IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 10th DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.3301 OF 2017 (GM-CPC) BETWEEN:
SRI KRISHNAPPA, S/O LATE KEMPAIAH AGED ABOUT 73 YEARS, RESIDING AT THIPPENHALLI VILLAGE, KASABA HOBLI, CHIKKABALLAPURA-562101 ... PETITIONER (BY SRI. B.N SURESH BABU, ADVOCATE) AND:
1. SRI NARAYANASWAMY, S/O LATE MUNIYAPPA, AGED ABOTU 49 YEARS, 2. SRI NAGARAJ, S/O LATE NAGAPPA AGED ABOUT 42 YEARS, 3. SRI CHIKKAMUNIYAPPA S/O LATE NARASIMHAPPA AGED ABOUT 71 YEARS, 4. SRI NARAYANAPPA S/O LATE NARASIMHAPPA AGED ABOUT 60 YEARS, 5. SRI CHIKKANAGAPPA S/O LATE NARASIMHAPPA AGED ABOUT 55 YEARS, 6. SRI MANJUNATH S/O LATE VENKATESHAPPA AGED ABOUT 24 YEARS, ALL ARE RESIDING AT THIPPENAHALLI VILLAGE, KASABA HOBLI, CHIKKABALLAPURA TALUK 562101 ... RESPONDENTS (BY SRI. H DEVENDRAPPA, ADVOCATE FOR R2 TO 6 ) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD:11.01.2017 O.S.NO.315/2012 PASSED BY THE LEARNED II ADDITIONAL CIVIL JUDGE AND JMFC AT CHICKBALLAPUR DISMISSING THE IA FILED UNDER SECTIN 151 OF THE CODE OF CIVIL PROCEDURE PRODUCED AT ANNXURE-G THIS PETITION COMING ON FOR PRELIMINMARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner being the defendant in a declaration suit in O.S.No.315/2012 is invoking the writ jurisdiction of this Court for assailing the order dated 11.01.2017, a copy whereof is at Annexure-G, whereby the learned II Addl. Civil Judge, Chickballapur has dismissed his application filed u/s.151 of CPC, 1908 and thereby has refused to club the said suit with the petitioners suit for specific performance in O.S.No.269/2015. After service of notice the respondents have entered appearance through their counsel and resist the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, this Court grants indulgence in the matter because:
(a) the suit of the respondent in O.S.No.315/2012 is for declaration of title in respect of property which is the subject matter of agreement to sale dated 30.08.1985 on which petitioner’s suit for specific performance in O.S.No.269/2015 is founded;
(b) the findings that are likely to be entered in respondents suit for declaration in O.S.No.315/2012 are likely to cast their shadow or light on the findings to be recorded in petitioner’s specific performance suit in respect of the very same subject property, parties too being same in both the suits ; and, (c) the claim of the petitioner for clubbing of these suit proceedings is by and large covered by the decision of the Apex Court in the case of CHITIVALASA JUTE MILLS v. JAYPEE REWA CEMENT, AIR 2004 SC 1687; the clubbing of the proceedings would facilitate due and final adjudication of both the suits to the advantage of both the sides and to the dis-advantage of none.
In the above circumstances, this writ petition succeeds; the impugned order is set at naught; the petitioner’s application filed u/s.151 of CPC having favoured, both the suits, are ordered to be clubbed together for the purpose of common trial and disposal in accordance with law.
All contentions of the parties are kept open. No costs.
Sd/- JUDGE Snb/