IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.54036/2018 (GM-CPC) BETWEEN MANU MARK IMAM S/O LATE HAMZA J. IMAM, AGED ABOUT 55 YEARS, R/O DODDA BANGALE, DAVANAGERE ROAD, JAGALUR, DAVANAGERE DISTRICT-577528. ... PETITIONER (BY SRI YOGESH V.KATEMATH, ADV. FOR SRI VIRUPAKSHAIAH P H, ADV.) AND 1. NASIRA GHORI, W/O LATE HAJIMUDDIN MAHAMMED GHORI, D/O M N NAGANOOR, AGED ABOUT 60 YEARS, R/O APARTMENT NO.11051, PRESTIGE WELLINGTON PARK, GANGAMMA CIRCLE, JALAHALLI, BANGALORE-560013.
2. GHOUSE MANSOOR NAGANOOR, S/O LATE M.N.NAGANOOR, AGED ABOUT 52 YEARS, 3. GHOUSE MOHIDDIN, S/O LATE M.N.NAGANOOR, AGED ABOUT 50 YEARS, BOTH ARE RESIDING AT NO.39, ABSHOT LAYOUT, SANKEY ROAD CROSS, SRI T CHOWDAIAH ROAD, BANGALORE-560052. ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD 05.11.2018 IN O.S.NO.58/2018 VIDE ANNX-D PASSED BY THE CIVIL JUDGE AND JMFC, JAGALUR ON I.A.NO.1 BY ALLOWING THE APPLICATION FILED BY THE PETITIOENR UNDER ORDER 1 RULE 10(2) OF CPC VIDE ANNX-B.
THIS PETITION COMING ON FOR ‘PRELIMINARY HEARING’ THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The application filed by the petitioner under Order 1 Rule 10(2) of Code of Civil Procedure impleadment came to be rejected by the order dated 05.11.2018 passed on I.A.No.1 made in O.S.No.58/2018 on the file of the Civil Judge and JMFC at Jagalur.
2. The respondent No.1 who is the plaintiff before the trial Court filed the suit for declaration of his title and permanent injunction against respondent Nos.2 and 3/defendant Nos.1 and 2 in respect of the suit property more particularly described in the schedule i.e., house property and open site bearing K.No.85 measuring 112 x 28 feet, situated at Hanumanthapura Gollarahatti village, Jagalur taluk contending that the plaintiff is the owner in possession and enjoyment of the suit property and the defendants have no manner of title to interfere with the same. The defendants have not filed any written statement.
3. During the pendency of the suit, the present petitioner/impleading applicant filed an application under Order 1 Rule 10(2) of the Code of Civil Procedure to implead him as defendant No.3 as he has got right title over the vacant land in the suit property and contending that he is the owner of the land bearing Sy.No.388/P1, later rephoded as 388/2, measuring 1 acre 16 guntas by excluding the kharab of 12 guntas of Jagalur Taluk and previously the said land along with other properties were allotted to the share of his father late Hamza J.Imam and also contended that he is the necessary and proper party to the present suit. The said application was resisted by the plaintiff by filing objections. The trial Court considering the application and objections, by the impugned order dated 05.11.2018, rejected the application. Hence, the present writ petition is filed.
4. I have heard Sri.Yogesh V.Katemath, learned counsel for the petitioner.
5. Learned counsel for the petitioner contended that the impugned order passed by the trial Court rejecting the application filed by the petitioner under Order 1 Rule 10 (2) of CPC is erroneous and contrary to the material on record. He would further contend that the trial Court has committed serious error in not considering the documents relied upon by the petitioner with regard to his right over the suit schedule property. He further contended that respondent No.1 in collusion with respondent Nos.2 and 3 filed O.S.No.58/2018 for declaration and permanent injunction in respect of the property in question. He would further contended that the present petitioner has filed O.S.No.18/2005 for permanent injunction in respect of land bearing Sy.No.388/P1-P1 measuring 1 acre 16 guntas and Sy.No.390/P2 measuring 3 acres 25 guntas and house property bearing Khatha No.91, property bearing No.84/E, situated at Hanumanthapura Village Panchayath, Jagalur Town. The said suit came to be decreed by a judgment and decree dated 26.08.2006. The property in question is a part and parcel of the earlier property in which suit came to be filed and got decreed. Therefore, he sought to allow the writ petition.
6. Having heard the learned counsel for the petitioner, it is not in dispute that respondent No.1 filed a suit for declaration in O.S.No.58/2018 to declare title in his favour and for permanent injunction as already stated supra. The defendants have not filed written statement. On the application filed by the present defendant, the trial Court considering the entire material on record, recorded a finding that the proposed defendant has produced ten documents and they are not concern to the suit schedule property. The documents are belonged to the other properties. The proposed defendant produced judgment and decree in O.S.No.30/2009 and O.S.No.18/2005 and they are not concerned to suit schedule property. The suit schedule property is a vacant site. There is no property situated at the boundary of the plaint schedule property. The contention of the proposed defendant is that his property bearing Sy.No.388/2 is not the suit schedule property. The alleged consent deed will is whether proper or not it can be considered at the time of the judgment.
7. The material documents clearly indicates that the proposed defendant is no way concerned with the suit schedule property. Absolutely no material produced before the Court. He has no right, title and interest over the suit schedule property. In the absence of any interest in the suit schedule property, in the suit for declaration filed for permanent injunction against the other defendants, the proposed respondent is not a necessary and proper party to resolve the dispute between the parties and for effective adjudication of the suit. Hence, the trial Court rejected the application filed by the proposed respondent. The order passed by the trial Court is just and proper. The petitioner has not made out any ground to interfere with the impugned order passed by the trial Court in exercising power under Article 227 of the Constitution of India.
Accordingly, the petition is dismissed.
It is needless to observe that since application filed for impleading came to be rejected by the trial court, any decree to be passed in the present suit between the plaintiff and the defendants is not binding on the proposed respondent, if he has got any right in respect of the property in question, he is at liberty to protect the same in accordance with law.
VM CT:HR Sd/- JUDGE