IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 12TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 30245 OF 2017 (GM-CPC) BETWEEN:
1. SMT. RATHNAMMA, W/O KRISHNAPPA, D/O LATE SMT RAMANJINAMMA, AGED ABOUT 35 YEARS, RESIDING AT TAVAREKERE VILLAGE, NEAR POST OFFICE, HOSKOTE TALUK, BANGALORE – 562 122.
2. SMT. LAKSHMI, W/O MOHAN KUMAR, D/O LATE SMT RAMANJINAMMA, AGED ABOUT 32 YEARS, RESIDING AT ADARSHNAGAR, NEAR REDDY CONVENTIONAL HALL, MALUR TALUK, KOLAR DISTRICT – 563 130.
(BY SMT. S SUMATHI, FOR SRI. SURYA PRAKASHA M, ADVOCATES) AND:
MUNISWAMAPPA, SINCE DEAD BY LR 1. M LAKSHMAIAH, AGED ABOUT 55 YEARS, RESIDING AT PATTANDUR AGRAHARA, K R PURAM HOBLI, BANGALORE EAST TALUK – 560 016.
2. LAKSHMAIAH S/O MUNISWAMY, MAJOR, R/AT PATTANDUR AGRAHARA, K R PURAM HOBLI, ... PETITIONERS BANGALORE – 560 066.
(BY SRI. PRAKASHA M, ADVOCATE FOR R1;
... RESPONDENTS SRI. K S VENKATARAMANA, ADVOCATE FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 17.04.2017 PASSED BY THE I ADDL. CIVIL JUDGE BENGALURU RURAL DISTRICT, BENGALURU IN O.S.NO.32/1998 ON I.A.NO.12 UNDER ORDER I RULE 10(2) OF CPC VIDE ANNEX-E.
THIS PETITION COMING ON FOR PRELIMINMARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioners claiming to be the L.Rs. of the original plaintiffs in a declaration suit in O.S.No.32/1998 are invoking the writ jurisdiction of this Court for assailing the order dated 17.04.2017, a copy whereof is at Annexure-E, whereby the learned I Addl. Civil Judge, Bengaluru Rural District, Bengaluru having rejected their application in I.A.No.12 filed under Order 1 Rule 10(2) of CPC has refused to admit them to the array of parties in the suit. After service of notice, both 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 is of the considered opinion that the impugned order cannot be faltered inasmuch as the Court below at para 7 therein has observed as under and this Court concurs with the said reasoning:
“7. POINT NO.1:- It is the case of the applicants that they are the legal heirs of Smt. Ramanjanamma and the plaintiff field the present suit for declaration and injunction. Even though the Ramanjanamma died on 02.01.2008, the applicants have not made an application for impleading them as legal heirs of late Ramanjanamma and there is a delay in filing the present application. On perusal of the application along with affidavit it reveals that since the suit being for declaration and injunction the question of asking share in the suit schedule property and coming on record as plaintiff No.2 and 3 does not arise. If the impleading applicants have nay right in the suit schedule property they are at liberty to file suit for partition and they can not be impleaded in this suit as the suit is for declaration and injunction. Hence, I answer Point No.1 in Negative.”
In the above circumstances, this writ petition is disposed of declining indulgence. However, it is open to the petitioners to frame an appropriate suit for protecting their interest in the subject property in accordance with law. All contentions of the parties are kept open.
Sd/- JUDGE Snb/