IN THE HIGH COURT OF KARNATAKA AT__E?§l\NC§.A~i:,¢R._E"
DATED THIS THE 20"" DAY OF AU.G-US T,. go; o_ _: "
BEFORE f:
THE HON'BLE MR. JUSTTCOTE A.i'\E"...§'/'ENUC.fJ:VP;§35#A.V§¢3WDA:i"
WRIT PETITION NO':2'2_'816V/2O"10._E$f§¥-(ifPC)
BETWEEN: X
Sr} D.M.Chandrappa,
Son Of Dodda_yy,3ppa',' " _
Aged about"54"D:vYears1;. 4'
Residingat"MeTeL:ote, " V. E
Tubagere Hoibié, T _ «_
DoddVaTb.ai!"ap_ur;>:s--I;Ta_fu--k; '
BangaloréO'RL$.rai E)ist.riCt,
. . ---- ...PETITIONER
(By M'/As. Mylar.aiah~.Ass.Ocia'tes, Advs.)
ANDD;
" _ M u--ralidiTa T} "" 'A 'V
, . :3Orsoo*f_KT,ishnappa,
"Ag_'ed_ abo_u{.32 years,
" .__Resir1'iv»n_gjat C/o.B.\/.Ramakrishnappa,
" Door !\io.'191, 15' Cross,
Ve'nug'opafaswamy»Temple Road,
Bangafore.
A Sridhar,
' "Son of Krishnappa,
Aged about 30 years,
Residing at C/o.B.V.Ramakrishnappa,
Door No.191, 1" Cross,
Veraugopalaswamy Temple Road,
Bangalore.
8. Smt. Mahadevamma,
W/o. Sri Venkateshaiah,
D/o. l-ianumantharayappa,
Aged about 44 years, 1 * ._
Residing at Meiekote Village, .
Tubagere Hobli,
Doddaballapura Taluk.'
2. "v..2.'.=RE;i5l2(§NDENTS
This writ petition is f.ii'ed*u'nder._Articles 226 & 227 of
the Constitution of India, pra§;_'ing"'*~tovvi quash the order dated
16.6.2010
passed on I_gA.N-o~.VI i_n2l’O_’;S.i$io.9/2006 by the
Learned Civil 3udge._..(S–.r..Dna.)_ Dc;dda,ballapura, as per
Annexure – G: and thereby dismijss the application filed by
the responci’ent}:js~i?sio.6″– D_efenda~nt’ No”.”6 under Order I, Rule
10(2) read’ \Jvi.tFr–..S’e_ctio_ij~,1’E1.’o_f’t~he.«Code of Civil Procedure.
_T.his’2″Detit:i::n.coining’o’n~~for preliminary hearing this
day,,the comet n_1ade~th’e. _foi_lo’wing.
2s2bRDER
Plaintiff isthe-lpetltioner. He has instituted a suit for
‘ ;p’artiatio_n~land”separate possession. 4″‘ defendant flied the
2’ ‘written’ stajtefrnent. 6″ defendant has filed separate written
sta.t’e.r.nent24which is at Annexure–C and was adopted by
defendants 7 and 8. He has contended that, the suit
lip-Eropierties are joint family properties and the plaintiff has
“Tiled the suit without including all the legal heirs of late
Mariyanna and his sons and the suit is intended to take
\/~ .
J
away the shares of le al heirs of late “Kaj’ri~va’r’2rna.,.
Marishamanna and Doddalappayand tha_t”h’e”i:s’;val’so,’jentitled5
to a share in the suit properties and.
Court fee for his share. He has stated that’.:thfe_ipl»a.in’tiffeand
defendants 1 to 5 alone r.iVght”to clavirnsihare in the
suit properties_inciud_i_h«g the of Kariyappa and
Marishamannaf Defendant order 1 Rule
10(2) r/w as the additional
plaintiff, the prayer in the said
consideration of the
recordleoif support from the decision of
this.Courtu”‘in:VA’the case’ of K.L.Sl-HVANANJAMURTHY vs.
