IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N S SANJAY GOWDA WRIT PETITION NO.49755 OF 2015 (GM-CPC) BETWEEN :
Sri V.R. Srinivas Murthy S/o. Late Sri V.Rama Rao Aged about 58 years R/at No.1 and 3 are No.879 28th main, 9th block Jayanagar Bangalore – 560 069. …..Petitioner (By Sri Varadarajan M.S, Advocate) AND:
1. Smt. Nagubai W/o. A Krishnamurthy D/o. Gangaram Prasad Aged about 60 years R/a. Magadi road Bengaluru – 23.
2. Sri M.V. Krishnamurthy S/o. late Vallabharayappa Aged about 75 years R/a. No.23/5 Venkatappa Street Bengaluru – 560 004.
3. Smt. N.V.Vijayamba W/o. C.N. Satyanarayana Aged about 70 years R/a. 16/2, 1st floor Srinivasa Nilaya I Main Road Vijayarangam layout Basavanagudi Bengaluru – 4.
4. Sri B.K. Chandrashekar S/o. N.V. Krishnamurthy Aged about 44 years R/a. No.23/5, Yenkatappa Street Chikamavalli Bengaluru – 560 004. Respondents (Sri K. Gurudhatta, Advocate for R1 Notice to R2 – 4 is d/w v/o dtd: 11.02.2016) This writ petition is filed under Article 227 of the Constitution of India praying to set aside the order dated 02.11.2015 passed on I.A.No.22 in OS No.2107/1983 on the file of XI Additional City Civil Judge, Bengaluru City (Annexure-A).
This writ petition coming on for preliminary hearing in ‘B’ Group this day, the Court made the following:-
O R D E R The petitioner is an applicant who made an application under Order I Rule 10 of CPC seeking to implead himself as 3rd defendant in the suit.
2. It was his case that his father had been arrayed as defendant No.1(c) i.e., as one of the legal representative of his grandmother, who was the original defendant. It was his further case that during the pendency of the suit, his father V. Rama Rao who had been arraigned as defendant No.1(c) has passed away on 17.05.1996 and despite the death of his father, he had not been brought on record and in fact death of his father was also not brought to the notice of the Court.
3. The plaintiff objected to the proposed impleadment. The plaintiff, however did not specifically deny the fact that the applicant was son of defendant No.1(c).
4. This Court on an earlier occasion in WP No.15851/2015 had allowed I.A.No.22 and set aside the order passed by the trial Court and had directed it to hold an enquiry in IA.No.22. Pursuant to the said direction, the trial Court held an enquiry, during the course of which, the petitioner had produced SSLC marks card and voter ID card.
5. The SSLC marks card indicated that the applicant was the son of Rama Rao U. The respondent however, contended that the name of the petitioner’s father was shown as Rama Rao U instead of Rama Rao V and hence could not be accepted.
6. The voter ID which was produced during the course of enquiry, however clearly indicates the name of the petitioner’s father as V. Rama Rao. It is therefore clear that the petitioner herein is in fact the son of V. Rama Rao and in view of being his son, he was entitled to come on record as his legal representative.
7. It is submitted that petitioner herein wishes to come on record as legal representative of deceased V. Rama Rao and does not wish to come on record in his independent capacity or under any other right.
8. The trial Court by the impugned order has come to the conclusion that the application filed for impleading does not deserve to be accepted.
9. The trial Court has also held that father of the petitioner had chosen not to appear in the suit and had remained ex-parte and therefore, the petitioner had not made out any grounds to implead himself as 3rd defendant.
10. In my view, the petitioner having made an application to come on record as the legal representative of deceased defendant No.1(c) could not be prevented by the trial Court to come on record, merely because his father had remained ex-parte and had not contested the suit. I am therefore of the view that the impugned order passed by the trial Court cannot be sustained and the same deserves to be set aside.
Writ petition is thus allowed.
I.A.No.22 passed by the XI Additional City Civil Judge, Bengaluru City in OS.No.2107/1983 is set aside and the applicant/petitioner herein is permitted to come on record as the legal representative of defendant No.1(c).
Having regard to the fact that the suit is of the year 1983, the trial Court shall endeavour to dispose off the suit by the end of April, 2020.
Sd/- JUDGE nms