W 1 W
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 1 1"' DAY OF NOVEMBER. 2010
BEFORE
THE HON'BLE MR.-JUSTICE 13.5. 1=A.'flL 4.11:': °" A
WP Nos.24686-687/20,09.[GM+OI5'C}*:'.';»
BETWEEN :
1.
The Karnataka Jain Ass0cia'fi_0i*:._[Regd~;],
No.81, K.R.Road. Shankarap1ira,"A»
Bar1ga10re--56O O04. A
Represented by its Seér'etary«;'A O' ;
[Sri T.G.D0ddan1ani].
Mothikhane Thimmappaiahi; ' _
Jain Vidi'1yari1':'%.._Ni§ay2:_, _
Replay E11e_P1jesif_dent.0f«the_ Karimtaka
Jain AsscJ{?iaLiCr1;"'N'0.8Ig[jK.R..RQad_. A
Shanka1*aI3'111*21.1'V,;. «. 5.
Bang.a:o're»5§5;o oii§4A;- " PETITIONERS
(By Sri
AND:
S_1"i '3.\IaVee.;'1 Kurflar, ____ H x
'Aged years.
' _R'esiid--1'nVg~Az'rt_N0._.353wA.
1&1 c;.o'ss,. "l?=i'e~S1}.age, 2nd Phase,
'--Gc-kul E;:{E'.eriSi011,
B:.mga;3.u:~g~v;4j56o 054.
Sri I~§.vSJ.O:i\/1ada11akesari.
"Aged about 70 years.
" _ 'Residing 211. No.23.
"Raitnaix-aya" Model House,
4" Street. Basavanagudi,
"OB;-mga10re--56O O54.
3. Dr.M.S.A.nantharaju,
Aged about 71 years.
Residing at No.29?/A,
15? Main Road, 8%" Block,
Jayanagzti', BangaIore~560 082.
4. Sri T.S.Azianthapadmanabaiah,
Aged about 73 years.
Residing at No.l033, 27$ Main,
71" Block. Jayanaggar, '
B2mgalore--560 069.
5. Sri H.S.Sampath Kumar,
Aged about 54 years,
Residing at No.301(2l},
3"" Cross. N.R.Colony,A_.. _
Ba1'igalo1'e-560 019. ' ._ f ;RESPONI)ENTS
(By Sri R.S.Ravi. Adv.)
These writ."'-petitions=afe filed uhder Articles 226 and 227
of the Cor1s"£ii:.-utioii at ind'iaA"prayifig"to set aside the order dated
12.3.2009 ;)assedsob_y"'wthetV I-Io_n--'b1e Prl.City Civil and Sessions
Court. ir1"Q.E},_No.703l3t«,/07_.o11ll.A.No.Il at AnI1exure--A and etc.
'l'hesel'petition-s 0c.§ln1..u7jg on for Preliminary Hearing-'B'
Group this day, the Court made the following-
ORDER
1. 0 A .._4’l(C)rde:tlt*l’a,te.cl 12.03.2009 passed by the Principal City Civil
“and sess;__¢m5 Judge, Bangalore, allowing I.A.No.XI filed by the
seeking amendment of the plaint is challenged in this
petition. By the amendment ordered, the Court below has
_. 3 _.
permitted the plaintiffs to add paragraph–22(a) to the plaint
and also to make certain amendments to the prayer column.
2. The main contention of the counsel for the p_etit1’oner’sis
that by amending the plaint the plaintiff is
prayer for appointment of a new t:iist’ee. in.’ resp_e’ct_ of the ‘gnu: j
petitioner–Trust which was not made and, in”
whereof no relief was sought \xzhil_e filing seeking
leave to file the suit. It is hisrl-c*o-ntention thlat”the~’application
itself was not maintainabhle”asl._thgé pflavimiiifs have to proceed
against the 2″” pet’ii.ioner3l’riJst V-afresh petition seeking
leave and oriijf aft:e.r’;’._leai(e_s__is..grantedgthe proceedings against
the Zed”‘pe”i.ii;:ioi1f1er:ttiist”can l)e”‘pnrsued. It is his further
contention. “ma: petitioner–trust is impleaded as
a partyllhv res’pond.e’ntdJ’ in the proceedings in
_Misg:§§l?eti_tios3_.17E§}”2Ci(}5vfi1ed by the plaintiffs seeking leave to
filveihce suit, the said application was allowed by the
com;be1c§x;ei’j::nA’:he miscellaneous proceedings by observing that
‘V the el:§:i.ste.1:V1c.e”or nonexistence of the 21″‘ petitionectriist will be
“:mat.ter”i1’i respect whereof the parties could lead evidence. it
to be noticed that after the suit was registered, an
” ‘applicatio11 was filed seeking to implead the Zed petitioner–Trust
it as defendant No.14. The said application has been allowed.