(2fJfVO’§HA(6) KLJ 174), has found merit in the
has allowed I.A.6. Defendant 6 was
ord_eredc-tot-eh transposed as plaintiff by paying necessary
Courtfepye. The said order has been questioned in this writ
“_i»”$.l.I/”.’?f.”i’9″‘
2. Sri Siddamallappa, learned counsel appearing for
the petitioner would contend that, the order is irrational
/”
/°
and illegal. Learned counsel submitted tha-ti; .
“d’efend,a ht
was not impleaded as a party to the p’roc’eedin”g’s,,_”_thegiot;
himself impleaded as additionatdefendarit_’a~nd
not open to him to seek-l.i:_rans’posVitfon”asA~~.;pl~ai.nt:iff and
continue the suit.
3. I have perused .ethe”-writ’
“;mi[e¢rioiieiiiiea to I.A.6 and the
4. A ‘this;
stand the writ petition would
defendants 1 to 5 are now
saiiind”«together_.ia:nd’:’areLV”‘d’esirous of partitioning the suit
pF0p.ertieS4″4i::7’:i()l’i§’St thesmseives. However, 6″‘ defendant
hayixriing-.”ifiied,the written statement has contended that the
ancestral properties and he is also
er’i.ti’tled,to_ share. In the written statement itself he has
taken” stand that, he is prepared to pay separate Court
“‘–“_’s’ee’ and obtain his share. In the circumstances and in View
oi’ the decision in the case of K.L.SHIVANANJAMURTHY
(supra), the Trial Court has found merit in the application
and has allowed the same. \g/
/J
is it
5. In the case of R.S.MADDANAPPQ.l(lj}fr;Efil’SED)”
AFTER HIM sv HIS LEGALMREPR’ES’E’i\l5f?(fi”»’.ES is-.3/ks…
CHANDRAMMA AND ANOTHER, ‘rises’ if
transposition of defendant»?-s._.a co}plaintift”‘Q§a»sj’n–ot allowed
by the Courts below. ra.i.Se€l.e__bY,i§ the other
defendants was not A..e_orrec3tly;_conisigdemd and while curing
the technical defect, it..has..be.e_n_hei’d as1v,.fo.Ilows:
“15. :l\io’fir..regafdinglthellseclond”point, this objection is
pureiyl’Vte.chnical.”=w.5fije’ plainfiff sued for partition of the
_suit_ “the ground that they were
inherifteftijoiiitly’hj?’h_er and by the first defendant and
Kc-laimed– of her share from the other
defendants -whoflwere wrongfully in possession of the
_l ” roperti’es.,l: She also alleged that the first defendant
A did co~»operate in the matter and so she had to
“the suit. The first defendant admitted the
title to half share in the properties and
cigaiined a decree also in her own favour to the extent
‘ofihe remaining half share in the properties. She
if .__eould also have prayed for her transposition as a co»
plaintiff and under O.I R.lO[2) CPC, the Court could
have transposed her as a co»plaint1’ff. The power
under this provision is exercisable by the Court gygn
suo motu. As pointed out by the Privy Council in
4
Bhupendra V.Rajeswar, 58 End App 228;-XAIR’V:-:sf:9é3:.l.___Pc
162} the power ought to be exercisedtay
doing complete justice betweer;–the 7pa1jties:».’l’_
legnpliiasis A . 7]:
6. Keeping in View th.e”s.tandA”ta-i§*”‘V”ciel’°’endant
in the written statement fact that ‘theplaintiff and
defendants I to ‘settle the dispute
amongst thernse_lves:,”th’e jvtllstified in allowing
I.A.6 and to transpose
himse_lf_VVas’~,a;’ i’ is no irrational act or
illegality co}n_ml.~tteAll’ti’iiilay:Ath§._l::i’ri_al’t Court, calling for
interference in th=e_wriVt
l:_e.su’i«t, writpetition fails and is dismissed.
HowVe~.-get,’ the petitioner/plaintiff to oppose the
:i:i:l.aim afterthe tralnlsplosition, in accordance with law.
sd/- :
JUDGE