Karnataka High Court
Smt. Meenakshi vs Shivarudrappa on 23 August, 2023
Bench: Vijaykumar A Patil
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NC: 2023:KHC:30115
WP No. 15292 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO. 15292 OF 2023 (GM-CPC)
BETWEEN:
SMT. MEENAKSHI
W/O NANJUNDARAJE URS
AGED ABOUT 62 YEARS,
R/AT NO 811/1A, F-9,
10TH CROSS, RAMANUJA ROAD,
KILLE MOHALLA,
MYSURU-570004.
...PETITIONER
(BY SMT. MAMATHA M R., ADVOCATE)
Digitally
signed by AND:
RUPA V
Location: 1. SHIVARUDRAPPA
HIGH COURT
OF S/O LATE PUTTAMADAPPA,
KARNATAKA AGED ABOUT 63 YEARS
R/AT NO 811/1A, F-9,
10TH CROSS, RAMANUJA ROAD,
KILLE MOHALLA,
MYSURU-570004.
2. THE COMMISSIONER
MYSURU CITY CORPORATION,
MYSURU-570004.
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3. THE ZONAL COMMISSIONER
ZONE OFFICE-1,
MYSORE CITY CORPORATION,
MYSURU-570004.
4. THE JOINT DIRECTOR
TOWN AND COUNTRY
PLANNING DEPARTMENT
MYSORE CITY CORPORATION,
MYSURU-570004.
...RESPONDENTS
(R1, R2, R3 AND R4 - SERVED)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER FOUND AT ANNX-A ORDER DTD 27.1.2023
IN M.A.NO.10/2023 ON I.A DTD 17.1.2023 ON THE FILE OF
THE IV ADDL. DISTRICT AND SESSIONS JUDGE, MYSURU AND
ALLOW THIS WP WITH COST AND GRANT SUCH OTHER
RELIEFS AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 15292 of 2023
ORDER
This petition is filed under Article 227 of the Constitution
of India, seeking prayer to quash the order dated 27.01.2023
passed on I.A.No.2 dated 17.01.2023 in M.A.No.10/2023 on
the file of the IV Additional District and Sessions Judge,
Mysuru.
2. Brief facts giving rise to filing of this petition is that
the petitioner herein has filed an application under Order 1 Rule
10(2) read with Section 151 of CPC, seeking prayer to implead
her as respondent No.4 in M.A.No.10/2023 filed by respondent
No.1 herein. The said application came to be rejected by the
Appellate Court. Being aggrieved by the same, present writ
petition is filed.
3. The petitioner claims that she is the absolute owner
of the property bearing Municipal Door No.811/F9 measuring
East to West 81/2 feet and North to South 60 feet situated at
10th Cross, Ramanuja Road, Khille Mohalla, Mysuru and
respondent No.1 herein is the owner of the adjacent property.
It is averred that Respondent No.1 has put up construction in
his property by demolishing the common wall existing between
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the petitioner and respondent No.1 property by causing
damage to the common wall. Hence, the petitioner herein was
compelled to file a complaint with respondent No.2-The
Commissioner, Mysuru City Corporation, Mysuru alleging that
the respondent No.2 is putting up illegal construction. It is
further averred that when respondent No.2-Corporation failed
to take action on the representation submitted by the
petitioner, the petitioner has filed O.S.No.1430/2021 seeking
prayer to declare that the Wall existing in between the house of
petitioner and respondent No.1 herein on the eastern side of
the petitioner's house is a common wall for the house of the
petitioner and respondent No.1 and further prayer to declare
that the defendant/respondent No.1 has no right of whatsoever
to cause any damage to the said Wall. The said suit ended in
compromise. In the said compromise, respondent No.1-
Judgment Debtor has agreed that he would restore the said
common wall to its original position by taking necessary repair
works, however the respondent No.1-Judgment Debtor in
O.S.No.1430/2021 has failed to adhere to terms of
compromise, which has compelled the petitioner to file
Execution Petition in Ex.No.125/2022.
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4. During the pendency of execution petition,
respondent No.2-Corporation has issued notice and
subsequently passed orders dated 05.09.2022 and 03.01.2023
under Section 321(3) of the Karnataka Municipal Corporations
Act, 1976 (for short 'KMC Act'), directing respondent No.1 to
bring the construction in conformity with the sanction plan.
