IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.1877 OF 2019 (GM-CPC) BETWEEN:
ALOYSIUS S. LOBO S/O VALERIYAN LOBO AGED ABOUT 45 YEARS R/AT ALS VIEW, LOBO GARDEN NEAR P.U. COLLEGE MELANTHABETTU VILLAGE AND POST BELTHANGADY TALUK-574294.
(By Mr. DILRAJ JUDE ROHIT SEQUEIRA, ADV.) AND:
1. NAVEEN RONALD PERIERA S/O LATE THIMOTHY PEREIRA AGED ABOUT 36 YEARS R/A NO.58, LAL BUILDING 36, GOA STREET, FORT, MUMBAI MAHARASHTRA-400001.
2. ALWYN PERIRA S/O LATE THIMOTHY PEREIRA AGED ABOUT 36 YEARS R/AT NO.58, LAL BUILDING 36, GOA STREET, FORT, MUMBAI MAHARASHTRA-40001 REPRESENTED BY HIS GPA HOLDER NAVEEN RONALD PEREIRA R/A NO.58, LAL BUILDING 36, GOA STREET, FORT, MUMBAI MAHARASHTRA 400001.
… PETITIONER 3 SMT. WINNIE PEREIRA (NOW DECEASED) REPRESENTED BY LEGAL HEIRS.
3(a) SMT. VINAYA SHALINI AGED ABOUT 42 YEARS D/O LATE WINNIE PEREIRA AND LATE WILLIAM PEREIRA R/A BONDEL, MANGALORE TALUK DAKSHINA KANNADA-575001.
3(b) SMT. VIJAY SHANTHI AGED ABOUT 40 YEARS W/O MARK D’SOUZA D/O LATE WINNIE PEREIRA AND LATE WILLIAM PEREIRA KALAGURI HOUSE MOODUKODI VILLAGE BELTHANGADY TALUK-574294 DAKSHINA KANNADA.
3(c) VIDHYA SWEETHI D/O LATE WINNIE PERIRA AND LATE WILLAM PEREIRA AGED ABOUT 34 YEARS.
3(d) VISHMA SHAINI D/O LATE WINNIE PERIRA AND LATE WILLAM PEREIRA AGED ABOUT 31 YEARS.
3(e) WINSTON STEEVE S/O LATE WINNIE PERIRA AND LATE WILLIAM PEREIRA AGED ABOUT 30 YEARS.
No.3(c) TO 3(e) ARE RESIDING AT VELVIEW ARK HOUSE NITTADE VILLAGE BELTHANGADY TALUK-574294 DAKSHINA KANNADA.
4. BIJU THOMAS S/O K.C. THOMAS AGED ABOUT 38 YEARS R/A KARIYANKAL HOUSE BARNANAGNAM VILLAGE CHUDACHERI POST MICACHIL TALUK KOTTAYAM DISTRICT KERALA-456001.
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… RESPONDENTS This Writ Petition is filed under Article 227 of the Constitution of India, praying to set aside the order dated 8- 1-2019 on I.A.No.40 filed under Order-1, Rule 10 of Code of Civil Procedure, in O.S.No.01/2014, pending on the file of Honorable court of Principal Senior Civil Judge and JMFC, Belthangadey, D.K. Seeking permission to bring the proposed the defendants on records, produced at Annexure- A and etc.
This Writ Petition coming on for preliminary hearing this day, the Court made the following:-
ORDER Heard Sri.Dilraj Jude Rohit Sequeira, learned counsel for the petitioner on the question of admission.
2. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 08.01.2019 passed by the Trial Court, by which application filed by the petitioner who is defendant No.2 in the suit, under Order I Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short) has been rejected.
3. Learned counsel for the petitioner submitted that defendant No.1 had expired and the plaintiff had filed an application under Order XXII Rule 4(4) of the Code which has been allowed by the Trial Court. Thereafter, the petitioner – defendant No.2 filed an application under Order I Rule 10 of the Code by which legal representatives of deceased defendant No.1 were sought to be brought on record. However, the aforesaid application has been rejected by the Trial Court.
4. Learned counsel for the petitioner, after arguing the matter to some extent, seeks leave of this Court to withdraw the writ petition with a liberty to raise a ground that the suit as against the legal representatives of defendant No.1 has abated. Needless to state that if such an application is filed, the Trial Court shall deal with the aforesaid application in accordance with law. It will be open to the petitioner to raise such a contention before the Trial Court that suit as against defendant No.1 has abated.
With the aforesaid liberty, the petition is disposed of.
Sd/- JUDGE RV