Shri Mohan S/O Shankrappa ... vs Shri Gavisiddappa S/O Ningappa ...
2023 Latest Caselaw 822 Kant

                                                                -1-




                                                                      WP No. 102791 of 2021


                                    IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                           DATED THIS THE 12TH DAY OF JANUARY, 2023

                                                            BEFORE
                                         THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
                                         WRIT PETITION NO. 102791 OF 2021 (GM-CPC)
                                    BETWEEN:

                                    SHRI MOHAN S/O SHANKRAPPA SIMPIGER
                                    AGED ABOUT 77 YEARS,
                                    OCC-BUSINESS,
                                    R/O HOSAYALLAPUR
                                    DHARWAD
                                                                               ...PETITIONER
                                    (BY SRI. SHRIKANT T PATIL AND
                                     SRI. ROHIT S.PATIL, ADVOCATES)

                                    AND:

                                    1.   SHRI GAVISIDDAPPA
                                         S/O NINGAPPA BADIGER
                                         AGE-77 YEARS,
                                         OCC-AGRICULTURE,
                                         R/O DIVISION-1,
                                         BASVANAGAR,
                                         HALIYAL ROAD,
                                         DHARWAD.
              Digitally signed by
              CHANDRASHEKAR
CHANDRASHEKAR LAXMAN
LAXMAN        KATTIMANI
KATTIMANI
              Date: 2023.01.14
              11:23:38 +0530
                                    2.   SHRI BASAVARAJ,
                                         S/O KALLAPPA MALLIGWAD
                                         AGE 57 YEARS,
                                         OCC-ADVOCATE,
                                         R/O FLAT NO 126,
                                         SHAKTI NAGAR,
                                         NEAR BANDEMMA TEMPLE,
                                         DHARWAD.

                                    3.   SHRI GURUYYA,
                                         S/O BASAYYA BAALEDMATH
                                -2-




                                         WP No. 102791 of 2021


    AGE 47 YEARS,
    OCC-AGRICULTURE
    R/O SAIDAPUR,
    DANDIN ONI
    DHARWAD.
                                         ...RESPONDENTS
(BY SRI. S.B.MALLIGAWAD, ADVOCATE FOR R1 AND R2;
 SRI RAKESH M.BILKI AND SRI M.B.PHATAK, ADV.FOR R3)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT OF CERTIROARI TO QUASH THE IMPUGNED ORDER
PASSED ON I.A.NO.XII DATED 17.07.2021 IN OS.NO.297/2013
ON THE FILE OF IST ADDITIONAL SENIOR CIVIL JUDGE AND
CJM, DHARWAD VIDE ANNEXURE-F BE PASSED IN THE ENDS
OF JUSTICE.

     THIS PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:

                             ORDER

This petition is directed against the impugned order dated

17.07.2021 passed on I.A.No.12 in O.S.No.297/2013 on the file

of Addl.Senior Civil Judge and C.J.M., Dharwad whereby the

aforesaid application filed by the petitioner-plaintiff under Order

I Rule 10(2) C.P.C. was rejected by the trial Court.

2. Heard learned counsel for the petitioner and learned

counsel for respondents and perused the material on record.

3. The material on record discloses that the petitioner

is the plaintiff in the aforesaid suit for declaration, injunction

and other reliefs in relation to the suit schedule property filed

WP No. 102791 of 2021

against respondents No.1 and 2/defendants. The matter having

been posted on 18.11.2020 before the trial Court, the same

was adjourned to 21.11.2020 for further arguments. On

21.11.2020, the petitioner/plaintiff filed the instant application-

I.A.No.12 seeking impleadment of respondent No.3 as

proposed additional defendant No.3 by invoking Order I Rule

10(2) C.P.C. The said application was opposed by the proposed

respondent No.3 by filing his objections pursuant to which the

trial Court proceeded to pass impugned order rejecting

I.A.No.12, aggrieved by which the petitioner-plaintiff is before

this Court by way of present petition.

4. A perusal of the impugned order will indicate that

the trial Court has rejected I.A.No.12 on the sole ground that

the matter had been posted for judgment and consequently,

the question of considering an application for impleadment will

not arise at the stage of judgment. This finding recorded by the

trial Court is clearly factually incorrect in the light of the

proceedings recorded in the order sheet, which indicates that

the matter was not posted for judgment, but only for further

arguments. Under these circumstances, on this short ground

alone, without expressing any opinion on the merits/demerits

WP No. 102791 of 2021

of the rival contentions, I deem it just and proper to set aside

the impugned order and remit the matter back to the trial

Court for reconsideration of I.A.No.12 afresh in accordance with

law after providing sufficient and reasonable opportunity to all

parties. In the result, I pass the following:

ORDER i. The petition is allowed.

ii. The impugned order dated 17.07.2021 on I.A.No.12 is hereby set aside and matter is remitted back to the trial Court for reconsideration afresh of I.A.No.12 in accordance with law after providing an opportunity to all parties.

SD JUDGE

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