State Consumer Disputes Redressal Commission
Shri K. Rajugouda, Chairman, Aged About ... vs Sri. Pandu Basavanthappa Kadam Rep. By ... on 22 March, 2024
1 Appeal No.1581 & 1582/2022
Date of Filing : 16.07.2022
Date of Disposal : 22.03.2024
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED THIS THE 22nd DAY OF MARCH 2024
PRESENT
HON'BLE Mr.JUSTICE HULUVADI G RAMESH : PRESIDENT
Mr. K.B.SANGANNANAVAR : JUDICIAL MEMBER
Mrs. M.DIVYASHREE : LADY MEMBER
APPEAL NOs.1581 & 1582/2022
K.Rajugouda,
Aged about 52 years
Chairman,
Kalabhairaveshwara Krupa Credit
Souharda Sahakari Niyamit,
Near Head Post Office,
U.B.Hill, Dharwad.
Also at: Post Kebbanahalli,
Tq Krishnaraj Pet,
Dist Mandya. ..Appellant in both appeals
(By Adv.Sri.Mohan Malge)
Vs
1. Pandu Basavanthappa Kadam
Rep. by His LR's
1a. Geeta
W/o Pandu Kadam
Aged about 60 Years,
Occ: Household
1b. Basavaraj
S/o Pandu Kadam,
Aged about 44 Years,
2 Appeal No.1581 & 1582/2022
Occ: Household.
1c. Girija Geeta
W/o Lokesh Ullikashi,
Aged about 36 Years,
Occ: Household.
1d. Naveen
S/o Pandu Kadam,
Aged about 34 Years,
All are R/At:
Nagashree Building,
Near Toll Naka,
Dharwad. ..Respondents in both appeals
(By Adv.Sri.SBK)
COMMON ORDER
BY Mr.K.B.SANGANNANAVAR : Pri.Dist & Session Judge (R) - JUDICIAL MEMBER.
1. These two appeals filed U/s.73(1) of CPA 2019 by Jdr.1/OP.1/Appellant/K.Rajugouda aggrieved by the order dtd.27.09.2021 passed in Criminal-cum-Application/EA Nos.97 & 98/2017 on the file of Dharawada District Commission. (Parties to the appeal henceforth are referred to their rank assigned to them by the District Commission in EA Nos.97 & 98/2017).
2. The Appellant/Jdr.1/Accused Mr.K.Rajugouda, the Chairman of Kalabhairaveshwara Krupa Credit Souharda Sahakari Niyamita, Dharawada has sought for setting aside the order 3 Appeal No.1581 & 1582/2022 dtd.27.09.2021 passed in Criminal-cum-Application/EA No.97/2017 and he also sought similar such relief in Criminal- cum-Application/EA No.98/2017.
3. The Commission examined the grounds of appeal, impugned order, appeal papers; award dtd.30.08.2017 passed in CC/181 & 182/2016 and heard the learned counsels.
4. Now, the point that arises for consideration would be, whether impugned order does call for an interference of this Commission for the grounds set out in the appeal memo?
5. Let us extract the order dtd.27.09.2021 as found from EA/97/2017 proceedings as follows:
Dhr: SRG - LR.1b is present, Dhr.1:MAP - absent, Dhr.2:AB, for objections to IAs.1 to 3, Jdr.1 and advocate absent, objections to IAs.1 to 3 taken as not filed, heard on IAs, Order: IAs.1 to 3 are allowed - For amendment and amended copy of EP by 25.10.2021 - signed by President and Members.
6. We have to bear in mind the award is not passed in suit for partition. No doubt, Order 1 Rule 10 (6) of CPC provides for transposition of defendant as plaintiff/Dhr as the case may be, but facts remain Mr.Basavaraja Kadam, at the relevant time was Manager of OP.1 and he was arrayed as OP.2/Jdr.2. In such circumstances, on the ground that he is also one of the 4 Appeal No.1581 & 1582/2022 LR's of deceased of Dhr cannot be transposed to the position of Dhr along with other LRs. In our view, what is required to prosecute the proceedings would be participation and when he is already on record as one of JDr no harm would be caused to him by not transposing to the position of one of the Dhr due to death of his father.
