Anjali D K Vs Mohan Patel

THIS WRIT PETITION IS FILED PRAYING TO QUASH THE ORDER DATED 16.01.2019 IN O.S.NO.228/2014 ON THE FILE OF THE LEARNED III ADDIITONAL CIVIL JUDGE AND JMFC, CHANNARAYAPATNA, MARKED AS ANNEXURE-A HEREIN, TO THE EXTENT THAT IT ALLOWS I.A.NO.5 FILED BY THE R-8

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HC-KAR

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UNDER ORDER 22 RULE 4 CPC.GRANT AN INTERIM ORDER FOR STAY OF FURTHER PROCEEDINGS IN O.S.NO.228/2014 VIDE ANNEXURE-A ON THE FILE OF THE LEARNED III ADDITIONAL CIVIL JUDGE AND JMFC, CHANNARAYAPATNA.

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THIS WRIT PETITION IS COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This petition is filed challenging the order dated 16.01.2019 passed in O.S.No.228/2014 by the III Additional Civil Judge and JMFC-Channarayapatna (for short 'The Trial Court') on I.A.No.5 filed by the 8^th respondent under Order 22 Rule 4 of the Code of Civil Procedure, 1908.

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2. Heard Sri M.N.Umashankar, learned counsel for the petitioners and Sri. Venkatesha C, learned counsel for respondent Nos.1 and 4, Sri. T.Seshagiri Rao, learned counsel for respondent Nos.2, 3, 5 to 7 and 8.

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3. The petitioner has filed O.S.No.228/2014 for relief

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of partition, separate possession and other reliefs. In the

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HC-KAR

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said suit, one Sri. D. T. Krishnegowda S/o Sri. D.Thimmappa filed an application under Order 22 Rule 4 of CPC seeking to come on record as the legal representative of the deceased respondent No.5 and sought permission to prosecute the suit. The said application was allowed by the trial Court under the impugned order.

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4. The contentions of the learned counsel for the petitioner that the averment made in the affidavit accompanying the application itself makes it very clear that the applicant is claiming to be the legatee under the Will and not legal heirs. Hence, such an application does not need to be allowed. Sri.T. Seshagiri Rai, learned counsel for respondents rebutting the said contention submits that there are other litigations between the parties and ultimately, the present applicant Sri.D.T.Krishnegowda, filed RSA.No.1572/2014 challenging the judgment and decree in RA.No.100/2013 and the cause title of the appeal itself indicate that Sri.D.T.Krishnegowda that is the present applicant is permitted to prosecute the appeal and the appeal

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HC-KAR

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was partly allowed. Hence, he seeks to dismiss the petition by permitting the applicant to continue in the suit.

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5. It is to be noticed that the applicant Sri.D.T.Krishnegowda, who is not a party to the suit has filed application under Order 22 Rule 4 of CPC, seeking to come on record as a legal representative of defendant No.5. Admittedly, the same cannot be allowed, as the averments made in the application clearly indicate that the applicant claims his right based on the Will stated to have been executed by Smt.Jayalakshmamma, defendant No.5 in the suit. The affidavits at paragraph No.2 clearly indicates who are the legal heirs of the deceased Smt.Jayalakshmamma, defendant No.5. The trial Court, considering the same has rightly allowed I.A.No.6 to 8 by permitting the legal heirs of the Smt.Jayalakshmamma to come on record. The contention with regard to the independent right of the applicant Sri. D.T.Krishnegowda cannot be adjudicated in the present proceedings. It is always open for the said applicant to file proper applications to come on record. However, he

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HC-KAR

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cannot be treated as a legal heir under Order XXII Rule 4 of CPC. Hence, the Trial Court has erroneously allowed I.A.No.5 without considering the material in its proper

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perspective and the same is required to be interfered with.

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6. For the aforementioned reasons, I pass the

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following:

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ORDER

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i. The writ petition is allowed .

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ii. The impugned order dated 16.01.2019 in O.S.No.228/2014 passed by the III Additional Civil Judge and JMFC, Channarayapatna in so far as I.A.No.5 is set aside.

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It is needless to observe that the applicant is to work

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out his remedies in accordance with law.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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AG

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List No.: 1 Sl No.: 16

Anjali D K v. Mohan Patel

Case brief

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Anjali D K v. Mohan Patel

Case brief

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