Karnataka High Court
Girijabai vs Sushila And Ors on 8 July, 2022
Author: S. Vishwajith Shetty
Bench: S. Vishwajith Shetty
1 W.P.No.202480/2021
C/w WP No.202478/2021
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE S. VISHWAJITH SHETTY
WRIT PETITION NO.202480/2021 (GM-CPC)
C/W
WRIT PETITION NO.202478/2021
In W.P.No.202480/2021
BETWEEN:
Raju S/o Kashinath Jadav,
Age: 43 years, Occ: Coolie,
R/o Shivajipeth, Vijayapura.
... Petitioner
(By Sri Shivakumar Kalloor, Advocate)
AND:
1. Smt. Girijabai W/o Chandrakant Jadav,
Age: 65 Years, Occ: Household,
R/o Rangarao B.Chavar,
Near Lavanagar Math (Killa),
Bagalkot, Dist: Bagalkot-587101.
2. Sri Anvar S/o Ibrahim Bepari,
Age: 53 years, Occ: Agriculture,
R/o Vijayapur (Mathapati Galli,
Vijayapura).
2 W.P.No.202480/2021
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3. Girimallappa S/o Yamanappa Korawar,
Since deceased by his LRs.
3a) Smt. Mahadevi W/o Girimallappa Korawar,
Age: 63 years, Occ: Household work,
R/o Vijayapura, Banagar Galli,
Jorapur Peth, Vijayapura-586101.
3b) Mallikarjun S/o Girimallappa Korawar,
Age: 43 years, Occ: Agriculture,
R/o Vijayapura, Banagar Galli,
Jorapur Peth, Vijayapura-586101.
3c) Smt. Boramma D/o Girimallappa Korawar,
Age: 43 years, Occ: Agriculture,
R/o Vijayapura, Banagar Galli,
Jorapur Peth, Vijayapura-586101.
3d) Smt. Mallamma D/o Girimallappa Korawar,
Age: 28 years, Occ: Agriculture,
R/o Vijayapura, Banagar Galli,
Jorapur Peth, Vijayapura-586101.
4. Sayyad Tajamullhussain
S/o Sayyadmahiboob Pasha,
Age: 53 years, Occ: Agriculture,
R/o Vijayapura, Badikaman,
Nawab Masjid, Vijayapura-586101.
5. Shivaji S/o Yashvant Kadam,
Since deceased by his LRs.
5a) Rajashree W/o Shivaji Kadam,
Age: 61 years, Occ: Business,
R/o Vijayapura, Upali Burz,
Chandabawadi Road, Vijayapura-586101.
5b) Bhagyashree D/o Shivaji Kadam,
Age: 37 years, Occ: Business,
3 W.P.No.202480/2021
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R/o Vijayapura, Upali Burz,
Chandabawadi Road, Vijayapura-586101.
5c) Dhanshree D/o Shivaji Kadam,
Age: 33 years, Occ: Business,
R/o Vijayapura, Upali Burz,
Chandabawadi Road, Vijayapura-586101.
5d) Ganesh S/o Shivaji Kadam,
Age: 34 years, Occ: Business,
R/o Vijayapura, Upali Burz,
Chandabawadi Road, Vijayapura-586101.
5e) Laxmi D/o Shivaji Kadam,
Age: 31 years, Occ: Business,
R/o Vijayapura, Upali Burz,
Chandabawadi Road, Vijayapura-586101.
5f) Dinesh S/o Shivaji Kadam,
Age: 30 years, Occ: Business,
R/o Vijayapura, Upali Burz,
Chandabawadi Road, Vijayapura-586101.
6. Mahaveer S/o Shankarlal Mehta,
Age: 53 years, Occ: Agriculture & Business,
R/o Rajguru Complex, Mahaveer Road,
Vijayapura-586101.
7. Jayakumar S/o Giridharilal Mehta,
Age: 37 years, Occ: Business,
R/o Rajguru Complex, Mahaveer Road,
Vijayapura-586101.
