Karnataka High Court
The Methodist Episcopal Church In ... vs Shri Rajendra S/O Bhanudas Kulkarni on 12 December, 2024
-1-
NC: 2024:KHC-D:18127
WP No. 105234 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 12TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.105234 OF 2024 (GM-CPC)
BETWEEN:
THE METHODIST EPISCOPAL
CHURCH IN SOUTHERN ASIA
115 MAHATMA GANDI ROAD,
AMERICAL EXPRESS BUILDING FORT MUMBAI
NOW AT MISSION COMPOUND BELAGAVI
REPRESENTED BY ITS PRESIDENT
SHRI. DINKAR S/O0=. SAMUEL CHILAL,
AGE: 74 YEARS, OCC: SOCIAL SERVICE,
R/O: PLOT NO.14, PIPELINE ROAD, VIJAY NAGAR,
HINDALAGA BELAGAVI - 590 001.
...PETITIONER
(BY SRI V.P.KULKARNI, SENIOR COUNSEL FOR
SRI GIRISH A. YADAWAD, ADVOCATE)
AND:
1. SHRI RAJENDRA
Digitally signed
/O. BHANUDAS KULKARNI,
by JAGADISH T
R
AGE: 72 YEARS, OCC: BUSINESS,
Location: High R/O: TILAKAWADI, BELAGAVI
Court of
Karnataka TQ: DIST: BELAGAVI - 590 001.
2. SMT. SHOBHA
W/O. SHANKAR MUNAVALLI,
AGE: 68 YEARS, OCC: HOUSEHOLD WORK,
R/O: SHOBHA NILAYA, 7TH CROSS,
SHASTRI NAGAR, BELAGAVI
TQ: DIST: BELAGAVI - 590 001.
3. SHRI RAGHAVENDRA
S/O. SHANKAR MUNAVALLI,
AGE: 49 YEARS, OCC: BUSINESS,
R/O: SHOBHA NILAYA, 7TH CROSS,
SHASTRI NAGAR, BELAGAVI
-2-
NC: 2024:KHC-D:18127
WP No. 105234 of 2024
TQ:DIST: BELAGAVI - 590 001.
4. SMT. ASHWINI
D/O. SHANKAR MUNAVALLI,
AGE: 46 YEARS, OCC: PRIVATE SERVICE,
R/O: SHOBHA NILAYA, 7TH CROSS,
SHASTRI NAGAR, BELAGAVI
TQ:DIST: BELAGAVI - 590 001.
5. SHRI. KIRANT
S/O. SHANKAR MUNAVALLI,
AGE: 44 YEARS, OCC: BUSINESS,
R/O: SHOBHA NILAYA, 7TH CROSS,
SHASTRI NAGAR, BELAGAVI
TQ:DIST: BELAGAVI - 590 001.
6. SHRI RANGNATH
S/O. SHANKAR KULKARNI,
AGE: 48 YEARS, OCC: BUSINESS,
R/O: VIVEKANAND NAGAR,
GOKUL ROAD, HUBBALLI,
TQ: HUBBALLI,
DIST: DHARWAD - 580 009.
7. SMT. VASUDHA
W/O. VINAYAK DESHPANDE,
AGE: 87 YEARS, OCC: HOUSEHOLD WORK,
R/O: OM SAI TIRTH CO-OP HOUSING SOCIETY LTD.,
VASUDEV PHADKE ROAD,
KULAGAON, BADLAPUR (E)
DIST: THANE,
MAHARASHTRA STATE - 400 080.
8. SHRI DATTATRAY
S/O. VINAYAK DESHPANDE,
AGE: 59 YEARS, OCC: SERVICE,
R/O: OM SAI TIRTH CO-OP HOUSING SOCIETY LTD.,
VASUDEV PHADKE ROAD,
KULAGAON, BADLAPUR (E)
DIST: THANE,
MAHARASHTRA STATE - 400 080.
9. DHAMMANAGI AND
SANU DEVELOPERS PVT. LTD.,
REPRESENTED BY ITS CHAIRMAN
SHRI. BABU S/O. ADIVEPPA DHAMMANAGI,
-3-
NC: 2024:KHC-D:18127
WP No. 105234 of 2024
AGE: 73 YEARS,
OCC: BUSINESS AND AGRICULTURE,
R/O: BAILHONGAL, TQ: BAILHONGAL,
DIST: BELAGAVI - 591 102.
