit. It is stated in the affidavit filed in support of her application that defendant No.1 in OS No.1114/2007, who is defendant No.2 in the present suit has filed an application to club both the suits and the said application has been already allowed on 29.04.2015. The application has been opposed by the plaintiffs contending that the dispute between the parties to the present suit has been settled and therefore, the application is liable to be rejected.

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Undisputedly, based on the settlement reported by the parties to the suit, no orders have been passed till date and apprehension of respondent No.7 is that the proposed settlement is likely to affect her legitimate rights in the suit schedule properties. Therefore, I am of the opinion that the Trial Court was fully justified in allowing her application. It appears that by mistake, the Trial Court has mentioned that

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applicant in the application filed under Order I Rule 10(2) of CPC is permitted to come on record and represent the suit. The prayer made in the application is to implead the applicant as party defendant to the suit. Therefore, it is clarified that the impleading applicant shall be permitted only to come on record as party defendant and not as a plaintiff. I do not find any other infirmity or illegality in the order impugned which needs interference by this Court. Therefore, I am of the opinion that the writ petition does not merit consideration. Accordingly, the writ petition is dismissed .

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Sd/(S VISHWAJITH SHETTY) JUDGE

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DN

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List No.: 1 Sl No.: 34

Sri H Galappa v. Sri K Aswathanarayana

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Sri H Galappa v. Sri K Aswathanarayana

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