IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY 2019 BEFORE THE HON’BLE MR.JUSTICE KRISHNA S. DIXIT WRIT PETITION NO.10008/2019 (GM-CPC) Between:
Sri. G.Murthy, Aged 50 years, Son of Late. Govinda Swamy, Residing at No.212, II Block, Sri Rama Road, Thyagaraja Nagar, Bengaluru-560 028. ...Petitioner (By Sri. K.S.Sreekantha, Advocate) And:
1. Sri. K.Annayappa, Son of Late Govinda Swamy, Aged about 79 years, Residing in a portion of No.212, II Block, Sri. Rama Road, Thyagaraja Nagar, Bengaluru-560 028.
Late K.Janardhana Son of Late Krishnappa Naiker, Since deceased by LRs 2. Sri. J.Manjunatha, Son of Late K.Janardhana, Aged about 43 years.
3. Smt. Satyabhama, Wife of Late K.Janardhana, Aged about 71 years.
4. Smt. J.Rekha, Daughter of Late K.Janardhana, Aged about 48 years.
5. Smt. J.Jayashree, Daughter of Late K.Janardhana, Aged about 45 years.
(Respondents No.2 to 5 were Residing at No.73, 4th Cross, Nagappa Block, L.N.Puram, Bengaluru-560 021).
6. Smt. Muthamma, Wife of Late K.Govinda Swamy, Aged about 84 years, Residing at in a portion of No.212, III Block, Sri Rama Road, Thyagaraja Nagar, Bengaluru-560 028.
Late K.Dhanaraj, S/o. Late Krishnappa Naiker, Since deceased by his LRs., 7. Sri. D.Tulasiram, Son of Late D.Dhanaraj, Aged now 53 years, Residing in a portion of 212, II Block, Sri Rama Road, Thyagaraja Nagar, Bengaluru-560 028.
8. Smt. Lakashami, Wife of Sri. Vijandran, Daughter of Late K.Dhanaraj, Aged about 52 years, No.7, Anna Street, Madli Nagar, Katpadi Post-632 007, Vellore District.
9. Smt. Chitra, Wife of Manogaram, Daughter of Late K.Dhanaraj, Aged about 49 years, No.8/1, Anna Street, Madli Nagar, Katpadi Post-632 007, Vellore District.
10. Smt. Jaya Geetha, Wife of Sri. Raja Ram, Daughter of Late K.Dhanaraj, Aged about 43 years, Door No.21/1, Gagamma Street, Vandragal, Katpadi Post-632 007, Vellore District. … Respondents (By Sri. Vijayakumar.S.C, Advocate for C/R1 & 2 V/o dated 11.07.2019; Notice to R3 to 10 dispensed with) This Writ Petition is filed under Article 226 of the Constitution of India praying to set aside the impugned order dated:25.01.2019 passed in FDP No.127/2014 Hon’ble Court of XX Additional City Civil Judge at CCH-32 Bengaluru City on the application filed by the petition on I.A.No.III under Order 1 Rule 10 of CPC.
This Writ Petition coming on for Preliminary Hearing, this day, the Court made the following:-
ORDER Petitioner an intending party in FDP No.127/2014 is invoking the writ jurisdiction of this Court for assailing the order dated 25.01.2019, a copy whereof is at Annexure-H whereby the learned XXth Additional City Civil Judge, Bengaluru, has dismissed his application in IA No.3 filed under Order I Rule 10 of CPC, 1908 seeking his impleadment to the said proceedings. The contesting respondent No.1 & 2 having entered Caveat through their counsel, oppose the writ petition, notice to others having been dispensed with.
2. Learned counsel for the petitioner argues that FDP is continuation of the suit proceedings; some of the parties to the Preliminary Decree passed in O.S.No.6879/1995 having conveyed their interest in the suit property pendente lite in favour of the petitioner, the question of equitable adjustment of shares would arise in the FDP and therefore, the Court below ought to have allowed the impleading application since petitioner is a proper & necessary party.
3. The learned counsel for the Caveators opposes the writ petition and makes submission in justification of the impugned order contending that petitioner is not proper & necessary party his array to the FDP would not serve any purpose except expanding the scope of the lis; even otherwise also the subject lease dated 06.01.2014 would not enure to his benefit. So contending, he seeks dismissal of the writ petition.
4. Having heard the learned counsel for the parties and having read the petition papers, this Court is of the considered opinion that petitioner needs to be impleaded as a party to the FDP because:
i) admittedly, there is some document purporting to be a release deed dated 06.01.2014; apparently, some parties to the suit in O.S.No.6879/1995 appear to have executed the same; in a partition suit, in the course of final decree proceedings, the interest of the transferee pendente lite can be protected without affecting the interest of non-transferors; thus, to that extent the petitioner happens to be a proper party to the proceedings if not a necessary party vide Apex Court decision in the case of AMIT KUMAR SHAW VS.
JUBAIDA KHATOON, AIR 2005 SC 2209 (2213); and ii) the impleadment of the petitioner to the proceedings in the Court below as a respondent even otherwise also would not cause any prejudice to the parties to the suit that has culminated into a preliminary decree which is now put in FDP; justice of the case also justifies impleadment of the petitioner so that whatever interest he claims to derive under the subject Release Deed can be treated in the FDP without prejudice to the interest of non-parties to the said release.
In the above circumstances, this writ Petition is allowed in part; the petitioner’s application filed under Order VI Rule 17 having been favoured, is permitted to be impleaded as a respondent to the FDP; petitioner’s interest is confined to that of Smt. Muthamma under the subject Release Deed.
It is needless to mention that the interest of the petitioner again is subject to the outcome of RFA No.1618/2016 filed by respondent – Muthamma.
No costs.
Sd/- JUDGE DS/-