Karnataka High Court
Deepak S/O Vasant Rege vs Shri. Arvind S/O Shankar Rao Rege on 7 February, 2020
Author: S G Pandit
Bench: S.G. Pandit
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 07 t h DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE S.G. PANDIT
WRIT PETI TION NO.103466/2018 (GM-CPC)
BETWEEN:
DEEPAK S/O VASANT REGE
AGE ABOUT: 37 YEARS,
OCC: BUSINESS, R/O: REGE BUNGALOW,
BEHIND HUBLI TOLL NAKA,
SARASWATPUR, DHARWAD.
... PETITIONER
(BY SRI. SHRIKANT T PATIL, ADVOCATE,
AND SRI.ROHIT S PATIL, ADVOCATE)
AND
1. SHRI. ARVIND S/O SHANKAR RAO REGE
AGE: 70 YEARS, OCC: SERVICE,
R/O: 207 GANESHDARSHAN,
MANGALWARPET, TILAKWADI,
BELAGAVI-590006.
2. SHRI.SAKKHARAM S/O MADHAV RAO REGE
AGE: 87 YEARS, OCC: BUSINESS,
R/O: REGE BUNGALOW,
BEHIND HUBLI TOLL NAKA,
SARASWATPUR, DHARWAD.
3. SMT.PADMAVATI W/O NARAYAN REGE
AGE: 77 YEARS, OCC: HOUSEHOLD,
R/O: REGE BUNGALOW,
BEHIND HUBLI TOLL NAKA,
SARASWATPUR, DHARWAD.
2
4. SHRI.AJAY S/O NARAYAN REGE
AGE: 44 YEARS, OCC: BUSINESS,
R/O: REGE BUNGALOW,
BEHIND HUBLI TOLL NAKA,
SARASWATPUR, DHARWAD.
5. SHRI.SANJAY S/O NARAYAN REGE
AGE: 42 YEARS, OCC: BUSINESS,
R/O: REGE BUNGALOW,
BEHIND HUBLI TOLL NAKA,
SARASWATPUR, DHARWAD.
6. SMT.ANJALI D/O NARAYAN REGE
AGE: 33 YEARS, OCC: HOUSEHOLD,
R/O: REGE BUNGALOW,
BEHIND HUBLI TOLL NAKA,
SARASWATPUR, DHARWAD.
7. SMT.SHANTALA W/O LATE MANGESH RAGE
AGE: 76 YEARS, OCC: HOUSEHOLD,
R/O: REGE BUNGALOW,
BEHIND HUBLI TOLL NAKA,
SARASWATPUR, DHARWAD.
8. MR.PRITAM S/O LATE MANGESH REGE
AGE: 38 YEARS, OCC: ADVOCATE,
R/O: REGE BUNGALOW,
BEHIND HUBLI TOLL NAKA,
SARASWATPUR, DHARWAD.
9. MS.PRADNYA D/O LATE MANGESH REGE
AGE: 36 YEARS, OCC: HOUSEHOLD,
R/O: REGE BUNGALOW,
BEHIND HUBLI TOLL NAKA,
SARASWATPUR, DHARWAD.
10. SHRI.JAGADISH S/O MADHAV RAO REGE
AGE: 71 YEARS, OCC: BUSINESS,
R/O: REGE BUNGALOW,
BEHIND HUBLI TOLL NAKA,
SARASWATPUR, DHARWAD.
SINCE DECEASED R.25 AND R.26 ARE
REPRESENTED IN RESPECT OF DECEASED R.10,
3
WHO ARE ALREADY ON RECORD.
11. SMT.URMILA W/O SHANTARAM REGE
AGE: 62 YEARS, OCC: HOUSEHOLD,
R/O: REGE COMPLEX,
VIJAYA ROAD, DHARWAD.
12. SHRI.ANAND S/O SHANTARAM REGE
AGE: 36 YEARS, OCC: BUSINESS,
R/O: REGE BUNGALOW,
BEHIND HUBLI TOLL NAKA,
SARASWATPUR, DHARWAD.