8. Shabana W/o Mehboob Athani,
Age: 41 years, Occ: Business & Household,
R/o Karmikkuteer KSRTC Colony,
Gang Bavadi, Vijayapura-586101.
... Respondents
(By Sri D.P.Ambekar, ADvocate for R1, R4, R6 & R7;
4 W.P.No.202480/2021
C/w WP No.202478/2021
R3(B), R3(C), R5(D) to R5(E) & R8 are served)
This writ petition is filed under Article 227 of the
Constitution of India, praying to issue writ of certiorari
quashing the impugned order at Annexure-M dated
25.11.2021 allowing I.A.No.VI to VIII on the file of IV Addl.
District Judge, Vijayapura in R.A.No.157/2018 and dismiss
the I.A.No.VI to VIII filed by the respondents, in ends of
justice and equity and etc.
In W.P.No.202478/2021
BETWEEN:
1. Smt. Girijabai W/o Chandrakant Jadav,
Age: 63 Years,
Occ: Agriculture/ Household work,
R/o Bagalkot-587101
... Petitioner
(By Sri D.P.Ambekar, Advocate)
AND:
1. Smt. Sushila W/o Nivratti Jadhav,
Age: 92 years, Occ: Agriculture,
R/o Near Upli Burz, Vijayapur-586101.
2. Suryakant S/o Nivratti Jadhav,
Age: 70 years, Occ: Retired Police,
R/o Pandharpur, Maharashtra-413304.
3. Smt. Yamuna W/o Vijaya Ghate,
Age: 28 years, Occ: Agriculture/ HH work,
R/o Nirmiti Galli Solapur,
Maharashtra-413001.
4. Smt. Minaxi W/o Shailesh Jachak,
Age: 51 years, Occ: HH work,
R/o Baramati, Maharashtra - 413 102.
5 W.P.No.202480/2021
C/w WP No.202478/2021
5. Sri. Raju S/o Kashinath Jadhav,
Age: 38 years, Occ: Coolie,
R/o Shivaji Peth, Vijayapura-586101.
6. Sri. Ramesh S/o Sushan Jadhav,
Age: 37 years, Occ: Coolie,
R/o Shivaji Peth, Vijayapura-586101.
7. Sri Anwar S/o Ibrahim Bepari,
Age: 53 years, Occ: Agriculture,
R/o Mathapati Galli, Vijayapura-586101.
Sri Girimallappa S/o Yamanappa Korwar,
Since deceased by his LRs.
8. Smt. Mahadevi W/o Girimallappa Korwar,
Age: 63 years, Occ: HH work,
R/o Banagar Galli, Jorapur Peth,
Vijayapura-586101.
9. Sri. Mallikarjun S/o Girimallappa Korwar,
Age: 43 years, Occ: Agriculture,
R/o Banagar Galli, Jorapur Peth,
Vijayapura-586101.
10. Smt. Boramma D/o Girimallappa Korwar,
Age: 43 years, Occ: Agriculture,
R/o Banagar Galli, Jorapur Peth,
Vijayapura-586101.
11. Smt. Mallamma D/o Girimallappa Korwar,
Age: 28 years, Occ: Agriculture,
R/o Banagar Galli, Jorapur Peth,
Vijayapura-586101.
12. Sri Sayyadtajamullhussain
S/o Sayyadmahiboob Pasha
Age: 53 years, Occ: Agriculture,
R/o Badikaman, Nawab Majid,
Vijayapura-586101.
Sri Shivaji S/o Yashvant Kadam,
6 W.P.No.202480/2021
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Since dead by his Lrs
13. Smt. Rajashree W/o Shivaji Kadam,
Age: 61 years, Occ: Business,
R/o Upli Burz, Chandabawadi Road,
Vijayapura-586101.
14. Smt. Bhagyashree D/o Shivaji Kadam,
Age: 37 years, Occ: Business,
R/o Upli Burz, Chandabawadi Road,
Vijayapura-586101.
15. Smt. Dhanshree D/o Shivaji Kadam,
Age: 33 years, Occ: Business,
R/o Upli Burz, Chandabawadi Road,
Vijayapura-586101.
