IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.47783/2018 (GM-CPC) BETWEEN:
1. SRI.S.A.GOVINDARAJU, S/O LATE ARASEGOWDA AGED ABOUT 72 YEARS 2. SRI S A SRINIVASAN S/O LATE ARASEGOWDA AGED ABOUT 70 YEARS 3. S K ARUNKUMAR S/O LATE KRISHNAMURTHY PATIL AGED ABOUT 36 YEARS ALL ARE RESIDENT OF CHIKKASAGGERA VILLAGE, HOLAVANAHALLI HOBLI, KORATAGERE TALUK – 572129.
... PETITIONERS (BY SRI RAMESH P. KULKARNI, ADVOCATE) AND:
1. KUM. MONISHA D/O S V THIRUMALARAJU AGED ABOUT 12 YEARS MINOR REPERESENTED BY HER MOTHER NATURAL GUARDIAN SMT. P. B. TANUJA, W/O S. V. THIRUMALARAJU, AGED ABOUT 26 YEARS RESIDING C/O P. H. BASAVARAJAIAH BEHIND VYSYA BANK, BESIDES VAISHALI HOTEL B H ROAD, NISARGA EXTENSION, TUMKUR – 572103.
2. S. V. THIRUMALARAJU S/O VENKATESHAIAH AGED ABOUT 46 YEARS VETERINARY DISPENSARY, CHIKKABELAVANGALA DODDABALLAPURA TALUK BENGALURU RURAL DISTRICT - 561204 3. SMT. GOWRAMMA W/O VENKATESHAIAH AGED ABOUT 53 YEARS DEFENDANT No.2 & 3 ARE RESIDING AT BOMMALADEVIPURA HOLAVANAHALLY HOBLI, KORATAGERE TALUK TUMKUR DISTRICT - 572129 4. SMT. LAKSHMIDEVAMMA W/O LATE VENKATESHAIAH AGED ABOUT 65 YEARS 5. SRI VENUGOPALA @ GOPALA S/O LATE VENKATESHAIAH AGED ABOUT 35 YEARS BOTH ARE RESIDING OF CHIKKASAGGERE, HOLAVANAHALLI HOBLI, KORATAGERE TALUK – 572129.
... RESPONDENTS (BY SRI V. B. SIDDARAMAIAH, ADVOCATE FOR C/R1; R4 AND R5 IS SERVED BUT UNREPRESENTED;
VIDE ORDER DATED 28.03.2019 NOTICE TO R2 AND R3 ARE DISPENSED WITH) **** THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH / SET ASIDE THE ORDER UNDER ANNEXURE-A [ORDER PASSED BY THE PRINICPAL SENIOR CIVIL JUDGE AND JMFC, MADHUGIRI DATED 22.9.2018 DISMISSING THE APPLICATION I.A.NO.XI IN O.S.NO.103/2007 OF THE PETITIONERS FILED UNDER ORDER I RULE 10[2] OF THE CODE OF CIVIL PROCEDURE SEEKING TO IMPLEAD THEM AS DEFENDANTS IN THE SAID SUIT] AND DIRECT THE IMPLEADING OF THE PETITIONERS AS DEFENDANTS TO THE SAID SUIT.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioners - impleading applicants filed the present writ petition against the order dated 22.9.2018 rejecting I.A. No.11 filed by them under Order 1 Rule 10(2) of the Code of Civil Procedure to implead them as defendants in the suit.
2. The 1st respondent who is the plaintiff filed the suit against the Respondent Nos.2 to 5 for partition and separate possession in respect of the suit schedule properties, morefully described in the schedule to the plaint, contending that the suit schedule properties are the joint family properties of the plaintiff and the defendants and there was no partition and he is entitled to share. The defendants filed the written statement contending that there was partition and they are entitled to one-fourth share in all the properties.
3. When the matter was posted for arguments, at that stage, the present petitioners filed application under Order 1 Rule 10(2) of the Code of Civil Procedure contending that plaintiff and defendants are from the branch of late Venkateshappa and the applicants 1 and 2 and one Mr. Krishnamurthy, the father of the 3rd applicant are brothers of late Venkateshappa. They have divided the joint family properties by means of palupatti dated 21.7.1985. Later as there was some mistake, said palupatti was cancelled and new palupatti dated 20.8.2007 has come into existence. As per the division, in suit item Nos.1,2,3 and 5, the applicants have got separate share. Based on palupatti, khatha and pahani have been changed in their names separately, but the plaintiff has included all the properties, which included share of the proposed applicants. Suit item No.2 i.e., Sy.No.15/1A stands in the name of Venkateshaiah and the present petitioners - proposed applicants are his brothers. The said property is not included in the palupatti and they are having their separate share in the said properties. To defeat and defraud their right over the said properties, the plaintiff has included the properties belonging to the proposed impleading applicants. Therefore the proposed applicants are necessary parties to the suit to protect their properties. The plaintiff and defendant Nos.4 and 5 filed objections to the said application. The trial Curt considering the application and the objections by the impugned order dated 22.9.2018 rejected the application mainly on the ground that application is filed after lapse of 11 years and no materials produced by the applicants to show that they are proper and necessary parties. Hence the present writ petition is filed.
4. Sri Ramesh P Kulakarni, learned counsel for the petitioners – impleading applicants contended that the impugned order passed by the trial Court rejecting the application for impleading is erroneous and contrary to the material on record. The genealogy tree produced as per Annexure-E clearly discloses that the proposed applicants are the members of the joint family and original propositus was one Arasegowda and the plaintiff and the defendants are from the branch of Venkateshaiah. The plaintiff, who is the grand-daughter of Venkateshaiah has also included the properties belonging to the applicants in the suit schedule properties though applicants have got share in suit item Nos.1,2,3 and 5. Hence the proposed applicants are necessary and proper parties. Therefore he sought to allow the petition.
5. Sri V.B. Siddaramaiah, learned counsel for the respondents has not disputed the genealogy and that the shares of the impleading applicants are also included in the suit schedule properties 6. Since some of the properties belonging to applicants are included in the suit schedule properties, the proposed impleading applicants are necessary and proper parties to resolve the dispute between the parties in the suit for partition. The trial Court ought not to have rejected the application for impleading on technicality. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done on technicality. It must be grasped that Judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
7. Admittedly, in the present case, the proposed impleading applicants are members of the original joint family of Arasegowda and the properties belonging to them are also included in the suit schedule properties 1 to 12. When some of the properties belonging to the impleading applicants are included in the suit schedule properties, they are necessary and proper parties. Therefore the impugned order passed by the trial Court cannot be sustained.
8. For the reasons stated above, the writ petition is allowed. The impugned order passed by the trial Court dated 22.9.2018 on I.A. No.11 made in O.S. No.103/2007 on the file of the Prl. Senior Civil Judge & JMFC, Madhugiri is hereby quashed. I.A. No.11 filed by the petitioners - impleading applicants under Order 1 Rule 10(2) of the Code of Civil Procedure is allowed and the petitioners are permitted to proceed with the case. The plaintiff shall file amended plaint before the trial Court within a period of 14 days from the date of receipt of the copy of this order.
9. Since the suit filed in the year 2007 and we are in 2019, the trial Court is directed to dispose of the suit at the earliest subject to cooperation from the parties to the lis.
Sd/-
Gss/- JUDGE