IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 19TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 61342 OF 2016 (GM-CPC) BETWEEN:
NORA MENEZES W/O GILBERT MENEZES, AGED ABOUT 56 YEARS, RESIDING AT NO.103/2, 3RD B CROSS, DOCTORS LAYOUT, KASTURI NAGAR, BANGALORE-560043 (BY SRI. B K SAMPATH KUMAR, ADVOCATE) AND:
1. SMT. P. NANJAMMA D/O LATE KURLAPPA, W/O MUNIRAYAPPA, AGED ABOUT 60 YEARS, 2. M.MANJU S/O MUNIRAYAPPA, AGED ABOUT 42 YEARS, 3. M. RAMESH S/O MUNIRAYAPPA, AGED ABOUT 39 YEARS, 4. M. VENUGOPALA S/O MUNIRAYAPPA, AGED ABOUT 37 YEARS, 5. M ANITHA D/O MUNIRAYAPPA, AGED ABOUT 35 YEARS, ALL ARE RESIDING AT BEGUR VILLAGE, SULIBELE HOBLI, HOSKOTE TALUK-562129 BANGALORE RURAL DISTRICT … PETITIONER 6. PARVATHAMMA D/O LATE P.KURLAPPA, W/O LATE NARAYANAPPA, AGED ABOUT 55 YEARS, 7. NAGARATHANAMMA D/O LATE NARAYANAPPA, AGED ABOUT 30 YEARS, 8. KOMALAMMA D/O LATE NARAYANAPPA, AGED ABOUT 28 YEARS, RESPONDENTS 6 TO 8 ARE RESIDING AT THALAGAVARE, KALVARA HOBLI, CHINTHAMANI TALUK KOLAR DISTRICT-563125 … RESPONDENTS (BY SRI. P M SIDDAMALLAPPA, ADVOCATE FOR R1 TO 8) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 28.10.2016 AT ANNEX-A PASSED BY THE CITY CIVIL JUDGE BANGALORE IN O.S.NO.7568/2006 AND DIRECT THE TRIAL COURT TO DISPOSE THE SUIT BEARING O.S.NO. 7568/2006 AS EXPEDITIOUSLY AS POSSIBLE.
THIS PETITION COMING ON FOR PRELIMINMARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the defendant no.4 in the suit for declaration & possession filed by the contesting respondents herein in O.S.No.7568/2006 is invoking writ jurisdiction of this Court for assailing the order dated 28.10.2016, a copy whereof is at Annexure-A, whereby the learned VI Addl. City Civil Judge, Bengaluru having entertained the plaintiffs application in I.A. No.7 has directed notice to the persons sought to be impleaded as defendants thereby. The respondents after service of notice having entered appearance through their counsel, resist the writ petition.
2. The learned counsel for the petitioner attacks the impugned order stating that the suit is of the year 2006; it is founded on fraud, duplicity and collusion; the trial of the suit having taken place, the case was posted for arguments; the subject application in I.A.No.7 has been belatedly filed on 02.09.2016; it is designed to protract the suit proceedings to the great prejudice of these petitioners; without adverting to all these facts urged by the petitioner in his objections to I.A., the trial Court mindlessly has directed notice and therefore there is error apparent on the face of the record warranting indulgence of this Court.
3. Learned counsel for the petitioner also draws attention of the Court to the observations and findings made by Court in the earlier O.S.No.1150/2006 which have been reproduced in para 13 of his Written Statement, a copy whereof is at Annexure-E; this judgment and decree dismissing the same having attained finality prima facie shows that the respondent-plaintiff did not have any litigable interest in the property at all and that the persons sought to be impleaded now, have nothing to do with the suit; even this has not been adverted to by the court below while issuing notice on the impleading applicants constitutes yet another error apparent on the face of the record. Lastly, Mr.Shaik Ali Sab who is sought to be impleaded, is dead and gone long ago and despite urgement.