16. Sri. Ganesh S/o Shivaji Kadam,
Age: 34 years, Occ: Business,
R/o Upli Burz, Chandabawadi Road,
Vijayapura-586101.
17. Smt. Laxmi D/o Shivaji Kadam,
Age: 31 years, Occ: Business,
R/o Upli Burz, Chandabawadi Road,
Vijayapura-586101.
18. Sri. Dinesh S/o Shivaji Kadam,
Age: 30 years, Occ: Business,
R/o Upli Burz, Chandabawadi Road,
Vijayapura-586101.
19. Mahaveer Shankarlal Mehta,
Age: 53 years, Occ: Agriculture & Business,
R/o Rajguru Complex, Mahaveer Road,
Vijayapura-586101.
20. Nakoda Holiday Resort by
Jayakumar S/o Giridharilal Mehata,
Age: 37 years, Occ: Business,
R/o Rajguru Ashish Complex,
7 W.P.No.202480/2021
C/w WP No.202478/2021
Mahaveer Road, Vijayapura-586101.
21. Smt. Shabana W/o Mehboob Athani,
Age: 41 years, Occ: Business & Household work,
R/o Karmikkuteer, KSRTC Colony,
Gang Bavadi, Vijayapura-586101.
... Respondents
(Sri Shivakumar Kalloor, Advocate for C/R5;
Sri Veeranagouda Malipatil, Advocate for R1 to R4 & R6;
Vide order dated 06.12.2021 notice to R7 to R21 is dispensed
with)
This writ petition is filed under Article 227 of the
Constitution of India, praying to issue a writ, order or
direction in nature of certiorari quashing Annexure-H, viz, the
Order dated 18.12.2020 rejecting IA No.XI in said RA
No.157/2018 on file of the IV Addl. District Judge, Vijayapura
and issue a writ, order or direction in nature of certiorari
quashing Annexure-L, viz, the Order dated 25.11.2021
rejecting IA No.XXIII in said RA No.157/2018 on file of the IV
Addl. District Judge, Vijayapura and etc.
These petitions coming on for Preliminary Hearing in 'B'
Group this day, the Court made the following:
ORDER
These two writ petitions arise out of the orders passed on the interlocutory applications in Regular Appeal No.157/2018 pending before the Court of the IV Additional District Judge, Vijayapura (first Appellate Court) and therefore both the writ petitions are heard 8 W.P.No.202480/2021 C/w WP No.202478/2021 together and disposed of by a common order with the consent of the learned counsel appearing for the parties.
2. Brief facts of the case as revealed from the records that would be relevant for the purpose of disposal of these two petitions are that Original Suit No.272/2000 was filed before the Court of the II Addl. Senior Civil Judge, Vijayapura seeking for the relief of declaration and injunction in respect of the suit property bearing R.S.No.689/1+2+3A measuring 6 acres 29 guntas situated at Mahalbagayat, Vijayapura taluk and district. The said suit was contested by the defendants. The trial Court vide its judgment and decree dated 02.11.2019 had decreed the suit and declared the title of the plaintiffs in respect of the suit property and also had granted an order of permanent injunction against the defendants therein.
3. Being aggrieved by the said judgment and decree passed in Original Suit No.272/2000, the first 9 W.P.No.202480/2021 C/w WP No.202478/2021 defendant had filed Regular Appeal No.157/2018 before the Court of IV Addl. District Judge, Vijayapura and during the pendency of the appeal, the defendants had sold the suit schedule property under three different sale deeds in favour of Sri Mahaveer, Sri Jayakumar and Smt.Shabana respectively. The said purchasers had filed three separate applications to implead them in Regular Appeal No.157/2018 and the first Appellate Court vide its order dated 25.11.2021 had allowed the said applications. Being aggrieved by the same, the plaintiff has filed Writ Petition No.202480/2021.
