IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.51099/2016 (GM-CPC) & WRIT PETITION NO.56638/2016 (GM-CPC) BETWEEN:
SMT. MANGALAMMA, D/O LATE SIDDAPPA, W/O C. MALLAIAH, AGED ABOUT 50 YEARS, RESIDING AT NO.105, GUDDADAHALLI, HESARAGATTA HOBLI, BANGALORE NORTH TALUK BENGALURU-560 088. …PETITIONER (BY SRI. FAYAZ SAB B.G., ADVOCATE) AND:
1. SRI. G.S.LAKKANNA, SON OF LATE SIDDAPPA, AGED ABOUT 52 YEARS, RESIDING AT GUDDADAHARLLI, HESARAGATTA HOBLI, BANGALORE NORTH TALUK, BENGALURU-560 088.
2. SMT. RATHNAMMA, D/O LATE SIDDAPPA, W/O KANAKARAJU, AGED ABOUT 56 YEARS, RESIDING AT GUDDADAHALLI, HESARGHATTA HOBLI, BANGALORE NORTH TALUK, BENGALURU-560 088.
… RESPONDENTS (BY SRI. K.VIJAYA KUMAR, ADVOCATE) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD:28.10.2015 PASSED BY THE II ADDL. CIVIL JUDGE BANGALORE RURAL DISTRICT, IN ORIGINAL SUIT NO.1315/2009 WHICH IS PRODUCED AND MARKED AS ANNEXURE-A AND PERMIT THE PETITIONER TO TAKE STEPS FOR THE ISSUANCE OF NOTICE TO THE PROPOSED D-1 TO 4 AS PROPOSED D-3 TO 6; AND ETC., THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the plaintiff in a partition suit in O.S.No.1315/2009 is invoking the writ jurisdiction of this Court for assailing the order dated 05.07.2016, a copy whereof is at Annexure-G, whereby, the notice ordered on petitioner’s I.A.No.1 for impleadment has been rendered redundant because the plaintiff did not take steps for furnishing R.P.A.D. covers and paying Process Fee; petitioner has also sought for quashing of the order dated 05.07.2016, a copy whereof is at Annexure-G, whereby the cross examination of DW-1 was taken as nil. After service of notice the respondents having entered appearance through their counsel, resist the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, this Court grants indulgence in the matter because:
(a) the suit is for partition and separate possession of the subject properties some of which are allegedly being sold to the other persons, who are sought to be impleaded by the subject application; the Trial Court had directed notice on the said application, since, arguably, the persons sought to be impleaded are proper parties if not, necessary parties to the adjudication of the suit;
(b) it is true that the petitioner had not taken steps on the said application on which notice was directed to the persons sought to be impeladed; merely because of inadvertence or otherwise, the petitioner fails to take steps for processing the said application, the same could not have been dismissed; courts should not be that stringent; thus, the dismissal of the application by the impugned order appears to be a knee-jerk reaction of the court which is not ideal;
(c) there is a lapse on the part of the petitioner is true, however, the extreme step of rejecting the application for impleadment on that ground having been found unacceptable, the impugned order is liable to be set at naught on cost & conditions, since justice demands the same; and, (d) the reasoning of the Trial Court for denying opportunity of cross-examination in favour of the petitioner cannot be sustained since it works out an enormous injustice to the parties in a partition suit, where courts are expected to be a bit liberal.
In the above circumstances, these writ petitions succeed in part; both the impugned orders are set at naught; the petitioner shall take steps on the impleading application within ten days or on the next date of hearing, whichever is earlier; petitioner shall pay a cost of Rs.1,000/- to each of defendant No.1 & 2, within one month, failing which, the orders now quashed shall stand resurrected.
Ordered accordingly.
Sd/- JUDGE DS