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2016 DIGILAW 820 (KAR)

Chandrika, L. v. K. V. Lakshmarama

2016-11-05

B.VEERAPPA

body2016
ORDER : B. Veerappa, J. The defendant No. 10 in O.S.No.586/2009 on the file of the Senior Civil Judge, Nelamangala, has presented the above writ petition against the order dated 14th November, 2014 passed on I.A.No.5 allowing the application filed by the plaintiff under Order I, Rule 10(2) of Code of Civil Procedure. 2. The 1st respondent/plaintiff, hied suit for partition and separate possession in respect of suit schedule properties more fully described in the plaint (15 items) contending that the suit schedule properties are the joint family properties of the plaintiff and defendants. It was contended that the suit schedule properties except item Nos. 1, 2 and 4 were originally belonged to one M. Ramaiah, the Propositus of the joint family of plaintiff and defendants 1 to 4. The schedule items 1, 2 and 4 were earlier belonged to the 5th defendant being her self acquired properties and she had thrown the same into the common stock, as such, the same takes the character of joint family of defendant Nos. 1 to 5 etc. 3. The defendant Nos.1 to 5 filed written statement, denied the plaint averments and contended that there was earlier partition of the joint family properties etc. 4. When the matter was posted for evidence, the plaintiff filed the present application I.A. No.5 under Order I Rule 1.0(2) of the Code of Civil Procedure to implead the present petitioner as defendant No. 10, contending that during pendency of the suit, some of the properties hare been sold in favour of the proposed defendant. Therefore, they are proper and necessary parties for adjudication of the matter. 5. The proposed defendant No.1/petitioner filed objection to the application contending that the application is filed only with an intention to make unlawful gain and to put pressure on the parties. She is not at all a necessary and proper party. It was specifically stated that she is no way concerned with the suit schedule properties, therefore, application is liable to be rejected. 6. After considering the application and objections, the Trial Court, by the impugned order dated 14.11.2014, allowed the application filed by the plaintiff holding that the plaintiff intends to implead the proposed defendants in this suit, on the ground that they are the purchasers of the suit schedule properties during pendency of the suit. 6. After considering the application and objections, the Trial Court, by the impugned order dated 14.11.2014, allowed the application filed by the plaintiff holding that the plaintiff intends to implead the proposed defendants in this suit, on the ground that they are the purchasers of the suit schedule properties during pendency of the suit. Taking into consideration the nature of allegations made against the proposed defendants and also the nature of the suit, the presence of proposed defendants is very much necessary for proper adjudication of the dispute involved in the suit. Hence the present writ petition. 7. I have heard the learned counsel for the parties to the lis. 8. Sri S. Nagaraja, learned counsel for the petitioner vehemently contended that the impugned order passed by the Trial Court impleading the petitioner as one of the defendant is without application of mind; the property purchased by the petitioner in respect of site No.V-9, Khatha No.646, measuring East to West 15.60 mtrs. North to South 20.00 + 32.90/2 mtrs. Totally measuring 412.62 sq.mtrs. situated at Peenya II Stage, Peenya Industrial Area, in the limits of Nelagadaranahalli, Dasarahalii Nagara Sabha, Yashwanthapura Hobli, Bengaluru North Taluk, Bengaluru, is not subject matter of the schedule to the suit in O.S. No. 586/2009. It was further contended that she has not purchased any of the suit schedule properties during pendency of the suit and she is in no way concerned to the suit schedule properties and therefore, she is not a necessary and proper party to the suit. Hence, sought to allow the writ petition. 9. Per contra, Smt. S.N. Sudha, learned counsel for the respondent No.1/plaintiff, sought to justify the impugned order and strenuously contended that the present petitioner/proposed defendant who is wife of 4th defendant has purchased site No.V-9 stated supra from one Gurulingappa for sale consideration of Rs.20 lakhs which is also joint family property and therefore, she is proper and necessary party to the proceeding; and that the defendants are selling the suit properties one by one and ultimately, plaintiff will not get anything and therefore, subsequent purchasers are proper and necessary parties to the suit. She sought to dismiss the writ petition. 10. She sought to dismiss the writ petition. 10. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration is : "(i) Whether the petitioner who is the purchaser of some property which is not subject matter of any of the suit schedule properties, is a necessary and proper party to the suit ? (ii) Whether the impugned order passed by the Trial Court calls for interference ?" 11. It is undisputed fact that the 1st respondent/petitioner-K.V. Lakshmamma filed O.S.No.2222/2006 later renumbered as O.S.No.586/2009 for partition and separate possession against the defendants contending that the suit schedule properties are joint family properties of plaintiff and defendants and she is entitled to equal share. It is also not in dispute that the defendants in the suit denied the plaint averments and the matter was posted for evidence. At that stage, present application filed by the plaintiff to implead petitioner and others as defendants. Admittedly, the other defendants have not challenged the impugned order. Only petitioner is before this Court on the ground that she has not purchased any of the items of suit schedule properties and the property purchased by her is no way concerned to the suit schedule properties and it does not belong to any of the parties to the suit. 12. Admittedly, the petitioner purchased the property bearing site No.V-9 bearing khatha No.646 stated supra belonged to one Gurulingappa, who is not a party to the suit. Any transaction between Gurulingappa and the present petitioner Chandrika.L is no way concerned to the plaintiff and defendants in the present suit and same is not binding on them. The grievance of the plaintiff/1st respondent is that the property purchased by the petitioner is also one of joint family property and therefore, petitioner is necessary party, cannot be accepted. Admittedly, in the present case, the property purchased by the petitioner under registered sale deed dated 06.02.2007 from one Gurulingappa is not included in the schedule, and there is no avermemt in the entire plaint. In the absence of any material produced before the Court to show that the property in question is also joint family property, in the absence of any pleadings and in the absence of including the property in question in the schedule to the plaint, the observation made by the learned Judge is without any basis. 13. In the absence of any material produced before the Court to show that the property in question is also joint family property, in the absence of any pleadings and in the absence of including the property in question in the schedule to the plaint, the observation made by the learned Judge is without any basis. 13. The Trial Court, while allowing the application, should have verified the pleadings in I.A. No. 5 and the objections thereto. The present petitioner has specifically stated in the objections to the LA. that she is no way concerned with the suit schedule properties. If the plaintiff is able to establish that the properly in question is a joint family property, then she can take appropriate steps, in accordance with law. 14. For the aforesaid reasons, the point raised in the present writ petition has to be answered in the negative holding that the present petitioner is not a necessary and proper party and Trial Court is not justified in allowing the application filed by the plaintiff under Order I Rule 10(2) of the Code of Civil Procedure, since she has no interest in the suit schedule properties. Therefore, the impugned order dated 14.11.2014 passed by the learned Trial Judge calls for interference. 15. For the reasons stated above, the writ petition is allowed. The impugned order dated 14.11.2014 in O.S. No. 586/2009 on the file of the Senior Civil Judge, Nelamangala, passed on I.A. No.5 allowing the application filed by the plaintiff under Order I Rule 10(2) of Code of Civil Procedure, in respect of the petitioner is set-aside. The rest of the order of the Trial Court in respect of other proposed defendants is undisturbed. However, taking into consideration the fact that the suit is of the year 2006, the Trial Court is directed to decide the suit as early as possible.