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2018 DIGILAW 49 (KAR)

Srinath A. H. S/o Late Anjinappa v. Munilakshmamma W/o Late Narayanappa

2018-01-05

B.VEERAPPA

body2018
ORDER : The plaintiff has filed the present writ petition against the order dated 7.4.2015, passed on an interlocutory application made in O.S.No.370/2013, allowing the application filed under Order 1 Rule 10(2) of the Code of Civil Procedure, by the proposed impleading applicants to implead them as plaintiffs 2 to 5. 2. The present petitioner, who is the plaintiff before the Trial Court, filed the suit for declaration that the plaintiff is the only legal heir of late Venkataramanappa and the absolute owner and in possession of suit schedule property and for permanent prohibitory injunction restraining the defendants, their henchmen, agents or anybody else claiming under them from disturbing the plaintiff’s peaceful possession and enjoyment over the suit schedule property. The defendants filed the written statements, denied the entire plaint averments, except admitting that the suit schedule property belongs to Venkataramanappa and the plaintiff is no way concerned with Venkataramanappa and sought for dismissal of the suit. 3. During the pendency of the suit, the proposed impleading applicants/respondents 9 to 12 filed an application under Order 1 Rule 10(2) of the Code of Civil Procedure to come on record as plaintiffs 2 to 5, contending that they are the daughters of late Venkataramanappa @ Nandi Venkataramanappa, who had purchased the schedule property under a registered sale deed and after his death, the property is fraudulently alienated by creating concocted document without the knowledge of the applicants. Subsequently, they came to know about the filing of the suit by the plaintiff without making all the legal heirs of Venkataramanappa with an intention to grab the rights of the impleading applicants in the suit schedule property. The plaintiff has no independent and exclusive right to claim the entire suit schedule property. The genealogical tree produced by the plaintiff is false and he has not mentioned the names of all the legal heirs of the deceased Venkataramanappa. Therefore, they want to come on record. 4. The said application was resisted by the plaintiff contending that the proposed applicants are no way concerned with the suit property of Venkataramanappa and they are not necessary and proper parties to the suit, since the suit is filed for declaration and permanent injunction. Therefore, sought for dismissal of the application. 5. Therefore, they want to come on record. 4. The said application was resisted by the plaintiff contending that the proposed applicants are no way concerned with the suit property of Venkataramanappa and they are not necessary and proper parties to the suit, since the suit is filed for declaration and permanent injunction. Therefore, sought for dismissal of the application. 5. The Trial Court after considering the application and objections, by the impugned order dated 7.4.2015, allowed the application filed by the impleading applicants and permitted them to come on record as plaintiffs 2 to 5. Hence, the present writ petition is filed. 6. Service of notice to the respondent Nos.1 to 7 is dispensed with, by the order dated 6.8.2015. The respondent Nos.8, 11 and 12 though served remained unrepresented. 7. I have heard the learned counsel for both the parties to the lis. 8. Sri.Jayaprakash Reddy M, the learned counsel for the petitioner vehemently contended that the impugned order passed by the Trial court allowing the application filed under Order 1 Rule 10(2) of the Code of Civil Procedure for impleading proposed applicants as plaintiffs 2 to 5 is erroneous and contrary to the material on record. The proposed impleading applicants have not produced any scrap of material to show that they are daughters of Venkataramanappa @ Nandi Venkataramanappa, except making statements in the application. The application is disputed by the plaintiff by filing objections. The same has not been considered by the Trial Court and has allowed the impleading applicants to come on record as plaintiffs 2 to 5 in the suit filed for declaration and permanent injunction. Therefore, he sought to quash the impugned order by allowing the writ petition. 9. Per contra, Sri. Narasimharaju, the learned counsel for the respondents 9 and 10 sought to justify the impugned order and contended that the applicants have specifically stated in the application that they are the daughters of Venkataramanappa @ Nandi Venkataramanappa. It is the mistake of the counsel who appeared for the impleading applicant before the Trial Court that he has not produced any material to show that they are the daughters of Venkataramanappa @ Nandi Venkataramanappa. Therefore, they are necessary and proper parties to the suit and they have not disputed that the plaintiff is one of the legal representative of Venkataramanappa. Therefore, he sought to dismiss the writ petition. 10. Therefore, they are necessary and proper parties to the suit and they have not disputed that the plaintiff is one of the legal representative of Venkataramanappa. Therefore, he sought to dismiss the writ petition. 10. Having heard the learned counsel for the parties, it is not in dispute that the plaintiff filed the suit for declaration and permanent injunction in respect of the suit schedule property, contending that he is the sole legal representative of deceased Venkataramanappa, who is the owner of the property in question. The defendants denied the relationship of the deceased Venkataramanappa with the plaintiff. It is also not in dispute that the proposed impleading applicants filed application under Order 1 Rule 10(2) of the Code of Civil Procedure to come on record as plaintiffs 2 to 5. Except bear allegations that they are the daughters of Venkataramanappa, they have not produced any material document to show that they are concerned with the property and they are the daughters of Venkataramanappa @ Nandi Venkataramanappa. The same is disputed by the plaintiff in the objections. Unfortunately, the Trial Court, accepting the assertions made in the application, has recorded a finding that if at all the proposed applicants are the daughters of Venkataramanappa, the owner of the suit property, they would certainly become necessary parties in the suit. The fact that whether the said proposed applicants are the daughters of Venkataramanappa @ Nandi Venkataramanappa, is a matter to be decided after a detailed trial. At that stage, if the proposed plaintiffs are not impleaded, ultimately, they may be put to irreparable hardship and injustice. Accordingly, the application came to be allowed. The Trial Court has not recorded the reasons for allowing the proposed applicants to be impleaded as the plaintiffs 2 to 5. In view of the same, the impugned order passed by the Trial Court allowing the application without any material on record cannot be justified. 11. The learned counsel for the respondents submits that though they have abundant material on record, the learned counsel who represented the impleading applicants before the Trial Court has not produced the same. Because of the mistake committed by the counsel, the party should not suffer. It is true, if there are really documents to show that the proposed applicants are the daughters of Venkataramanappa, they should not be deprived of their rights in respect of the suit property. Because of the mistake committed by the counsel, the party should not suffer. It is true, if there are really documents to show that the proposed applicants are the daughters of Venkataramanappa, they should not be deprived of their rights in respect of the suit property. Therefore, in order to do justice, it is suffice to direct the Trial Court to consider the application and documents, if any, to be produced by the proposed impleading applicants to prove that they are the daughters of Venkataramanappa. In the interest of justice, the matter requires reconsideration. 12. For the reasons stated above, the writ petition is allowed. The impugned order dated 7.4.2015 passed on the application filed under Order 1 Rule 10(2) of the Code of Civil Procedure is quashed. The matter is remanded to the Trial Court with a direction to consider the application and the documents if any to be produced by the proposed applicants to show that they are the daughters of Venkataramanappa and pass orders in accordance with law with detailed reasons. 13. The learned counsel for the respondent Nos.9 and 10 submits that he will produce documents to prove that the impleading applicants are the daughters of Venkataramanappa @ Nandi Venkataramanappa within a period of two weeks. The Trial Court shall consider the same and pass orders in accordance with law, within two months from the date of receipt of the documents.