Karnataka High Court
Shri Giridhar Jamadamal Sachdev vs Shri. Mohansa Gurunathsa Kabadi Since ... on 1 March, 2024
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2024:KHC-D:4758
WP No. 101166 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
WRIT PETITION NO.101166 OF 2023 (GM-CPC)
BETWEEN:
SHRI GIRIDHAR JAMADAMAL SACHDEV,
AGE: 70 YEARS, OCC: BUSINESS,
R/O. 203 E WARD SUNDAR SMRUTI,
NEAR PEARL HOTEL, TARARANI CHOWK,
KOLHAPUR, MAHARASHTRA.
...PETITIONER
(BY SRI MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
AND:
SHRI MOHANSA GURUNATHSA KABADI,
SINCE DEAD BY HIS LR'S.
1. SHRI VISHAL MOHANSA KABADI,
AGE: 35 YEARS, OCC: BUSINESS,
R/O. H. NO.1457,
BESIDE MARUTI TEMPLE,
BELAGAVI-590002
2. SHRI SAGAR MOHANSA KABADI,
BHARATHI
HM AGE: 33 YEARS, OCC: BUSINESS,
R/O: H. NO.1457,
Digitally signed by
BHARATHI H M
Location: HIGH COURT
BESIDE MARUTI TEMPLE,
OF KARNATAKA
DHARWAD BENCH
Date: 2024.03.05
14:45:53 +0530
BELAGAVI -590002.
3. MRS. SHILPA W/O. GOPAL BURBURE,
AGE: 34 YEARS, OCC: HOUSE WORK,
R/O: PLOT NO.3,
GANGADHAR HOUSING SOCIETY,
HOTAGI ROAD, SOLAPUR-413001,
STATE: MAHARASHTRA.
4. MS. SHEETAL W/O. RACIL HABIB,
AGE: 26 YEARS, OCC: HOUSEHOLD WORK,
R/O: 45, 4TH CROSS, J.C. NAGAR,
HUBBALLI-580008.
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NC: 2024:KHC-D:4758
WP No. 101166 of 2023
5. SMT. GEETA W/O. MOHANSA KABADI,
AGE: 47 YEARS, OCC: BUSINESS,
R/O: 2847/1, SANYUKTA MAHARASHTRA CHOWK,
KHADEBAZAR, BELAGAVI-590002.
6. SMT. JAYASHREE W/O. SATISH,
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
R/O: CTS NO. 108, MANGALVAR PETH,
TILAKWADI, BELAGAVI-590002.
7. SMT. ASHA W/O. AJIT TURAMARI,
AGE: 41 YEARS, OCC: HOUSEHOLD WORK,
R/O: CTS NO. 108, MANGALVAR PETH,
TILAKWADI, BELAGAVI-590002.
8. SHRI MANJU SHANKAR MOGAVEER,
AGE: 31 YEARS, OCC: BUSINESS,
R/O: CTS NO.1819/A SECOND FLOOR,
PANTAJI APARTMENT,
BAPAT GALLI, BELAGAVI-590001.
9. SHRI JAYADEEP MANOHAR BHOSALE,
AGE: 36 YEARS, OCC: BUSINESS,
R/O; CTS NO.4485, CHAVAT GALLI,
BELAGAVI-590 010.
10. SHRI MAKUNDLAL K. AGARWAL,
AGE: MAJOR, OCC: BUSINESS,
R/O: CTS NO.3159/1A,
KHADEBAZAR ROAD, BAPAT GALLI,
BELAGAVI- 590001.
...RESPONDENTS
(BY SMT. V. VIDYA, ADV. FOR R1, 2, 4 & 5;
SRI MAHANTESH S. HIREMATH, ADV. FOR R8-10;
R3 & R7 SERVED;
R6 DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI QUASHING THE IMPUGNED ORDER DATED 01.12.2022
PASSED BY THE I ADDL. SENIOR CIVIL JUDGE BELAGAVI IN S.C. NO.