10. DHAMMANAGI AND
SANU DEVELOPERS PVT.LTD.,
REPRESENTED BY ITS MANAGING DIRECTOR
SHRI. HARSHA S/O. BABU DHAMMANAGI,
AGE: 42 YEARS,
OCC: BUSINESS AND AGRICULTURE,
R/O: BAILHONGAL, TQ: BAILHONGAL,
DIST: BELAGAVI - 591 102.
11. SMT. SAROJINI
W/O. SHASHISHANKAR KULKARNI,
AGE: 78 YEARS, OCC: RETIRED TEACHER,
R/O: HOUSE NO.1420, BASAWAN GALLI,
BELAGAVI,
TQ: DIST: BELAGAVI - 590 001.
12. SMT. MEGHANA
W/O. GURURAJ KULKARNI,
AGE: 65 YEARS, OCC: SERVICE,
R/O: HOUSE NO.2407/2,
SHRI KRISHNA KUTEER,
NITYANANAD NAGAR, MANDOLI ROAD,
BELAGAVI, TQ: DIST: BELAGAVI - 590 001.
13. DR. PRASANNA S
/O. SHASHISHEKHAR KULKARNI,
AGE: 63 YEARS, OCC: DOCTOR,
R/O: HOUSE NO.1420, BASAWAN GALLI,
BELAGAVI, TQ: DIST: BELAGAVI - 590 001.
14. SHRI. AMAR S/O. SHASHISHANKAR KULKARNI,
AGE: 59 YEARS, OCC: SERVICE,
R/O: FLAT NO.103, 1ST FLOOR,
SHRI GURU SARANAM APARTMENT
TINDLU MAIN ROAD, VIDYARANYAPUR POST,
OPPOSITE HARIHARA MEDICALS.
BENGALURU NORTH - 560 097.
15. THE METHODIST CHURCH
IN SOUTHERN ASIA,
(D-20) ROBINSON MEMORIAL
-4-
NC: 2024:KHC-D:18127
WP No. 105234 of 2024
BYCULLA MUMBAI
BY ITS CHAIRMAN/SECRETARY - 400 004.
16. THE EXECUTIVE BOARD OF
METHODIST CHURCH IN INDIA,
A REGISTERED TRUST
REPRESENTED BY THE
DISTRICT SUPERINTENDENT
REV. ALEXANDRA SIERMON
AGE: 71 YEARS, OCC: SERVICE,
R/O: METHODIST MISSION COMPOUND
COURT ROAD, BELAGAVI,
TQ AND DIST: BELAGAVI - 590 001.
...RESPONDENTS
(BY SRI ANANT MAMALAGI, SENIOR COUNSEL FOR
SRI CHETAN MUNNOLI, ADVOCATE FOR C/R9;
SRI S.G.KADADAKATTI AND L.V.KATTEMANE,
ADVOCATES FOR R16)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO, ISSUE A WRIT OF
CERTIORARI QUASHING THE IMPUGNED ORDER DATED 18/04/2024
PASSED BY THE LEARNED III ADDITIONAL CIVIL JUDGE AND JMFC,
BELAGAVI ON IA NO.LXVIII IN OS NO.16/2009 VIDE ANNEXURE-A.
ISSUE A WRIT OF CERTIORARI QUASHING THE IMPUGNED ORDER
DATED 18/04/2024 PASSED BY THE LEARNED III ADDITIONAL CIVIL
JUDGE AND JMFC, BELAGAVI ON IA NO.LXXI IN OS NO.16/2009
VIDE ANNEXURE-A1 AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
-5-
NC: 2024:KHC-D:18127
WP No. 105234 of 2024
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA) The present writ petition is filed calling in question the orders dated 18.04.2024 passed on I.A.Nos.68 and 71 in O.S.No.16/2009 by the III Additional Civil Judge and JMFC, Belagavi1.