4. In the regular appeal filed by the first defendant before the first Appellate Court initially an order of stay of the impugned judgment and decree was passed by the first Appellate Court which was not subsequently extended. Therefore, the appellant in the said Regular Appeal No.157/2018 had filed IV No.XI for extending the interim order of stay granted earlier and 10 W.P.No.202480/2021 C/w WP No.202478/2021 also had filed IA No.XXIII seeking fresh interim order of stay. The said applications were dismissed by the first Appellate Court vide its order dated 18.12.2020 and 25.11.2021 and challenging the said orders the appellant in Regular Appeal No.157/2018 has filed the Writ Petition No.202478/2021.
5. Heard the learned counsel for the petitioner's as well as the learned counsel appearing for respondents.
6. Learned counsel for the petitioner in Writ Petition No.202480/2021 submits that the purchasers are not necessary or proper party before the Appellate Court as they have purchased the suit property during the pendency of the appeal and that too when there was a decree passed by the Trial Court in favour of the plaintiff. He submits that the Appellate Court was not justified in entertaining their application for impleading themselves in the first Appellate Court. 11 W.P.No.202480/2021 C/w WP No.202478/2021
7. Learned counsel for the petitioner in Writ Petition No.202478/2021 submits that the judgment and decree passed by the Trial Court in Original Suit No.272/2000 is an executable decree and therefore, during the pendency of the appeal, if the same is not stayed, there is likelihood of the decree holders executing the decree. Further, he submits that the first Appellate Court had admittedly granted an interim order of stay initially while issuing notice to the respondents and the said interim order was not extended during COVID-19 period and therefore the first Appellate Court ought to have considered the prayer made by the appellant for extension of the interim order granted earlier during pendency of the appeal.
8. He also submits that the purchasers are necessary party to the appeal proceedings as they have stepped into the shoes of the defendants and their rights in the suit property would be subject to the out come of 12 W.P.No.202480/2021 C/w WP No.202478/2021 the appeal proceedings. He also submits that in order to avoid multiplicity of proceedings the impleadment of the subsequent purchasers is necessary.
9. I have given my anxious consideration to the arguments addressed by the learned counsel for the parties and also perused the material on record.
10. The first Appellate Court has considered the application filed by the impleading applicant as well as the application made by the appellant for granting of an order of stay together and vide its order dated 25.11.2021 has allowed the applications filed by the purchasers of the suit property in IAs-6 to 8 and dismissed IA-XXIII filed by the appellant. The Appellate Court while considering the application of the purchasers to implead them in the appeal proceedings has observed that the appeal is continuation of the suit proceedings and in order to avoid multiplicity of litigation, the subsequent purchasers of the suit property which was 13 W.P.No.202480/2021 C/w WP No.202478/2021 subject matter of the appeal are required to be implead in the proceedings. The appeal is admittedly filed by the first defendant before the first Appellate Court and the appellant had not opposed the applications for impleading and it is only the plaintiff who is the respondent in the appeal proceedings has opposed the impleading application. Therefore, I am of the considered view that the first Appellate Court was justified in allowing the said applications filed by the subsequent purchasers of the suit schedule property.
11. This Court while issuing notice to the respondents in Writ Petition No.202478/2021 directed the parties to maintain stats-quo in respect of the suit property and the said interim order is in operation as on this date. Therefore, it could be suffice if said order of status-quo is directed to be continued during the pendency of the appeal and having regard to the fact that the first appeal is of the year 2018, if the Appellate 14 W.P.No.202480/2021 C/w WP No.202478/2021 Court is requested to expedite the disposal of the appeal, it would meet the ends of justice and no hardship would be caused to any of the parties to this proceedings. Accordingly, the following ORDER The Writ Petition No.202480/2021 is dismissed. The Writ Petition No.202478/2021 is disposed of with a request to the first Appellate Court before whom the Regular Appeal No.157/2018 is pending to dispose of the appeal as expeditiously as possible, but not later than a period of four months from the date of the receipt of certified copy of this order. The interim order of status-quo granted by this Court in Writ Petition No.202478/2021 on 16.12.2021 would continue to operate till the disposal of the Regular Appeal No.157/2018 by the first Appellate Court.
Sd/-
JUDGE sn