Karnataka High Court
Saroja W/O. Prakash Upavasi vs Sangappa Shivamurteppa Upavasi on 22 August, 2013
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 22ND DAY OF AUGUST 2013
BEFORE
THE HON'BLE MR.JUSTICE A.N.VENUGOPALA GOWDA
WRIT PETITION No.79904/2013 (GM-CPC)
BETWEEN:
1. SAROJA W/O. PRAKASH UPAVASI
AGE: 42 YEARS,
R/O. LINGADAL,
TQ & DIST: GADAG.
2. KUMARI LAKSHMI
D/O. PRAKASH UPAWASI
AGE: 16 YEARS, R/O LINGADAL,
MINOR R/BY HER MOTHER
SAROJA W/O. PRAKASH UPAVASI
... PETITIONERS
(By Sri. MALLIKARJUN C BASAREDDY, ADV.)
AND
1. SANGAPPA SHIVAMURTEPPA UPAVASI
AGE: 55 YEARS,
2. SANJAY S/O. BASAVANNEPPA UPAVASI
AGE: 35 YEARS
3. SHIVAKUMAR S/O. BASAVANNEPPA UPAVASI
AGE: 32 YEARS
4. SUNILAKUMAR
S/O. CHANDRASHEKAR UPAWASI
ALL ARE R/O. LINGADAL, TQ: GADAG
... RESPONDENTS
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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER PASSED BY THE PRL. SENIOR CIVIL JUDGE
AND CJM, GADAG IN OS.NO.125/2011 ON IA.NO.11
DTD.11.02.2013 VIDE ANNEXURE-E AND DISMISS THE
IA.NO.11.
THIS WP COMING ON FOR PRELIMINARY HEARING THIS
DAY, THE COURT MADE THE FOLLOWING: -
ORDER
Petitioners are the plaintiffs in O.S. No.125/2011 on the file of the Senior Civil Judge at Gadag. The suit has been instituted to pass a decree declaring the plaintiffs - petitioners, as the absolute owners and restrain the defendants from interfering with the possession and enjoyment of suit property. Respondents - defendants filed I.A., No.11/2012 under Order 1 Rule 10 of CPC, to implead daughters of late Shivamurteppa as defendant Nos.5 to 8, on the ground that they have filed O.S. No.181/2012 on the file of the Principal Civil Judge Court at Gadag and that they are proper and necessary parties in O.S.No.125/2011. The application having been allowed on 11.02.2013, this writ petition has been filed.
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2. Heard Shri Mallikarjun C. Basareddy, learned advocate for the petitioners and perused the writ petition record. Learned counsel submitted that though the proposed defendants are neither necessary nor proper parties, the Trial Court has irrationally allowed I.A. No.11 and the impugned order being illegal, interference is warranted.
3. Proposed defendants have filed O.S. No.121/2012, to pass a decree of partition and separate possession, even in respect of the properties which are the subject matter of consideration in O.S. No.125/2011 filed by the petitioners and now pending in the Court of Senior Civil Judge at Gadag. Since the proposed defendants have made a claim on the properties which are subject matter of consideration in O.S. No.125/2011, the suit being one for passing a comprehensive decree of declaration and permanent injunction, they are necessary and proper parties. :4:
4. Though the reasons which have been assigned by the learned Trial Judge, while allowing I.A. No.11 are not correct, there being no dispute that in O.S. No.181/2012, the subject matter of O.S. No.125/2011 is also involved, I.A. No.11 ought to have been allowed on that score or the two suits ought to have been tried and decided by one and the same Court, to avoid multiplicity of litigation. In the said view of the matter, it is unnecessary to interfere with the impugned order, though the reasons which have been assigned by the learned Trial Judge while allowing the impugned order are absurd.
In the result, the writ petition is rejected. The Principal District Judge, Gadag, is directed to withdraw O.S. No.181/2012 pending on the file of the Principal Civil Judge at Gadag and assign the same to the Court of Senior Civil Judge at Gadag for being tried simultaneously or along with O.S. No.125/2011. It is for the learned Trial Judge to decide whether both the :5: suits are required to be clubbed and decided together or to be decided simultaneously.
Since O.S. No.125/2011 pending for more than two years, the Trial Court is directed to decide the suit within a period of one year from the date of appearance of both the parties.
SD/-
JUDGE Rsh Ct-byg