Radha Vs Muniyamma

14b. SRI MUNIYAPPA S/O LATE KAVERAPPA @ RAJU, AGED ABOUT 52 YEARS, R/O NO.185, HAL 2ND STAGE, GOVINDAPPA LANE INDIRANAGAR POST, KODIHALLI, BENGALURU - 560 047.

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14c. SRI VENKATARAJU AGED ABOUT 46 YEARS, R/O C/O CHINNAPULLAIAH HOUSE (RTO), NEAR YELLAMMA TEMPLE SRINRINIVAGILU VILVEKNAGAR POST, BENGALURIVAGILU VILVEKNAGAR POST BENGALURU - 560 047.

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14d. SRI GOPALA S/O LATE KAVERAPPA @ RAJU, AGED ABOUT 42 YEARS, R/O NO.1, OPP BALAJI GREEN APARTMENTS, 2ND CROSS ROAD, SRINRINIVAGILU VILVEKNAGAR POST, BENGALURIVAGILU VILVEKNAGAR POST, BENGALURU - 560 047.

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14e. SRI VENKATESH LAGUMAMMA W/O LATE VENKATESH, AGED ABOUT 40 YEARS R/O NO.1 OPP BLAJI GREEN APARTMENTS, 2ND CROSS ROAD SRINRINIVAGILU VILVEKNAGAR POST, BENGALURIVAGILU VILVEKNAGAR POST, BENGALURU - 560 047.

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14f. SRI NAGARAJU S/O LATE KAVERAPPA @ RAJU, AGED ABOUT 40 YEARS, R/O 2ND CROSS, C/O NEELAMMA BUILDING, NEAR SHANIMAHATMA TEMPLE, SRINIVAGILU VIVEK NAGAR POST, BENGALURU - 560 047.

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SRI YELLAPPA FATHER'S NAME NOT KNOWN, PROPRIETOR OF SRI LAXMIVENKATESHWARA, IRON AND STEEL WORKS, HOSUR ROAD, ADUGODI BENGALURU - 560 029.

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SRI GOVINDAPPA S/O LATE SIDDAPPA NO.115 4TH CROSS CHIKKALAXMAIAH LAYOUT ADUGODI HOSUR ROAD, BENGALURU - 560 029.

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SRI T. MUNIYAPPA FATHERS NAME NOT KNOWN R/O NO.81/3 VENKATESHWAR LAYOUT 13TH CROSS 20TH B MAIN IST STAGE BTM LAYOUT BENGALURU - 560 068.

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SRI LIOYED VINCENT S/O KUNJU KUNJU A P AGED ABOUT 50 YEARS.

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SMT. PUSHPA LIOYED W/O LIOYED VINCENT AGED ABOUT 48 YEARS.

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RESPONDENT NO.18 AND 19 ARE R/O NO.14/3 6TH CROSS S.T. BED LAYOUT SRINIVAGILU VIVEKANAGAR POST BENGALURU - 560 047.

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SRI PINAKN A DAVE S/O A.P. DAVE AGE MAJOR.

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SMT. MALA DAVE W/O SRI PINAKN A DAVE AGE MAJOR.

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RESPONDENT NO.20 AND 21 BOTH ARE RESIDING AT NO.34 ST BED KORAMANGALA, BENGALURU - 560 034.

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SRI SHIVAPRAKASH S/O LATE M. SONNAPPA AGED ABOUT 35 YEARS R/O NO.27, 1ST CROSS AMBEDKAR COLONY SRINIVAGILU VIVEKANAGAR POST BENGALURU - 560 047.

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SMT. VATSA VARGHEESE CHOCKO AGED ABOUT 60 YEARS W/O SRI JOHNCHOCKO R/O NO.50 SAMPANGI TANK ROAD, BENGALURU - 560 025.

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AND ALSO AT NO.14/1 6TH MAIN S.T. BED LAYOUT KORAMANGLA SRINIVAGILU VEVEKNAGAR POST BENGALURU - 560 047.

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MR. TONY VINCENT AGED ABOUT 55 YEARS,

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S/O SRI A.P. KUNJU KUNJU.

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MR. SUNITA TONY AGED ABOUT 46 YEARS, W/O SRI TONY VINCENT.

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RESPONDENT NO.24 RESIDING AT NO.2/7, FRIENDS COLONY VIVEKNAGAR POST, KORAMANGALA BENGALURU - 560 047.

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SRI M. NAGARAJ S/O LATE MUNIYAPPA AGED ABOUT 58 YEARS R/O OLD NO.39, NEW NO.19 1ST MAIN SRINIVAGILU VIVEKNAGAR POST BENGALURU - 560 047.

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…RESPONDENTS

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(BY SRI V. RAVIPRAKASH, ADV., SRI P. SRINIVAS, ADV., FOR R-19; SRI S. SUBRAMANYA, ADV., FOR R-24 & R-25; V/ODTD:11.07.2025, NOTICE TOR -14 (c.d &f) ARE H/S V/O DTD 25.02.2021, NOTICE TO R-14(b), R-17, R-26 ARE H/S; V/O DTD 25.02.2021, NOTICE TO R-1 TO R-13 & R-15 TO R-21 ARE D/W R-23 - SERVED & UNREPRESENTED, NOTICE TO R-1 TO R-17, R-20 TO R-22 & R-26 ARE D/W)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER AT ANNEXURE-A DTD.27.1.2020 PASSED BY THE ADDITIONAL CITY CIVIL AND SESSION JUDGE (CCH NO44) BENGLAURU IN O.S.NO.5588/2004 ON AN IMPLEADING APPLICATION IA NO.1/2020 FILED BY THE PETITIONERS TO IMPLEAD THEM AS DEFENDANTS NO.25 TO 29.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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This writ petition under Article 227 of the Constitution of India is filed with a prayer to set aside the order dated 27.01.2020 passed on IA.no.1/2020 in O.S.No.5588/2004 by the Court of XLIII Addl. City Civil & Sessions Judge, Bengaluru.