3. Learnecf counsel for the petitioners referring to the order
passed on 02.09.2008 submits that the question the
2″‘ petitiorier-trust was in existence is a matter-.i1;.__resp’ect
whereof the parties could lead evidence. In
also confirriied the order passed sul::;set1ue’11«tl’y_jon;’ if
VV.P.E\los. 16574 & l6575/20O8. making clearblat ‘Apa;-agréphl.’-5
that the {§i.it?Stl’OI1 whether theit-eilruras anyp called
lvfothikhanc ‘I”himmappaia_h Jain”tfidhjf/airthilfNil’a3?a could be
agitated at an appropriate be for the Trial
Court to l’1’a1nf:’ the same. In the
backgroun<fg'ol v"f3"tlv.:»petitioner– trust is already
iII1plE"£1(_l.'f3til"Nils. question is whether the
present;aiié"cnciir1eiit" by the Trial Court suffers from
any aplriai-vii:.iiiiegali_ty'or'error of jurisdiction so as to warrant
c_vinte}"f'e1*enéta':by l"llZ§Sv…C.Qi_11'f in exercise of the writ jurisdiction.
AEViV'(f.é:lVl'1 –.l_;'=.j~a from the impugned order, particularly the
obseri;r'at'4_iiS1isp:giiade in paragraph–l 1, the Court below has noted
j that ting-2 }:'§aii"i1ii"i" A respondents herein have stated in the plaint
'p–a-._i}'2igli";1pi'1+3(b) that the free residential accommodation
prtotrlitleci was at the Mothikhane Thimmappaiah Jain
.Vl'dl.']}'£ll.'ll'li Nilaya which is referred as Jain Hostel and is
A ChaI'é-1(".l(?I'§':<i'.(Il as a charitable trust established for the benefit of
Jr
imp211't:ing_g education to jain students coming from rural areas.
Apart from the same. as rightly observed by the Trial Court, the
plaim.il"i"s have described in their affidavit filed
plaintiff, the name of Mothikhane Thimmappaiiahl'
Vidhya.rthé Nilaya stating it as M.T.Jajn
Motl1i.khai1'1c;: Thimmappaiah Jairizfi
l\/i.'I'.dai11 l-.:ioa1*ding Home. etc.'lll__V"'~~ it l M if
4. It is not in dispute the sole
trustee and also in sole hostel. It is also
not in dispute tliai. the proplertylin.l:respectTtyhereof the scheme
suit is fi.1ed the 3″‘ defendant +
Society?” llll ‘go-i 2″5_”V’petitioner as an additional
Cl€f€IlClEfill’i’l.’ xjidthe amendment of the plaint that is
sought to !-_.>c=_ri1ade d_oe’s_ notllintroduce any new cause of action,
nor _”(.l’3Qc$__ E r ii-iiroduc.e…altogether a new party in the array of
p3ifL’i:’>s “£,(_:’iH4;.§:i€’_ l’su’it. The dispute remains the same and the
essence of dfiré griexrzince made by the plaintiffs continues to be
‘V the s;}:n;¢=1’- .:;sli’lhc 2*” petitioner~trust, according to the plaintiffs,
“am; (_’lt’s4c’1’%l)eCl by styling it as Mothikhane Thimmappaiah
— Jain’Vticlitiy:;i.:’i..i’ii Nilaya and by other names and as the presence
ofltiw irusi had become necessary such an application was
A made for izimlezaciing and subsequently by carrying out
2%”
n 6 1:
nec£%s;s;e11’y &”1I”I1(‘:’I1dI’]]€I1i. to the plaint. The Trial Court has taken
note of 21% these relevant factors and has rightiy allowed the
app1ic’~ati<.;::. The same does not require interference–'jeisv.I"d.driot
find ;my z.1}.)p21I'(–:n1 illegality in the order passed}
made Clem' by this Court in its
disprisinggj of W. P.I\£'0s. 16574-575/2t3O81'_A_it" ~ ivtlje
defendaiiiss to take such contentiqn by'filing_fieces_Sary Written V
statement and whereupon the 'I_'_1f_iél'1~ ,C01,_1rt wilibe enjoined with
a duty to frame prop-er' _is'suej_' decide the same in
aCC01'(.1€1]1(?(t with lmv. . V
5. With tlficf-ii a1′”§5o§re”‘t1*;’e’ writ petitions are
disniisssi-.ri.”i’ – ‘
Sfiffg
Iuclqe