Respondent No.1 has filed an appeal in M.A.No.10/2023 before
the District Court, assailing the confirmation order dated
21.11.2022 passed by respondent No.2 Corporation. The
petitioner herein has filed an application under Order 1 Rule
10(2) read with Section 151 of CPC seeking herself to implead
as respondent No.4 in the said appeal. The said application
was rejected by the Appellate Court. Being aggrieved by the
same, the petitioner is before this Court.
5. Smt.M.R.Mamatha, learned counsel appearing for
the petitioner submits that the Appellate Court has committed
grave error in rejecting the application filed by the petitioner
seeking to implead herself as a party to the proceedings in
M.A.No.10/2023 as it is the petitioner who has filed the
complaint before respondent No.2-Corporation about putting up
of illegal construction by respondent No.1 and on the basis of
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her complaint, the Corporation has issued notice and
subsequently passed an order of confirmation. Hence, the
petitioner is a proper and necessary party in the appeal as her
property rights are involved. It is submitted that respondent
No.1 herein was the defendant in O.S.No.1430/2021 who has
agreed in the compromise that he would restore the common
wall to its original position and without doing so, he has started
putting up illegal construction contrary to the sanction plan and
when Corporation has taken action against him without making
the petitioner herein as a party has filed appeal, assailing the
confirmation order passed by respondent No.2. Hence, the
petition is proper and necessary party in the appeal. It is
submitted that the Appellate Court has not considered these
aspects while rejecting the application. It is further submitted
that the petitioner is a proper and necessary party in the above
appeal as her rights which have been culminated in the
compromise decree would be affected if she is not made a
party to the proceedings pending before the Appellate Court.
Hence, she seeks to allow the petition.
6. Though the respondents are served, remained
absent. Hence, they are placed ex-parte.
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7. I have heard the learned counsel for the petitioner
and perused the material on record. It is not in dispute that
the petitioner herein has filed O.S.No.1430/2021 against
respondent No.1 herein seeking prayer to declare that the Wall
existing between the house of plaintiff i.e., petitioner herein
and respondent No.1 on the eastern side of the petitioner's
house is a common wall for the house of the petitioner and
respondent No.1 and further prayer to declare that respondent
No.1 has no right whatsoever to cause any damage to the said
Wall and other prayers. It is also not in dispute that the said
suit ended in compromise wherein, respondent No.1 has agreed
that he would restore the said common wall to its original
position by taking necessary repair works. After the disposal of
said suit, the respondent No.1 has failed to adhere to the terms
of compromise, which had compelled the petitioner herein to
file Execution Petition in Ex.No.125/2022. It is also not in
dispute that the petitioner has filed complaint before
respondent No.2- Corporation, alleging that respondent No.1 is
putting up construction contrary to the sanction plan and based
on the said complaint, respondent No.2 has initiated
proceedings against respondent No.1 and passed order under
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Section 321(3) of the KMC Act, which was assailed by
respondent No.1 appeal. Admittedly, respondent No.1 has
challenged the order dated 21.11.2022 passed by respondent
No.2 under Section 321(3) of the KMC Act in M.A.No.10/2023
without making the petitioner as a party to the proceedings.
8. The very initiation of the proceedings under Section
321(3) of the KMC Act is at the instance of the petitioner
herein. The petitioner herein is a beneficiary under the
compromise decree passed in O.S.No.1430/2021. The
respondent No.1 was the Judgment Debtor in the said suit, has
agreed that he would restore the common wall between the
house of petitioner and respondent No.1 to its original position.
In the said compromise decree, certain rights have been
accrued in favour of the petitioner, in other words, respondent
No.1 has agreed that he would restore the common wall
between the petitioner and respondent No.1 to its original
position and the said decree has attained finality and execution
proceedings are pending. When things stood thus, any order
passed in pending appeal would definitely affect the rights of
the petitioner. The petitioner is party to the disputes relating to
the subject matter of appeal to an extent of her rights
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recognized in decree. Hence, to determine the dispute in
appeal, the presence of the petitioner is necessary to
adjudicate the issue involved and to avoid further proceedings.
Hence, the petitioner herein is a proper and necessary party to
the proceedings initiated by respondent No.1. If the application
for impleading is allowed, no harm or prejudice would be
caused to respondent No.1 and if rejected it would lead to
multiplicity of proceedings between the parties on same subject
matter.
For the reasons recorded supra, writ petition is allowed.
The impugned order dated 27.01.2023 passed in
M.A.No.10/2023 is set aside. I.A.No.2 dated 17.01.2023 filed
by the petitioner herein is allowed.
Ordered accordingly.
No order to costs.
Sd/-
JUDGE
SMJ
