IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.4115/2019 (GM – CPC) BETWEEN:
SMT.MUNIYAMMA @ JAYAMMA W/O LATE VENKATESHAPPA, AGED ABOUT 51 YEARS, R/AT NO.460/1, YARANDAHALLI, JIGANI HOBLI, ANEKAL TALUK, BENGALURU RURAL DISTRICT. ... PETITIONER [BY SRI N.R.NAIK, ADV.] AND:
SRI B.S.SHANKAR @ SHANKARAPPA S/O SRI SALLAPURAPPA, AGED ABOUT 83 YEARS, R/AT NO.77, BHOGANAHALLI VILLAGE, PANATHUR POST, VARTHUR HOBLI, BENGALURU-560087 …RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET-ASIDE THE DATED 16.11.2018 ON I.A.NO.15, IN O.S.NO.6831/2011, BY THE HON'BLE 29TH ADDITIONAL CITY CIVIL JUDGE, BENGALURU (CCH-15), REJECTING THE APPLICATION FILED UNDER ORDER 1 RULE 10(2) READ WITH SECTION 151 OF CPC, PRODUCED AT ANNEXURE-F AND ALLOW THE APPLICATION FILED BY THE PETITIONER.
THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner has challenged the order dated 16.11.2018 passed on I.A.No.XV in O.S.No.6831/2011 by the 29th Additional City Civil Judge, Bengaluru (‘Trial Court’ for short), whereby the application – I.A.No.XV filed by the petitioner under Order 1 Rule 10(2) read with Section 151 of CPC has been dismissed.
2. The respondent has filed a suit in O.S.No.6831/2011 against the defendants therein seeking the relief of specific performance of contract and for permanent injunction. In the said suit proceedings I.A.No.XV has been filed by the petitioner to implead her as defendant No.10 which has been rejected. Hence, this writ petition.
3. Learned counsel for the petitioner submits that the petitioner has filed O.S.No.6831/2011 against the defendants in respect of the suit property claiming partition. In such circumstances, she is necessary and proper party for the effective adjudication of the dispute between the parties in the present suit.
4. The Trial Court after considering the said arguments of the petitioner has rejected the application on the ground that the suit for specific performance of a contract cannot be converted into a partition suit. More particularly, when the rights/interest of the petitioner relating to the suit property is the subject matter of O.S.No.2080/2015 pending before the competent Court, the petitioner herein is not a necessary and proper party for the dispute relating to the specific performance of contract. The said reasons of the Trial Court cannot be held to be unsustainable considering the facts and circumstances of the case. No jurisdictional error is found in the order impugned.
Accordingly, the writ petition stands dismissed as devoid of merits.
However, it is needless to observe that the petitioner is at liberty to adjudicate her rights over the suit property in O.S.No.2080/2015 pending before the Civil Court, wherein the partition is claimed with respect to the same suit property.
Sd/- JUDGE PMR