2. The relevant facts in a nutshell are that O.S.No.16/2009 has been filed for injunction. The respondents No.1 to 14 herein are the original plaintiffs/their legal representatives. The petitioner was arrayed as defendant No.1 and respondents No.15 and 16 were arrayed as defendants No.2 and 3 in the suit. The said suit was originally instituted by plaintiff No.1 and subsequently the other plaintiffs have come on record. I.A.No.68 has been filed under Section 151 of the Code of Civil Procedure2 by the petitioner/defendant No.1 to dismiss the suit as not maintainable. I.A.No.71 has been 1 Hereinafter referred to as 'Trial Court' 2 Hereinafter referred to as 'CPC' -6- NC: 2024:KHC-D:18127 WP No. 105234 of 2024 filed under Order I Rule 10(2) read with Section 151 of the CPC by plaintiffs No.7 and 8 seeking to strike out defendant No.1 from the suit. The plaintiff opposed I.A.No.68 and the defendant No.1 opposed I.A.No.71. The Trial Court by its orders dated 18.04.2024 (Annexures-A and A1 respectively to the writ petition) dismissed I.A.No.68 and allowed I.A.No.71. Being aggrieved, the present writ petition is filed.
3. Heard the submissions of learned counsel, Sri.V.P.Kulkarni appearing along with learned counsel, Sri.Girish A Yadawad for the petitioner and learned Senior counsel, Sri.Anant Mandagi appearing along with learned counsel, Sri.Chetan Munnoli for the caveator respondent No.9.
4. It is the vehement contention of the learned counsel for the petitioner that the Trial Court erred in allowing I.A.No.71 having regard to the fact that the petitioner/defendant No.1 has already filed written statement and was entitled to contest the suit on merits. -7-
NC: 2024:KHC-D:18127 WP No. 105234 of 2024 It is further contended that the suit was originally filed by plaintiff No.1 in the year 2009 who had died in the year 1994 itself. It is further contended that the defendant No.1 having raised various contentions on the merits of the matter, the Trial Court erred in allowing I.A.No.71 when the plaintiff had arrayed defendant No.1 as a party to the suit.
5. Per contra, learned Senior counsel for the caveator respondent No.9 contends that the petitioner is not the first defendant in the suit and has come into existence only in the year 2003. Reliance is placed on a copy of the Certificate of Registration dated 23.03.2023 (Annexure-K to the writ petition). It is further contended that the subject matter of the suit has been litigated up to the Hon'ble Supreme Court, and that the Hon'ble Supreme Court vide order dated 13.11.2017 passed in Special Leave to Appeal (C) Nos.14228-230/2017 (Annexure-F to the writ petition) had permitted the appellant before the Hon'ble Supreme Court who was defendant No.3 in the -8- NC: 2024:KHC-D:18127 WP No. 105234 of 2024 suit to contest the suit by filing written statement and the Hon'ble Supreme Court had observed that the Trial Court would be required to make an endeavour to deliver judgment of the suit in six months. It is further contended that after the trial having been completed and the proceedings in the suit was at the stage of final arguments, the petitioner claiming to be the successor of the defendant No.1 has filed written statement and is attempting to contest the suit.
6. It is further contended that the Hon'ble Supreme Court vide order dated 30.09.2024 had refused to entertain I.A.No.198925/2024 filed by the present petitioner and the present petitioner has no locus standi and is not a necessary party to the suit. It is further pointed out that in para no.9 of the plaint, the plaintiff had averred that the defendant No.1 is only a formal party to the suit and that the plaintiff had filed a memo at the inception of the suit in the year 2009 itself to delete defendant No.1 from the array of parties and the said -9- NC: 2024:KHC-D:18127 WP No. 105234 of 2024 memo not having been ordered upon by the Trial Court, the plaintiffs No.7 and 8 have filed I.A.No.71 to delete defendant No.1 which has been rightly ordered upon by the Trial Court.
7. Responding to some of the submissions, learned counsel for the petitioner contends that I.A.No.71 having been filed only by the plaintiffs No.7 and 8, the same ought not to have been accepted by the Trial Court. It is further contended that the Trial Court having allowed I.A.No.67 filed by the defendant No.1 and having taken the said written statement on record, ought not to have allowed I.A.No.71.
8. The submissions made by both the learned counsel have been considered and the material on record have been perused.
9. At the outset, it is relevant to note that vide I.A.No.68 filed under Section 151 of the CPC the defendant No.1 has sought to dismiss the suit is not
- 10 -
NC: 2024:KHC-D:18127 WP No. 105234 of 2024 maintainable. Various averments have been made on the factual aspects of the matter and pleadings of the parties have been referred to in detail while seeking for dismissal. In the said application, it is not stated as to whether the plaint is barred under any specific stipulation of Order VII Rule 11 of the CPC. Considering the said application, the Trial Court has noticed that the grounds urged in the said application are not sufficient to dismiss the suit and the said contentions are required to be adjudicated upon.