4. Learned counsel appearing for the contesting respondents per contra submits in justification of the impugned order contending that the order issuing notice on the impleading application is not amenable to challenge in the writ jurisdiction; the plaintiffs being dominus litis are entitled to add any person of their choice to the array of parties; the Court below would take decision on the said application after hearing the proposed defendants and also the petitioner herein; no fault can be laid at the threshold of the trial court warranting indulgence of this Court. So contending, he seeks dismissal of the writ petition.
5. I have heard the learned counsel for the petitioner and the learned counsel for the respondents. I have perused the petition papers.
6. The respondent happens to be the plaintiffs in the suit in O.S.7568/2006; the said suit is for declaration & possession of the subject property; the issues having been framed, trial has been accomplished; at this stage the respondent plaintiffs have moved this application on 02.09.2016 seeking impleadment of one Smt.A.Lakshmamma, and another Sri Shaik Ali Sab who is dead and gone; so far as dead person is concerned even the question of issuing notice does not arise. The said application could not have been entertained after a decade of filing of the suit; the application even otherwise also does not merit consideration because it lacks the material particulars as to why and how these persons are the necessary or proper parties to the suit in terms of the parameters prescribed by the Apex Court in the case of RAZIA BEGUM VS. SAHEBADI ANWAR BEGUM AND OTHERS AIR 1958 SC 886.
7. The above apart, in O.S.No.1150/2006 filed by Smt.M.V.Nagarathna wherein the petitioner herein was one of the defendants, the Court after full-fledged trial dismissed the suit with the following observation:
“In this case, even though the plaintiff claims that her vendor Smt. Baby Balakrishana had purchased portion of the suit schedule property from the legal representative of Koorlappa, the documentary evidence produced by the defendants clearly shows that Koorlappa had not retained any land in Sy. No. 522 of Kallakere Village. The plaintiff has produced Exhibit P-2 to show that Koorlappa had sold 1 acre 17 guntas of land in Sy. No. 522 to Smt. A. Lakshmamma under Sale Deed dated 12.02.1970. This fact is not disputed by the defendants. The defendants in their pleadings have contended that subsequent to the sale of 1 acre 18 guntas of land by Koorlappa to Smt. A. Lakshmamma, the said A. Lakshmamma sold back land measuring 18 guntas to Koorlappa under sale deed dated 19.04.1974. The defendants have produced certified copies of sale deed executed by A. Lakshmamma in favour of Koorlappa and the document is marked as Ex.D2 and the document shows that Koorlappa had purchased 18 guntas of land under a sale deed dated 19.04.1974 . The defendants have also contended that subsequent to purchase of 18 guntas of land at Kallikere village under sale deed dated 19.04.1974. Koorlappa again sold that land to Mr. Sheik Ali Sab under a registered sale deed dated 09.01.1975. The defendants have produced certified copy of the sale deed dated 19.04.1975 and the same is marked as Ex.D4. It is significant to note that the plaintiff has suppressed the fact that Koorlappa had sold 18 guntas of land to Mr. Sheik Ali Sab through sale deed dated 09.01.1975 after he repurchased that 18 guntas of land from Smt. A Lakshmamma. Therefore, the documentary evidence produced by the defendants clearly shows that Koorlappa was not left with any land in Survey No.522 of Kallikere village. In spit of that the documentary evidence produced by the plaintiff discloses that plaintiff’s vendor had purchased land measuring 39 guntas form the legal representatives of Koorlappa under the sale deed dated 02.02.2005. As per Ex.P.4 since koorlappa had not retained any land in survey no.522 of kallikere village, his legal representative could not have sold land in that survey number to the plaintiff’s vendor. Hence, the claim of plaintiff that her vendor had purchased land from the legal representatives of Koorlappa and subsequently she purchased that land from Smt. Baby Balakrishnan and she was put in possession of that portion of land cannot be believed and accepted.”
8. The plaintiffs are claiming their interest under one Mr.Koorlappa about whom the above observations of the court in the earlier suit relate; the said observations also mention about the said Shaik Ali Sab and
specifically contended at para 13 of the Written Statement itself.
In the above circumstances, this writ petition succeeds; the impugned order is set at naught; the court to hear and dispose of the suit expeditiously.
No costs.
Sd/- JUDGE Snb/Bsv