7. In view of the above paragraphs in EA/98/2017, not necessary to reproduce the proceedings, since similar order is passed by the executing commission. Learned counsel for Appellant herein submits that Mr.Basavaraj Kadam S/o Pandu Kadam claiming to be one of the LR of deceased Dhr/Pandu Kadam, who is admittedly, his father. In other words, Mr.Basavaraj Kadam S/o Pandu Kadam is Jdr.2 in both execution matters cannot be transposed as one of the Dhr after death of Mr.Pandu Basavantappa Kadam/Complainant/Dhr, as such we found legal force in the contentions of Appellant. On the contrary, learned counsel for Respondent herein would submit that Executing Commission has rightly permitted LR's of Pandu Basavantappa Kadam, as his LRs and rightly allowed IAs.1 to 3, but facts remain found from the award passed in CC/181 & 182/2016 the Complainant/Mr.Pandu Basavantappa Kadam has obtained awards in EAs and in Criminal petitions, wherein 5 Appeal No.1581 & 1582/2022 shown Basavaraj, is one of the son of the deceased claimant Mr.Pandu Basavantappa Kadam, at the relevant time was the Manager of Kalabhairaveshwara Krupa Credit Souharda Sahakari Niyamita, Dharawada and the said Manager was arrayed as OP.2. In other words, he is Jdr.2 in both EAs and in such circumstances, although Executing Commission rightly permitted him as one of the LRs of Pandu Basavantappa Kadam to come on record as claimants/Dhrs, but did not notice the fact that he is already on record in another capacity as JDr no.2. In other words facts remain LR.1b Basavaraj S/o Pandu Basavantappa Kadam, is shown at the relevant time, as Manager, as such he cannot be permitted to come on record as one of the claimant along with LR1a, 1c & 1d for the simple reason transposition of Jdr cannot be permitted, since Commission while on execution not to add a person as party in a case when claimant opposed to such addition and the claimant in the cases rightly opposed was not considered by the executing commission is not appreciated. We have to understand the rationale behind this is that, Complainant/claimant/Dhr as the case may be is the dominant litigant and without his consent he cannot be added. 6 Appeal No.1581 & 1582/2022
8. In so far as the question of impleadment of the party has to be decided as provided under Order 1 Rule 10 of CPC and only a necessary or a proper party may be added. The necessary party is one without whom no order can be made effectively, whereas, on facts in these two appeals, when Mr.Basavaraj Kadam shown to be the Manager/Jdr.2, who is already on record as one of the LRs of the Complainant in both complaint and his impleading as one of LRs of Dhr as one of Dhr does not arise at all. We have to observe herein in order to bring LRs of Pandu Basavantappa Kadam, in so far as Geetha W/o Pandu Kadam, Girija Geetha W/o Lokesh Ullikashi, Naveen S/o Pandu Kadam are concerned could be held right as they are LRs in both EAs and to that affect, impugned order passed by Executing Commission dtd.27.09.2021 has to be held right but in so far as JDR No.2 is concerned has to be set-aside by modifying the order. Accordingly, disposed off both appeals and directed the Executing Commission to bring Geetha W/o Pandu Kadam, Girija Geetha W/o Lokesh Ullikashi, Naveen S/o Pandu Kadam as Dhrs.1a, 1b & 1c respectively and directed to continue the status of Mr.Basavaraj Kadam S/o Pandu Kadam as one of the LRs of Dhr/Complainant/Pandu Kadam, who is already on record as OP.2/Jdr.2 and accused no.2 in Criminal-cum- 7 Appeal No.1581 & 1582/2022 Application/EA Nos.97 & 98/2017 and in CC/181 & 182/2016 respectively.
9. It is hereby clarified to the District Commission, when JDR No.2 is already on record in another capacity in the proceedings and his position shall not be transposed to the position of DHR.
10. The District Commission is directed to implement the above order and proceed to execute the award in accordance with law.
11. The amount in deposit is directed to be transferred to the District Commission for needful.
12. Keep the original order in Appeal No.1581/2022 and the copy in connected A/1582/2022.
13. Notify copy of this Order to the District Commission and parties.
Lady Member Judicial Member President *NS*