Smt Boramma vs Sri V K Rame Gowda
2022 Latest Caselaw 427 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 11TH DAY OF JANUARY, 2022

                         BEFORE

        THE HON'BLE MR. JUSTICE ASHOK.S.KINAGI

       WRIT PETITION NO.49932/2018 (GM-CPC)


BETWEEN:

1.     SMT BORAMMA
       AGED ABOUT 70 YEARS,
       W/O.RANGASHAMAIAH,

2.     SHRI THIMMARAJU
       AGED ABOUT 53 YEARS,
       S/O. BYRAPPA,

3.     SHRI RANGASWAMY
       AGED ABOUT 35 YEARS,
       S/O.BYRAPPA,

4.     SHRI HANUMANTHA
       AGED ABOUT 31 YEARS,
       S/O.RANGASHAMAIAH,

       THE PETITIONERS NO.1 TO 4 ARE
       RESIDING AT BABASABARPALYA,
       KENGERI HOBLI,
       BENGALURU SOUTH, BENGALURU.


                                       ... PETITIONERS
(BY SRI.VISHNU HEGDE, ADVOCATE)

AND:

1.     SRI V K RAME GOWDA
       S/O LATE KALE GOWDA,
                              2




       SINCE THE RESPONDENT NO.1 DIED,
       REPRESENTED BY LRS,
1(a)   SMT SOUBHAGYAMMA,
       W/O LATE SRI.V.K.RAMEGOWDA,
       AGED ABOUT 60 YEARS,

1(b) . SRI R SATISH
       S/O LATE V.K.RAMEGOWDA,
       AGED ABOUT 42 YEARS,

1(c)   SMT R PUSHPALAKSHMI @ R NANDA
       D/O.LATE SRI.V.K.RAMEGOWDA,
       W/O SRI.KRISHNAMURTHY,
       AGED ABOUT 39 YEARS,

       ALL ARE RESIDING AT:
       NO.38, M.I.G., 80FT. ROAD, 2ND STAGE,
       KENGERI SATELLITE TOWN,
       BENGALURU-560060.

2.     SMT JAYASHREE ANIL KUMAR
       W/O ANIL KUMAR,
       MAJOR, RESIDING AT NO.64,
       1ST MAIN ROAD,
       NEHRU NAGAR,
       BENGALURU-560020

       REPRESENTED BY HER GPA HOLDER,
       SRI.D.R.GUNDU RAJ,
       S/O LATE DODDARANGAPPA K
       MAJOR,
       RESIDING AT NO.64, NEW NO.12,
       4TH MAIN ROAD, NEHRU NAGAR,
       BENGALURU-560020.
                                           ... RESPONDENTS

(BY SRI.G.NARAYANA RAO, ADVOCATE FOR C/R1(A TO C);
SRI.P.D.SUBRAHMANYA, ADVOCATE FOR R2)
     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
IMPUGNED ORDER DATED 27.08.2018 PASSED IN I.A.NO.8 IN
O.S.NO.2830/2002 PASSED BY TEH VI ADDL. CITY CIVIL JUDGE
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AT BENGALURU, IN CCH-11 I.E. ANNEXURE-A BY ALLOWING
THE IA NO.8 AND GRANT ANY OTHER REMEDY OR DIRECTION
AS THIS HONBLE COURT DEEMS FIT IN THE CIRCUMSTANCES
OF THE ABOVE CASE.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:

                          ORDER

The petitioner being aggrieved by the order in

I.A.No.8 dated 27.08.2018 passed in

O.S.No.2830/2002 by the VI Additional City Civil

Judge, Bengaluru, (CCH-11) has filed this writ

petition.

2. Brief facts leading to filing of this writ

petition are as under:

The first respondent filed a suit for relief of

declaration, possession and injunction against the

second respondent in O.S.No.2830/2002. Respondent

No.2 filed written statement. The petitioners have also

filed an application in O.S.No.11000/2006 for relief of

partition and separate possession of the very same

subject matter of the property. The said suits were

clubbed. In the suit filed by the first respondent, the

petitioners filed an application in I.A.No.8 seeking for

impleading themselves as defendant No.1 to 4. The

petitioners in support of the application has filed an

affidavit stating that the proposed defendants did

come to the notice of the suit in O.S.No.2830/2002

while filing the application of the objector in Execution

Petition No.1852/1999, with an intention to protect

lawful and legitimate interest of the schedule

property. It is further contended that the subject

matter involved in both the suit are one and the same.

It is further contended that the petitioners are proper

and necessary parties. Hence, on this ground, the

petitioners filed an application for impleadment. The

respondent has not filed objection to the application to

the said application. The trial Court after hearing the

petitioners has passed impugned order rejecting the

application vide order dated 27.08.2018. Hence, the

petitioners have filed this writ petition.

3. Heard the learned counsel for the

petitioners and learned counsel for the respondents.

4. Learned counsel for the petitioners

submits that the trial Court has committed an error in

rejecting the application solely on the ground that the

Court has clubbed O.S.No.11000/2006 and Execution

Petition No.1852/1999 on 03.10.2016 on the

application filed by the plaintiff in

O.S.No.2830/2002. It is also submitted that the trial

Court made observation that even if all the cases are

being heard together, the question of impleading the

proposed defendant Nos.1 to 4 in the suit is not at all

necessary. Hence, the trial Court committed an error

in rejecting the application. He further submits that

the subject matter involved in both the suit are one

and same, if the petitioner is not permitted to come

on record, there will be chances of passing conflicting

judgment. Hence, on this ground he prays to allow the

writ petition.

5. Per contra, learned counsel for the

respondents submits that all the cases have been

heard together and question of impleading the present

petitioners in the suit does not arise. He further

submits that the trial Court was justified in passing

the impugned order. Hence, on this ground, he prays

to dismiss the writ petition.

6. Heard and perused the record and

considered the submission of the learned counsel for

the parties.

7. It is not in dispute that the petitioner has

filed a suit in O.S.No.11000/2006 in respect of the

same subject matter of the suit schedule property.

Further, the petitioners have also challenged the

registered sale deed executed in favour of the first

respondent. Further, it is also submitted that the first

respondent has filed a suit in O.S.No.2830/2002

seeking for the relief of declaration of ownership in

respect of the subject matter of the suit schedule

property involved in O.S.No.11000/2006. When the

subject matter of the schedule property is same in

both the suits, the petitioners are proper and

necessary parties. The petitioners have to answer the

contents of plaint in O.S.No.2830/2002 by way of

filing written statement. The trial Court rejected the

said application solely on the ground that the suits

and Execution Petition are heard together and

question of impleading the proposed defendant Nos.1

to 4 does not arise. The reasons assigned by the trial

Court is incorrect. If the petitioners are not permitted

to implead themselves as defendants in

O.S.No.2803/2002, there is chances of passing

conflicting judgment and further there will be no

denial of contents of plaint in O.S.No.2803/2002.

8. Hence, in view of the above discussion, the

petitioners are necessary and proper parties for the

purpose of deciding the dispute in O.S.No.2803/2002.

Therefore, the impugned order passed by the trial

Court is perverse and unsustainable in the eye of law.

In view of the above discussion, the writ petition is

allowed. The impugned order passed in I.A.No.8

dated 2708.2018 is set aside. I.A.No.8 is allowed. The

petitioners are permitted to come on record as

defendant Nos.1 to 4 in O.S.No.2830/2002.

Sd/-

JUDGE

RKA