IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 9TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 45588 OF 2019 (GM-CPC) BETWEEN:
1. SRI MARIYAPPA SINCE DECEASED BY HIS LEGAL REPRESENTATIVES A) SHOBHA D/O MARIYAPPA AGED ABOUT 44 YEARS, R/O NO.149, 1ST MAIN ROAD, CHAMARAJPET, BENGALURU-18.
2. MANJUNATH S/O MARIYAPPA, AGED ABOUT 40 YEARS, R/O NO.149, IST MAIN ROAD, CHAMARAJPET, BENGALURU-18.
… PETITIONERS (BY SRI. VISHWAJITH SHETTY S, ADVOCATE) AND:
1. SMT MAHADEVAMMA, W/O LATE B PAPANNA, AGED ABOUT 58 YEARS, NO.423, 7TH MAIN ROAD, 5TH CROSS, HAMPINAGAR (R P C LAYOUT), BANGALORE-40.
2. SMT JAYASUDHA, D/O LATE B PAPANNA, AGED ABOUT 58 YEARS, NO.423, 7TH MAIN ROAD, 5TH CROSS, HAMPINAGAR, (R P C LAYOUT), BANGALORE-40.
3. SMT KAVITHA, S/O LATE B PAPANNA, AGED ABOUT 28 YEARS, NO.423, 7TH MAIN ROAD, 5TH CROSS, HAMPINAGAR, (R P C LAYOUT), BANGALORE-40.
4. MR B P ANIL KUMAR S/O LATE B PAPANNA AGED ABOUT 58 YEARS NO.423, 7TH MAIN ROAD 5TH CROSS, HAMPINAGAR (R P C LAYOUT) BANGALORE-40 5. SMT RAJESHWARI, D/O LATE MARIYAPPA, NO.423, 7TH MAIN ROAD, 5TH CROSS, HAMPINAGAR, (R P C LAYOUT), BANGALORE-40.
6. JALAJA, D/O MARIYAPPA, AGED ABOUT 38 YEARS, RESIDENT OF NO. 149, 1ST MAIN ROAD CHAMRAJPET, BANGALURU – 18.
7. SARASWATHI, D/O MARIYAPPA, AGED ABOUT 32 YEARS, RESIDENT OF NO.149, 1ST MAIN ROAD CHAMRAJPET, BANGALURU – 18.
… RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER ANNEXURE-A DATED 07.08.2019 MADE ON I.A.NO.2 AND 11 IN O.S.NO.8034/2008 BY THE COURT OF XXXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioners being the defendants in a partition suit in O.S.No.803/2008 are invoking the writ jurisdiction of this Court for assailing the order dated 07.08.2019, a copy whereof is at Annexure-A whereby the learned XXXVIII Additional City Civil Judge, Bangalore, having allowed the said application filed under Order XXII Rule 4 read with Section 151 of CPC, 1908, has permitted the legal representatives of the deceased party to come on record.
2. Having heard the learned counsel for the petitioners and having perused the petition papers, this Court declines to grant indulgence in the matter agreeing with the reasoning part of the impugned order at its para no.8 which reads as under:
“8. In this case the defendant is none other than the brother-in-law of plaintiff No.1 and uncle of plaintiffs 2 to 5. Here admittedly defendant No.1 died on 14.08.2010. but as per the submission of counsel for the plaintiffs, i.a.no.2 was filed before the office on 12.10.2010, but it is received in the open Court on 19.01.2011. Therefore on this ground only the contention of the counsel for the defendant is that the LR application filed by the plaintiffs is beyond limitation and no application is filed for condonation of delay in filing I.A.No.2 and no application is filed for setting aside the abatement order. But here the application filed by the plaintiffs is within the period of limitation. But inadvertently the order has not been passed on I.A.No.2 and now the counsel pressed for disposal of I.A.No.2 since the legal representatives of deceased defendant are very much necessary as they are also having share in the suit schedule property. When the suit is for partition and separate possession, if any one of the co-owner is died, then his legal representatives ought to be brought on record. So here the defendant is only a sole contesting party and a he died on 14.08.2010, therefore his legal representatives ought to be brought on record. By bringing the legal representatives of deceased defendant, no harm causes to the rights of the plaintiffs…”
In the above circumstances, this writ petition being devoid of merits, is rejected in limine.
Sd/- JUDGE Bsv