Karnataka High Court
Smt. Shilpa vs Sri Y Vijayakumar on 16 June, 2023
Bench: S.R.Krishna Kumar
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NC: 2023:KHC:20739
WP No. 25978 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 25978 OF 2022 (GM-CPC)
BETWEEN:
SMT. SHILPA
AGED 26 YEARS
W/O SRI KRISHNAMURTHY
D/O LATE GOWRAMMA
R/A NO. 1920 MIG 1
SURY NAGAR PHASE 1
COMPONENT B
NEAR BMTC DEPARTMENT
LAGGALURU CHANDAPURA POST
BENGALURU - 560081
...PETITIONER
Digitally signed by
(BY SRI. NAGARAJA REDDY D.,ADVOCATE)
NARASIMHA
MURTHY VANAMALA
Location: HIGH
COURT OF
KARNATAKA AND:
1. SRI Y VIJAYAKUMAR
AGED 30 YEARS
S/O YELLAPPA
R/O KURABATTI VILLAGE
HOSUR TALUK
KRISHNAGIRI DISTRICT
TAMILNADU - 635109
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WP No. 25978 of 2022
2. SMT. Y NIRMALA
AGED 29 YEARS
D/O YELLAPPA
W/O RAVIKUMAR
R/O SAMETHANAHALLI VILLAGE
ANUGONDANAHALLI HOBLI
HOSAKOTE TALUK
BANGALORE RURAL DISTRICT - 562114
3. SHRI YELLAPPA
AGED 67 YEARS
S/O NALLAPPA ALIAS YELLAPPA
4. SMT. CHIKKAMMA
AGED 66 YEARS
W/O YELLAPPA
R3 AND 4 ARE R/O PURA VILLAGE
LAKKUR HOBLI
MALUR TALUK
KOLAR DISTRICT - 563 160
...RESPONDENTS
(BY SRI. VARUN R R., ADVOCATE FOR R1 AND R2)
VIDE ORDER DATED 13.06.2023, NOTICE TO R3 &
R4 IS D/W)
THIS WP IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 29.10.2022 PASSED ON
I.A.NO. 3 IN O.S.NO. 229/2021 BY THE HONBLE SENIOR
CIVIL JUDGE AND JMFC, MALUR, AS PER ANNEXURE-
A.
THIS PETITION, COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
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WP No. 25978 of 2022
ORDER
This petition is directed against the impugned order
dated 29.10.2022 passed in O.S.No.229/2021 by the
Senior Civil Judge and JMFC, Malur (for short, 'the trial
Court') whereby, the application (I.A.No.3) under Order I
Rule 10(2) read with Section 151 of the Code of Civil
Procedure, 1908 filed by the petitioner-impleading applicant
seeking impleadment as an additional defendant to the suit
was rejected by the trial Court.
2. Heard learned counsel for the parties and
perused the material on record.
3. The material on record discloses that the
respondent Nos.1 and 2 - plaintiffs instituted the aforesaid
suit against the respondent Nos.3 and 4 - defendants for
partition and separate possession of their alleged share in
the suit schedule immovable properties and other reliefs.
During the pendency of the said suit, the petitioner herein
filed the instant application (I.A.No.3) seeking impleadment
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WP No. 25978 of 2022
inter alia contending that apart from the fact that she was
the foster daughter of the defendant No.1, the petitioner's
biological mother - Smt. Gowramma was allotted two items
viz., Item Nos.1 and 2 of suit schedule properties in a
compromise entered into between the said Smt.
Gowramma and others in O.S.No.116/2017 and
consequently, the alleged right, title, interest and
possession of the petitioner would be affected by any
judgment, decree or order to be passed in the present suit
and as such, the petitioner was both a proper and
necessary party to the present petition. The said
application having been opposed by the respondent Nos.1
and 2-plaintiffs, the trial Court proceeded to pass the
impugned order rejecting the application on the ground that
the petitioner had not produced any material to establish
her alleged right over the suit schedule properties and
consequently, she was neither a proper nor necessary
party to the present suit. Aggrieved by the impugned order
passed by the trial Court rejecting I.A.No.3, the petitioner is
before this Court by way of the present petition.
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WP No. 25978 of 2022
4. A perusal of the material on record including
the impugned order will indicate that the trial Court has
failed to consider and appreciate the specific contention of
the petitioner that apart from the fact that she is the alleged
foster daughter of defendant No.1, her biological mother
Smt. Gowramma had been allotted with Item Nos.1 and 2
of the suit schedule properties in a compromise entered
into in O.S.No.116/2017. It is well settled that at the time of
considering an application for impleadment, the
merits/demerits of the rival contentions cannot be gone into
and the said issues/questions will necessarily have to be
decided at the time of final disposal of the suit.
5. In the light of the specific contention of the
petitioner that she is the foster daughter of defendant No.1
and that her biological mother was allotted Item Nos.1 and
2 of the suit schedule properties as stated supra, the
presence of the petitioner would be necessary for
adjudication of the issue in controversy between the
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parties. Under these circumstances, without expressing any
opinion on the merits/demerits of the rival contentions as
regards the alleged right of the petitioner over the suit
schedule properties, I deem it just and appropriate to set
aside the impugned order and permit the petitioner to be
impleaded as the additional defendant for the purpose of
protecting her alleged right, title, interest and possession, if
any, in the suit schedule properties and by leaving open all
contentions in this regard.
6. In the result, I proceed to pass the following:
ORDER
a) The petition is hereby allowed.
b) The impugned order dated 29.10.2022 passed
in O.S.No.229/2021 by the Senior Civil Judge
and JMFC, Malur is set aside.
c) The application in I.A.No.3 is allowed to the
limited extent of permitting the petitioner to be
impleaded as additional defendant in the suit.
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d) However, the petitioner would be entitled to
contest the suit only in respect of Item Nos.1
and 2 of the suit schedule properties.
All rival contentions on the inter se claims between
the petitioner and the respondents are kept open to be
decided by the trial Court and no opinion is expressed on
the same.
Sd/-
JUDGE
RB