10. Having regard to the nature of averments made in I.A.No.68, the Trial Court was justified in rejecting the said application.
11. I.A.No.71 has been filed by plaintiffs No.7 and 8 under Order I Rule 10(2) read with Section 151 of the CPC to strike out defendant No.1 from the suit. In the affidavit filed in support of the application, it is deposed that the defendant No.1 is not a necessary party or proper party and that the defendant No.1 was not in existence as on date of the suit and hence the presence of defendant No.1
- 11 -
NC: 2024:KHC-D:18127 WP No. 105234 of 2024 is unnecessary. It is further alleged that one Sri.Dinakar S/o Samuel Chilal claiming to be the Chairman of defendant No.1 has filed the written statement when the suit was posted for arguments and that various applications have been filed only to prolong the litigation. The defendant No.1 has filed objections to I.A.No.71 contending that the plaintiffs No.7 and 8 themselves have considered defendant No.1 as a permanent lessee of the suit properties and admitted its possession. It is further contended that the other plaintiffs have also admitted the existence of defendant No.1 and its alleged interference.
12. The Trial Court while considering I.A.No.71, has noticed that the suit is only for permanent injunction and since the plaintiffs do not want to continue the suit against defendant No.1, the Court cannot force the plaintiff to continue the suit against defendant No.1. The Trial Court has further noticed that the scope of the suit is limited to prove the possession of the plaintiff of the suit property and the interference by the defendants. Hence, the Trial
- 12 -
NC: 2024:KHC-D:18127 WP No. 105234 of 2024 Court has recorded a finding that the plaintiffs having filed the memo to delete defendant No.1 in the suit and having subsequently filed the application, defendant No.1 is required to be deleted as he is not a necessary or proper party to the suit.
13. Although various contentions have been raised by both the learned counsels and various factual aspects have been placed on record with regard to the existence or otherwise the plaintiff/defendant No.1, as also with regard to the litigation pending before the Hon'ble Supreme Court, it is relevant to note that in the plaint the plaintiffs have specifically averred that defendant No.1 is a formal party and the plaintiffs have sought for relief of injunction only against defendant No.2. It is further relevant to note at paragraph No.9 of the plaint that the plaintiff has specifically averred that defendant No.2 is not concerned of the properties and is trying to grab the properties and institutions earlier held by defendant No.1.
- 13 -
NC: 2024:KHC-D:18127 WP No. 105234 of 2024
14. It is further pertinent to note here that the Trial Court has also noticed that at the inception of the suit itself a memo dated 09.4.2009 was filed stating that the plaintiffs have not sought for any reliefs against the defendant No.1 and sought for dismissal of the suit as against defendant No.1 as not pressed. However, no orders were passed by the Trial Court on the said memo.
15. The plaintiffs being the dominus litis, it is for the plaintiffs to array the parties that they deemed fit to the suit vis-a-vis the reliefs sought for by the plaintiffs. Although it is the vehement contention of the learned counsel for the petitioner that I.A No.LXXI has only been filed by plaintiff Nos.7 and 8, it is forthcoming that the plaintiff Nos.7 and 8 have come on record pursuant to I.A No.XXVI having been allowed vide order dated 21.11.2015 and there is no conflict of interest inter se amongst the plaintiffs.
16. Although it is the vehement contention of the learned counsel for the petitioner that the defendant No.1
- 14 -
NC: 2024:KHC-D:18127 WP No. 105234 of 2024 having been permitted to file written statement, cannot be struck off from the array of parties, it is pertinent to note here that merely because defendant No.1 was a party to the suit, he was permitted to file the written statement.
17. In any event, if defendant No.1 seeks to assert any manner of right, title or interest in respect of the suit properties, the remedies available under law are always open to defendant No.1 to protect its interest.
18. In view of the aforementioned, the petitioner has failed in demonstrating any error in the order dated 18.04.2024 passed on I.A No.LXXI in O.S No.16/2009 by the III Additional Civil Judge and JMFC, Belagavi which warrants interference of this Court in this writ petition.
19. Hence, the above writ petition is dismissed as being devoid of merit.
Sd/-
(C.M. POONACHA) JUDGE SH upto para 12 PMP/CT-ASC/List No.: 1 Sl No.: 107