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2023 DIGILAW 1278 (KAR)

B. M. Ramachandregowda v. B. M. Tulasiramegowda

2023-11-06

V.SRISHANANDA

body2023
JUDGMENT 1. Heard Sri P.M.Siddamallappa, Sri V.B.Shivakumar and Sri Brijesh Patil, advocates. 2. Applications are filed by the contesting respondent/ plaintiff to implead respondent Nos.22 to 31 as additional defendants in the suit. Admittedly, the said application is filed stating that they are also necessary parties and they are the members of the family and in the absence of those parties on record, the suit would be bad for non joinder of necessary parties. 3. In fact, such an attempt should have been made before the Trial Court, but for the reasons best known to the plaintiff, such a course was not taken to by the plaintiff before the Trial Court. 4. Further, Trial Court, ignoring the fact that all the sharers have not been made as parties, proceeded to decree the suit despite there is a specific contention taken in the written statement with regard to non joinder of necessary parties and also taking a plea that there is prevision partition on 22.09.1994. 5. Therefore, it is just and necessary for this Court to setaside the impugned judgment, especially, when the plaintiff is seeking impleading additional sharers as party defendants by filing the application. 6. It is also submitted at the Bar that another member of the family has filed a suit in O.S.No.1335/2020 which is now pending on the file of the Additional Civil Judge (Sr.Dn.), Bengaluru Rural District, with almost similar prayer as that of the plaintiff. Setting aside the impugned judgment and remitting the suit of which the present appeal arises to the Trial court, to be tried along with O.S.No.1335/2020, permitting the plaintiff to implead all necessary parties and also directing the Court to consider the fact of previous partition and pass appropriate orders would meet the ends of justice. 7. At this stage, Sri V.B.Shivakumar, counsel representing appellant No.1-B.M.Ramachandre Gowda submits that the Bengaluru Development Authority is acquiring the property and because of the present lis, the appellants are deprived of getting the benefits from the BDA. 8. Sri P.M.Siddamallappa, counsel submits that by executing necessary indemnity bond, appellant can take the benefit of the acquisition subject to result of the suit in O.S.No.138/1997 of which the present appeal arises and also subject to the result of O.S.No.1335/2020. 9. Placing the above submissions on record, following: ORDER (i) Appeal is allowed. 8. Sri P.M.Siddamallappa, counsel submits that by executing necessary indemnity bond, appellant can take the benefit of the acquisition subject to result of the suit in O.S.No.138/1997 of which the present appeal arises and also subject to the result of O.S.No.1335/2020. 9. Placing the above submissions on record, following: ORDER (i) Appeal is allowed. (ii) The impugned judgment and decree dated 01.03.2008 passed in O.S.No.138/1997 on the file of the Prl. Civil Judge (Sr.Dn.), Bengaluru Rural District, Bengaluru, is hereby set-aside. (iii) The matter is remitted to the Trial Court for fresh disposal in accordance with law. (iv) Plaintiff is at liberty to file similar application before the Trial Court to implead all the necessary parties in the suit and proceed with the suit in accordance with law. (v) Further, the acquisition notification in respect of the suit properties issued by the BDA can be processed by BDA and appellants are permitted to take the benefits from the BDA including the compensation and 40% benefits in the developed land subject to executing indemnity bond specifically mentioning that the benefits are taken subject to the result of O.S.No.1335/2020 and O.S.No.138/ 1997. (vi) Parties shall appear before the Trial Court without further notice, on 27th November 2023. (vii) If O.S.No.1335/2020 is pending on a different Additional Court, parties are liberty to file necessary application before the Prl. District Judge, Bengaluru Rural District, to club O.S.No.1335/2020 and O.S.No.138/ 1997 and to dispose of both the suits simultaneously. (viii) In view of the appeal being allowed and matter being remitted to the Trial Court, Cross Objection No.5/2022 would not survive for consideration. (ix) Ordered accordingly. (x) All the pending applications in the appeal and cross objection are disposed of.