IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.34379 OF 2018 (GM-CPC) BETWEEN:
SRI.GANESH PRABHU, S/O BHASKAR M PRABHU, AGED ABOUT 38 YEARS, RESIDING AT FLAT NO.301, NO.990/1, AKHIL RESIDENCY, THIMMAREDDY COLONY, NEAR MOTHER MARY SCHOOL, NEW THIPPASANDRA, BANGALORE – 560 037.
(BY SRI.N.VINAYAK KAMATH, ADV.,) AND:
SMT. INDULEKHA, W/O MR.RAJESH T., AGED ABOUT 42 YEARS, RESIDING AT NO.233, 7TH CROSS, ASHWATH NAGAR, MARATHALLI, BANGALORE – 560 037.
(BY SRI.RAMACHANDRA R NAIK, ADV.,) ... PETITIONER …RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 01.03.2018 PASSED BY THE HON’BLE XXIX ADDL. CITY CIVIL JUDGE [CCH30] AT BANGALORE IN O.S.NO.8881/2015, IN DISMISSING THE APPLICATION FILED UNDER ORDER 1 RULE 10[2] OF CODE OF CIVIL PROCEDURE FILED BY THE PETITIONER VIDE ANNEXURE–A AND ALL FURTHER PROCEEDINGS THERETO AND ETC., THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The defendant has filed this present petition against the order dated 01.03.2018 on I.A.No.VI in O.S.No.8881/2018 for dismissing his application filed under Order 1, Rule 10(2) of CPC to implead one Guruporasad Shetti as 2nd defendant.
2. The plaintiff/respondent filed a suit for permanent injunction against the defendant contending that the plaintiff is in possession and enjoyment of the schedule premises as a tenant. After the Lease Agreement, the plaintiff has sub-let the first floor of the suit schedule property to one Guruprasad Shetty.
The defendant filed written statement along with counter claim contending that he is the owner of the suit schedule property and he had executed a lease deed in favour of plaintiff for 11 months with monthly rental of Rs.10,000/-. According to him, there is no proviso for sub-letting in the rental agreement. Hence, he sought for dismissal of the suit. He filed I.A.No.6 to implead Guruprasad Shetti as 2nd defendant, which came to be dismissed by the Court below holding that the defendant cannot array any proposed person since the suit is filed the plaintiff for permanent injunction against the defendant. Aggrieved by the impugned order, the present writ petition is filed.
3. Sri N.Vinayak Kamath, learned counsel for the petitioner/defendant contended that the Trial Court has erroneously rejected the application for impleading Guruprasad Shetty as 2nd defendant though the respondent/plaintiff has herself admitted in para-6 of the plaint that plaintiff has sub-let the first floor of her suit schedule property to one Mr.Guruprasad Shetty. Hence, the proposed defendant becomes proper and necessary party to the proceedings and sought for quashing of order of the trial Court passed on I.A.No.VI for impleadment by allowing the writ petition.
4. Per contra, Sri Ramachandra R. Naik, learned counsel for the respondent/plaintiff contended that in the suit filed by the plaintiff for injunction, the proposed defendant is not a necessary party to resolve the dispute between the parties. Therefore, he sought for dimissal of the petition.
5. Having heard learned counsel for the parties, it is not in dispute that the plaintiff filed suit for permanent injunction against the defendant contending that she is in possession and enjoyment of the suit schedule property as a tenant under the defendant as per the lease agreement entered into between the parties. It is also not in dispute that the plaintiff at para-6 of the plaint has admitted that she has sub-let the first floor of the suit schedule property to one Guruprasad Shetty. The defendant has filed written statement contending that the suit is not maintainable and also filed counter claim that he is the onwer of the suit schedule property in question. When the defendant filed an application (I.A.No.VI) for impleading Guruprasad Shetty as second defendant, the trial Court has rejected his application mainly on the ground that suit is filed by the plaintiff for injunction against the defendant alleging interference and illegal dispossession by the defendant. Hence, defendant cannot array any person as 2nd defendant. The Trial Court has failed to notice that though plaintiff filed suit for permanent injunction, the defendant also filed written statement along with counter claim, claiming his ownership, the proposed defendant is necessary and proper party to resolve the dispute between the parties.
6. In view of the above, the writ petition is allowed. The impugned order passed by the Trial Court on I.A.No.VI in O.S.No.88881/2015 dated 01.03.2018 is hereby quashed. The application for impleadment of Guruprasad Shetty as proposed defenant is allowed.
Ordered accordingly.
In view of disposal of main matter, I.A.No.1/19 filed for stay does not survive for consideration.
Sd/- JUDGE TL