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Heard the learned Counsel for the parties.

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Suit in O.S.No.5588/2004 was filed by the jurisdictional Civil Court seeking the relief of partition and separate possession of the suit schedule properties. One Mr. Srinivas was plaintiff no.3 in the said suit. It appears that during the pendency of the suit, plaintiff no.3 - Srinivas had died, and thereafter, IA nos.13, 14 & 15 of 2019 were filed to condone the delay in filing the application seeking to set aside the abatement, to set aside the abatement, and to bring the legal representatives of deceased plaintiff no.3 on record. The said applications were rejected by the Trial Court on 21.01.2020. Thereafter, IA.no.1/2020 was filed by the petitioners herein under Order I Rule 10 of CPC to implead them as party defendant nos.25 to 29 in O.S.No.5588/2004. The said application was opposed by the contesting defendants and the

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Trial Court has rejected the said application vide the order impugned. Being aggrieved by the same, the petitioners who are applicants in IA.no.1/2020 are before this Court.

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Learned Counsel for the petitioners submits that IA nos.13, 14 & 15 of 2019 was filed by the other plaintiffs in O.S.No.5588/2004 and the petitioners herein who were the proposed legal representatives in the said applications, were not heard before the Trial Court, which had rejected the said applications. Subsequently, after coming to know about the said aspect of the matter and also about pendency of the suit in O.S.No.5588/2004, the applicants have filed IA.no.1/2020 which has been wrongly rejected by the Trial Court. Accordingly, he prays to allow the petition.

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Per contra, learned Counsel appearing for the contesting respondents have opposed the prayer made by the petitioners. They submit that already the prayer made to bring the legal representatives of deceased plaintiff no.3 was dismissed by the Trial Court and the said finding amounts to res judicata, and therefore, the Trial Court was justified in dismissing IA.no.1/2020. Accordingly, they pray to dismiss the petition.

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Perusal of the material on record would go to show that the husband of petitioner no.1 and father of petitioner nos.2 to 5 was plaintiff no.3 in O.S.No.5588/2004. It appears that during the pendency of the suit, plaintiff no.3 had died on 10.12.2009. Thereafter, the other plaintiffs had filed the applications in IA nos.13, 14 & 15 of 2019 under Section 5 of the Limitation Act, Under Order XXII Rule 9 CPC and Order XXII Rule 3 CPC, with prayers to to condone the delay in filing the application seeking to set aside the abatement, to set aside the abatement, and to bring the legal representatives of deceased plaintiff no.3 on record. The said applications were opposed by the contesting defendants by filing objections.

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The Trial Court considering the inordinate delay in filing the application to bring the legal representatives of deceased plaintiff no.3 on record, held an inquiry and being not satisfied with the explanation offered to condone the inordinate delay caused in filing the applications, had rejected IA.no.13/2019 filed under Section 5 of the Limitation Act, and consequently, IA.nos.14 & 15 of 2019 were also rejected.

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IA.no.1/2020 is filed independently by the legal representatives of deceased plaintiff no.3 to implead them as party defendants in the suit. The relationship between the parties is not in dispute. The legal representatives of deceased plaintiff no.3 intend to come on record to claim the share, for which plaintiff no.3 was entitled in the suit schedule properties.

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The applicant in an application under Order I Rule 10 CPC would succeed if he is able to prove that he is a necessary or proper party for the purpose of adjudication of the dispute involved in the suit. A necessary party is a person whose presence is essential for the purpose of properly and effectively adjudicating the dispute in the suit, and a proper party is a person whose presence may not be essential, but for effective adjudication of the dispute, his presence would be required.

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In the case on hand, the petitioners claim under plaintiff no.3 who had approached the Trial Court along with the other plaintiffs seeking a share in the suit schedule properties. The relationship between the parties is not in dispute, and if that is so, it cannot be disputed that the petitioners have interest in the subject matter of the suit, and therefore, their presence

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becomes essential and thus, they will become necessary party to the suit.

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The Trial Court has failed to appreciate the aforesaid aspects of the matter and has erred in rejecting IA.no.1/2020 filed by the petitioners. IA.no.13/2019 filed under Section 5 of the Limitation Act was dismissed for the reason that the other plaintiffs had failed to properly and satisfactorily explain the delay caused in filing the application to bring the legal representatives of deceased plaintiff no.3 on record, and no finding is recorded as to whether the petitioners herein are the legal representatives of deceased plaintiff no.3 nor it is held that petitioners are not necessary party to the suit. If that is so, the order passed on IA nos.13, 14 & 15 of 2019 would not amount to res judicata. Therefore, I do not find any merit in the contention urged on behalf of the contesting defendants. Under the circumstances, I am of the opinion that the order impugned passed by the Trial Court cannot be sustained. Accordingly, the following order:

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