Karnataka High Court
Kasturi @ Sunitha vs S Arundathi on 8 June, 2023
Bench: S.R.Krishna Kumar
-1-
NC: 2023:KHC:19632
WP No. 9875 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 9875 OF 2020 (GM-CPC)
BETWEEN:
KASTURI @ SUNITHA
W/O K G KRISHNAMURTHY
AGED ABOUT 68 YEARS
R/AT CHATRAKERI
THIRTHAHALLI TOWN
REPRESENTED BY HER GPA HOLDER
K.G KRISHNAMURTHY
S/O GANAPAIAH NAYAK
AGED ABOUT 78 YEARS
R/AT CHATRAKERI
THIRTHAHALLI TOWN
Digitally SHIVAMOGGA DISTRICT-577432
signed by
NARASIMHA
MURTHY ...PETITIONER
VANAMALA
(BY SRI. SHOWRI H.R., ADVOCATE FOR
Location:
HIGH SRI. RAKSHITH JOIS. Y.P., ADVOCATE)
COURT OF
KARNATAKA
AND:
1. S ARUNDATHI
W/O LATE SHARTH KUMAR
AGED ABOUT 80 YEARS
-2-
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WP No. 9875 of 2020
2. RAGHAVENDRA
S/O SHARATH KUMAR
AGED ABOUT 51 YEARS
3. VENKATESHA
S/O SHARATH KUMAR
AGED ABOUT 48 YEARS
4. MURALI @ MURALIDHAR
S/O SHARATH KUMAR
AGED ABOUT 46 YEARS
RESPONDENT NOS.1 TO 4 ARE
RA/T NO.1573, 2ND CROSS ROAD
C AND D BLOCK
KUVEMPUNAGARA
MYSURU-570023
5. KALPANA
W/O K SHIVANANDA KINI
AGED ABOUT 58 YEARS
RA/T NO.17, BLOCK NO.17
S.B.M COLONY
SRIRAMPURA 2ND STAGE
MYSURU -570023
6. ANUPAMA S @ A.S MALYA
W/O K SURESH MALYA
AGED ABOUT 59 YEARS
R/AT RAKSHA
LOHITHNAGARA, (DEREBAIL GOLLAJI)
NEAR NH 17, MANGALURU-575006
7. CHETANA
W/O K SHANTARAM NAYAK
AGED ABOUT 53 YEARS
R/AT NO.755, 14TH MAIN ROAD
53 CROSS ROAD, 1 STAGE
-3-
NC: 2023:KHC:19632
WP No. 9875 of 2020
KUMARASWAMY
BENGALURU-560078
...RESPONDENTS
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO DECLARE
THAT THE SUO-MOTO ORDER PASSED BY THE
LEARNED SENIOR CIVIL JUDGE AND JMFC
DTD.18.1.2020 IN O.S.NO.1/2019 IS ILLEGAL AND
QUASH THE SAME AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is directed against the impugned order
dated 18.01.2020 passed in O.S.No.1/2019 by the Senior
Civil Judge and JMFC, Tirthahalli (for short, the trial Court')
whereby, the petitioner-plaintiff is directed to implead all the
legal heirs of Sri. Vedavyasa Jois S/o. Anath Narayana
Jois.
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WP No. 9875 of 2020
2. Heard learned counsel for the petitioner and
perused the material on record. For the order proposed,
notice to the respondents is dispensed with.
3. The material on record discloses that the
petitioner instituted the aforesaid suit for partition and
separate possession of his 5/6th share in the suit schedule
immovable property. The plaint averments indicate that it
was the specific contention of the petitioner-plaintiff that the
respondents-defendants were co-owners having a joint
1/6th share in the suit schedule properties. It was further
contended that the other co-sharers who were jointly
entitled to the remaining 5/6th share had already conveyed
the remaining 5/6th share in favour of the petitioner-plaintiff
under various sale deeds and it was only 1/6th share of
the respondents-defendants which was not conveyed and
consequently, the petitioner-plaintiff was entitled to partition
and separate possession of his undisputed 5/6th share in
the suit schedule properties excluding 1/6th share of the
respondents-defendants. However, after hearing the
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WP No. 9875 of 2020
parties, the trial Court reserved/posted the matter for
judgment at which stage, it proceeded to pass the
impugned order directing the petitioner to implead the other
co-sharers who had already executed registered sale deed
in favour of the petitioner in respect of their undisputed
5/6th share in the suit schedule property. Aggrieved by the
impugned suo moto order passed by the trial Court, the
petitioner is before this Court by way of the present petition.
4. A perusal of the impugned order will indicate
that the trial Court has come to the erroneous conclusion
that the vendors of the petitioner-plaintiff in relation to the
undisputed 5/6th share were both proper and necessary
parties to the present petition. In this context, it is relevant
to note that the material on record discloses that the
acquisition of 5/6th share in the suit schedule properties by
the petitioner-plaintiff was not in dispute between the
parties and it was his specific contention that he was
entitled to 5/6th share already sold in his favour excluding
1/6th share of the respondents-defendants. Further, the
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WP No. 9875 of 2020
petitioner was only a purchaser of an undivided 5/6th share
in the suit schedule properties and under these
circumstances, the question of impleading, the other co-
sharers as additional defendants/vendors of the plaintiff to
the suit would not arise in the facts and circumstances of
the instant case and as such, the impugned order passed
by the trial Court having occasioned failure of justice, the
same warrants interference by this Court in the present
petition, particularly when no prejudice would be caused to
the respondents if the petitioner was not compelled to
implead the other co-sharers who had undisputedly sold
their 5/6th share in favour of the petitioner.
In the result, I proceed to pass the following:
ORDER
a) The petition is hereby allowed.
b) The impugned order dated 18.01.2020 passed
in O.S.No.1/2019 by the Senior Civil Judge and
JMFC, Tirthahalli is hereby set aside.
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WP No. 9875 of 2020
c) The trial Court is directed to proceed further in
the matter and pass appropriate
orders/judgment in accordance with law without
directing the petitioner-plaintiff to implead the
persons as directed in the impugned order.
Sd/-
JUDGE
RB
