IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 27TH DAY OF MAY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 4618 OF 2014 (GM-CPC) BETWEEN:
1. SANNANAIKA AGED ABOUT 68 YEARS, S/O LATE ERANAIKA, (SENIOR CITIZEN BENEFIT NOT CLAIMED) 2. PUTTANAIKA AGED ABOUT 65 YEARS, S/O LATE ERANAIKA, (SENIOR CITIZEN BENEFIT NOT CLAIMED) 3. RAMANAIKA AGED ABOUT 53 YEARS, S/O LATE ERANAIKA, PETITIONERS ALL ARE RESIDING AT RAMENAHALLI VILLAGE, ANTHARASANTHE HOBLI, H.D.KOTE TALUK, MYSORE DISTRICT-571 114.
... PETITIONERS (BY SRI. P NATARAJU, ADVOCATE) AND:
1. SMT. JAVARAMMA AGED ABOUT 40 YEARS, D/O KEMPANAIKA, W/O CHIKKANAIKA, KEREYUR VILLAGE, H.D.KOTE TALUK, MYSORE DISTRICT-571 114.
2. SMT RATHNAMMA AGED ABOUT 37 YEARS, D/O KEMPANAIKA, W/O MAHADEVA, HOSAKERESUNDA VILLAGE, H.D.KOTE TALUK, MYSORE DISTRICT-571 114.
3. SMT.KEMPAMMA AGED ABOUT 33 YEARS, D/O KEMPANAIKA, W/O CHANNANAIKA, ITNA VILLAGE, H.D.KOTE TALUK, MYSORE DISTRICT-571 114 4. SURESH AGED ABOUT 29 YEARS, S/O KEMPANAIKA, RAMANAHALLI VILLAGE, H.D.KOTE TALUK, MYSORE DISTRICT-571 114 5. KEMPANAIKA AGED ABOUT 70 YEARS, S/O LATE ERANAIKA, ANTHARASSANTHE VILLAGE, H.D.KOTE TALUK, MYSORE DISTRICT-571 114. SINCE DECEASED R1 TO 4 & R6 ARE LRS OF R5.
6. SMT.MARIDEVAMMA AGED ABOUT 60 YEARS, W/O KEMPANAIKA, ANTHARASANTHE VILLAGE, H.D.KOTE TALUK, MYSORE DISTRICT-571 114.
(BY SRI. VISHWANATH A, ADVOCATE FOR ... RESPONDENTS SRI. B S NAGARAJ, ADVOCATE FOR R1 TO 4 VIDE ORDER DATED 05.02.2019, R1 TO 4 ARE LRS OF R5; R6 SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE LERANED CIVIL JUDGE (JR.DN) AND JMFC AT H D KOTE, IN O.S.NO.98/2019 ON I.A.NO.5 DATED 17.12.2013 VIDE ANNEX-F AND MAY BE PLEASED TO ALLOW THE APPLICATION ON ITS FILE AS PRAYED FOR.
THIS PETITION COMING ON FOR PRELIMINMARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioners whose application for impleadment in a suit in O.S.No.98/2009 for a decree of partition and separate possession of the petition properties are before this Court laying a challenge to the rejection of their application for impleadment as defendants to the said suit, vide trial court order dated 17.12.2013. After service of notice, respondents have entered appearance through their counsel who opposes the petition.
2. Respondents 1 to 4 herein have filed a Civil Suit in O.S.No.98/2009 seeking a decree for partition and separate possession of the property. The trial having been completed, the suit is at an advanced stage of arguments now. The petitioners’ application in I.A.5 filed under Order I Rule 10 of CPC, 1908 seeking their impleadment has been rejected by the Court below inter alia on the ground that the they have not produced any material to show their interest in the suit property and that they have not offered any explanation for not producing the Grant Order whereunder the suit land has been allegedly granted to the eldest member of the family.
3. Learned counsel for the petitioners submits that the impugned order is liable to be set at naught inasmuch as, a specific plea is taken up by the petitioners as to the petition land being a granted land and the said plea has not been much disputed by the other side; the petitioners have been in possession of certain properties which are subject matter of suit, under the earlier partition and that they being illiterate did not have any knowledge of the suit proceedings, more particularly when there was no change of revenue entries. So arguing the learned counsel seeks allowing of the writ petition by reversing the impugned order.
4. Per contra, the learned counsel for the respondent- plaintiffs vehemently contends that though a decree for partition of land approximately 4 acres is sought for, the trial Court would look into the entitlement of the plaintiffs, more particularly the material evidencing the partition which prima facie speaks of allotment of a share of 2 acres to the father of the plaintiffs and therefore the petitioners need not have any apprehension as to they being put to prejudice merely by the plaint averments; the petitioners are not entitled to seek impleadment belatedly when the suit proceedings have advanced to the stage of arguments and the recording of arguments have been completed much before.
5. I have heard the learned counsel for the petitioners and the learned counsel for the contesting respondents. I have perused the petition papers.
6. The suit is of the year 2009 and it is one for a decree of partition and separate possession of the property approximately admeasuring 4 acres when prima facie the Memorandum of Partition pressed into service by the defendants’ side speaks of 2 acres given to the share of plaintiffs’ father. The suit has advanced to the stage of almost termination, ordinarily is not a ground per se for denying impleadment inasmuch as assertedly the petitioners are illiterates and the entries in the revenue records have not been changed. The petitioners have specifically taken up the plea that they have vested interest in the suit land and that they are in the possession thereof. Although this is a matter to be tried, it is not a strict legal requirement that the litigants should seeking to get impleaded as parties eo nominee should necessarily produce all the material along with their application for impleadment. Ideally speaking they should produce, but non production per se of the said material cannot constitute a sufficient ground for rejecting their claim for impleadment.
7. The impleadment of the petitioners as defendants to the suit proceedings would not in any way prejudice the case of the respondent-plaintiffs or others conversely their impleadment would facilitate due adjudication of the lis once for all in respect of the subject property. The Court would look into the memorandum of partition produced by the defendants wherein only 2 acres are granted to the father of the respondent-plaintiffs is a poor solace to the person who apprehends legal injury in the subject proceedings and that too behind his back.
8. In the above circumstances, this writ petition succeeds; a Writ of Certiorari issues quashing the impugned order dated 17.12.2013 made by the Court below on the impleading application in the pending O.S.No.98/2009; the trial Court shall allow the said application and permit the petitioners to be impleaded as respective defendants in accordance with law.
9. However, since the petitioners have approached the Court with delay, justice of the case requires imposition of a cost of Rs.6,000/- payable to the respondent-plaintiffs, to be apportioned by and between them in a sum of Rs.1,500/- each. The cost shall be paid by the petitioners in the Court below on the very next date of hearing, failing which the order now quashed stands revived.
Since the suit is nearly 10 year old, the learned Trial Judge is requested to expedite the proceedings and dispose of the same within an outer limit of nine months excluding the adjournments taken by the respondent-plaintiffs.
Sd/- JUDGE Snb/