Mr H Hemmanna vs Smt Nagarathna Jayaramu
2022 Latest Caselaw 3860 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 07TH DAY OF MARCH, 2022

                         BEFORE

        THE HON'BLE MR. JUSTICE E.S. INDIRESH

       WRIT PETITION NO.5146 OF 2022 (GM-CPC)

BETWEEN:

1. MR. H. HEMMANNA
   S/O MANCHAIAH
   AGED ABOUT 58 YEARS
   R/AT D.NO.2564,
   1ST CROSS, GANDHINAGAR,
   MANDYA-571 401.

2. MR. A.C. NAGARAJU
   S/O CHIKKANNA
   AGED ABOUT 43 YEARS
   R/AT 5TH CROSS,
   CHAMUNDESHWARINAGAR,
   MANDYA-571 401.

3. MR. MOHAMMED IRFAN
   S/O ABDUL JABBAR
   AGED ABOUT 53 YEARS
   R/AT RAJIV NAGAR,
   MYSURU-570 019.
                                         ...PETITIONERS
(BY SRI.NAVEED AHMED, ADVOCATE)

AND:

1. SMT. NAGARATHNA JAYARAMU
   W/O LATE G.B. JAYARAMU
   AGED ABOUT 68 YEARS.
                                   2



2. MR. M.J. MADHUCHANDRA
   S/O LATE G.B. JAYARAMAU
   AGED ABOUT 51 YEARS.

3. MR. M.J. AJAYCHANDRA
   S/O LATE G.B. JAYARAMU
   AGEDA ABOUT 47 YEARS.

4. SMT. AKSHATHA JAYARAMU
   D/O LATE G.B. JAYARAMU
   AGED ABOUT 38 YEARS.

   RESPONDENTS 1 TO 4 ARE
   RESIDING AT #437, 10TH CROSS,
   SWARNASANDRA,
   MANDYA-571 402.
                                                   ....RESPONDENTS

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 13TH SEPTEMBER, 2021 PASSED ON IA NO.III IN
ORIGINAL SUIT NO.750 OF 2018 ON THE FILE OF THE II
ADDITIONAL CIVIL JUDGE AND JMFC, MANDYA AT ANNEXURE-A;
AND ETC.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

Heard learned counsel appearing for the petitioners.

This writ petition is filed by the proposed defendant No.3

and defendants 1 and 2 in Original Suit No.750 of 2018 on the

file of the II Additional Civil Judge and JMFC, Mandya (for short,

hereinafter referred to as 'trial Court'), dismissing the IA.III filed

by the applicant under Order I Rule 10(2) of the Civil Procedure

code.

2. The brief facts for adjudication of this writ petition are

that the petitioner No.1 herein had filed Original Suit No.659 of

1991, seeking relief of permanent injunction restraining the

father of respondent Nos. 1 and 2 to 4, respectively from

interfering with the peaceful possession and enjoyment of the

suit schedule property. The said suit came to be decreed by the

trial Court, by its judgment and decree dated 28th February,

1996. It is further averred in the writ petition that after lapse of

22 years, the Legal representatives of the defendant No.1 in

Original Suit No.659 of 1991 have filed another suit in Original

Suit No.750 of 2018 against the petitioners 2 and 3 herein

claiming that they are in possession of the suit schedule

property. The said suit has been contested by defendants 1 and

2. In the meanwhile, the proposed defendant No.3 has filed an

application under Order I Rule 10(2) of the Civil Procedure Code

to implead him as proposed defendant No.3 in the suit. The said

application was rejected by the trial Court. Feeling aggrieved by

the same, the proposed defendant No.3 and defendants 1 and 2

in the suit have preferred this writ petition.

3. I have heard Sri. Naveed Ahmed, learned counsel

appearing for petitioners, who contended that the finding

recorded by the trial Court declining to entertain the application

under Order I Rule 10(2) of the Civil Procedure Code is not

correct since the impleading applicant has filed suit in Original

Suit No.659 of 1991 against the father of the plaintiffs and the

said suit came to be decreed as per Annexure-B. He further

contended that, the plaintiff/respondents herein have filed the

suit in Original Suit No.750 of 2018 and therefore, he argued

that the trial Court ought to have accepted the application in

IA.III filed by the petitioner No.1 herein. Accordingly, he sought

for interference by this Court.

4. Having heard Sri. Naveed Ahmed, learned counsel

appearing for petitioners, it is not in dispute that the petitioner

No.1 herein filed the suit in Original Suit No.659 of 1991 against

the father of the plaintiffs. The said suit is for relief of

permanent injunction. It is forthcoming from the writ papers

that the children of defendant in Original Suit No.659 of 1991

have filed Original Suit No.750 of 2018, claiming relief of

permanent injunction restraining defendants therein. Taking

into consideration the finding recorded by the trial Court that the

subject matter of the suit in Original Suit No.659 of 1991 is

different from Original Suit No.750 of 2018 and also, it is an

undisputable fact that the decree of granting permanent

injunction is a recurring cause of action, I do not find any merit

in submission made by learned counsel appearing for petitioners.

Accordingly, writ petition is dismissed.

Sd/-

JUDGE

ARK