39/2013 WHICH IS PRODUCED AT ANNEXURE-F AND
CONSEQUENTLY ALLOW THE IMPLEADING APPLICATION FILED BY
THE PETITIONER PRODUCED AT ANNEXURE-D.
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NC: 2024:KHC-D:4758
WP No. 101166 of 2023
THIS PETITION IS COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. This writ petition is filed seeking for following reliefs.
a. Issue a writ of certiorari quashing the impugned order dated 01.12.2022 passed by the I Addl. Senior Civil Judge Belagavi in S.C. No.39/2013 which is produced at Annexure-F and consequently allow the impleading application filed by the petitioner produced at Annexure-D. b. Issue such other writ, order or order as deemed fit in the interest of Justice and Equity.
2. Sri Mallikarjunswamy B.Hiremath, learned counsel for petitioner submitted that petitioner had filed I.A.no.14 under Order 1 Rule 10 (2) read with Section 151 of Code of Civil Procedure in Small Cause Suit no.39/2013 on file of learned I Addl. Senior Civil Judge, Belagavi for being impleaded proposed defendant no.5. In affidavit filed in support of application, it was stated that petitioner had purchased undivided share from one Smt.Malatibayi, which was part of petition properties herein. It was submitted that there was decree of partition and separate -4- NC: 2024:KHC-D:4758 WP No. 101166 of 2023 possession granted in a suit to which petitioner's vendor was a party. It was submitted, final decree was drawn in FDP no.14/1990 and E.P.no.139/2014 (at present renumbered as E.P.no.177/2022) was filed for executing same on file of I Additional Sr.Civil Judge, Belagavi. It was submitted, during its pendency respondents no.1 to 5 herein had filed Small Cause Suit no.39/2013 against respondents no.6 to 10 for relief of ejectment. It was alleged that subject matter of said suit included portion of petition property herein and in which petitioner was granted share in FDP no.14/1990. In view of same, petitioner would be affected by decree that may be passed in present suit. On said ground, application was filed.
3. It was submitted, though, application was filed in accordance with law, under impugned order, Trial Court had rejected it on untenable grounds. It was submitted, in guise of ejecting tenant, plaintiff in Small Cause Suit no.39/2013 was trying to take possession of property and thereby frustrate Execution Petition filed by petitioner and -5- NC: 2024:KHC-D:4758 WP No. 101166 of 2023 therefore, sought for quashing order and for allowing application.
4. On other hand, Smt.V.Vidya, learned counsel for respondents no.1,2, 4 and 5 sought to oppose writ petition. It was submitted, present suit was a simple suit for ejectment of tenant by landlord. Only rights that would be determined in said suit would be entitlement of tenant to continue. To such suit, petitioner would not be a necessary party, as petitioner was independently prosecuting execution proceedings for determination of his rights and that Trial Court had rightly dismissed petitioner's application. On said ground, sought for dismissal.
5. Heard learned counsel for petitioner and respondents and perused writ petition records.
6. From above, main controversy in this petition is whether petitioner would be affected by any decree to be -6- NC: 2024:KHC-D:4758 WP No. 101166 of 2023 passed in present proceedings and as such, he would be necessary party.
7. As rightly contended by learned counsel for respondents, only determination in suit for ejectment is whether a notice under Section 106 of Transfer of Property Act is issued and whether respondent has right to continue. Said determination would not in any manner to affect petitioner's right. Admittedly, petitioner is independently prosecuting E.P.no.177/2022.
8. Therefore, with observation that Petitioner would be at liberty to pursue execution proceedings without being affected by any decree to be passed in Small Cause Suit no.39/2013, filed by respondents no.1 to 5 before I Additional Senior Civil Judge, Belagavi, writ petition stands dismissed.
SD/-
JUDGE AM List No.: 1 Sl No.: 25