13. SRI.PRASAD S/O SHANTA RAM REGE
AGE: 34 YEARS, OCC: HOUSEHOLD,
R/O: REGE BUNGALOW,
BEHIND HUBLI TOLL NAKA,
SARASWATPUR, DHARWAD.
14. SHRI.VASUDEV S/O SHANKAR RAO REGE
AGE: 86 YEARS, OCC: HOUSEHOLD,
R/O: REGE BUNGALOW,
BEHIND HUBLI TOLL NAKA,
SARASWATPUR, DHARWAD.
SHRI.MADHUKAR S/O SHANKAR RAO REGE
DECEASED ON 30/09/2012
AND HIS LRS
15. SMT.MALATI W/O MADHUKAR REGE,
AGE: 65 YEARS, OCC: HOUSEHOLD,
R/O: REGE BUNGALOW,
BEHIND HUBLI TOLL NAKA,
SARASWATPUR, DHARWAD.
16. SMT.MANISHA W/O RAJESH DALAL
AGE: 41 YEARS, OCC: HOUSEHOLD,
R/O: 103-B, SHRINGERI APARTMENT,
NEAR RISHI COMPLEX,
HOLY CROSS ROAD,
IT COLONY, BORIVALI (W)-400103.
17. SHRI.MANDAR S/O MADHUKAR REGE
AGE: 39 YEARS, OCC: PRIVATE SERVICE,
4
R/O: REGE BUNGALOW,
BEHIND HUBLI TOLL NAKA,
SARASWATPUR, DHARWAD.
18. SMT.SAVITRI W/O GANAPATI REGE
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
R/O: REGE BUNGALOW,
BEHIND HUBLI TOLL NAKA,
SARASWATPUR, DHARWAD.
19. SHRI.GEETESH S/O GANAPATI REGE
AGE: 34 YEARS, OCC: BUSIENSS,
R/O: REGE BUNGALOW,
BEHIND HUBLI TOLL NAKA,
SARASWATPUR, DHARWAD.
20. SHRI.RITESH S/O GANAPATI REGE
AGE: 32 YEARS, OCC: BUSIENSS,
R/O: REGE BUNGALOW,
BEHIND HUBLI TOLL NAKA,
SARASWATPUR, DHARWAD.
21. SHRI.JAYANT S/O SHANKAR RAO REGE
AGE: 70 YEARS, OCC: BUSINESS,
R/O: 402/206, NEELKANTA TOWER,
GOSODIA NAGAR, GHATKOPAR (EAST),
MUMBAI.
22. SHRI.UDAY S/O SAKARAM REGE
AGE: 47 YEARS, OCC: BUSINESS,
R/O: REGE BUNGALOW,
BEHIND HUBLI TOLL NAKA,
SARASWATPUR, DHARWAD.
23. MRS.VINAYA S/O VAMAN SHENOY
D/O SAKARAM RAGE,
AGE: 50 YEARS,
OCC: HOUSEHOLD,
R/O: 303, EVEREST TERRACE,
3RD FLOOR, TEJAPAL ROAD,
NEAR PARLE BISCUIT FACTORY,
VILE PARLE (EAST), MUMBAI.
24. MRS.VIJAY W/O MANJUNATH BADAL
5
D/O SAKARAM RAGE,
AGE: 52 YEARS, OCC: HOUSEHOLD,
R/O: 251, HOUSING BOARD COLONY,
JELPUR ROAD, NEAR BUS STAND, GOKDAL,
DIST: RAJKOT, GUJARATH STATE-360311.
25. MR.AMIT S/O JAGADISH RAGE
AGE: 38 YEARS, OCC: BUSINESS,
R/O: REGE BUNGALOW,
BEHIND HUBLI TOLL NAKA,
SARASWATPUR, DHARWAD.
26. MR.MAYUR S/O JAGADISH RAGE
AGE: 34 YEARS, OCC: BUSINESS,
R/O: REGE BUNGALOW,
BEHIND HUBLI TOLL NAKA,
SARASWATPUR, DHARWAD.
27. MR.DEEPAK S/O VASANT RAGE
AGE: 38 YEARS, OCC: SERVICE,
R/O: REGE BUNGALOW,
BEHIND HUBLI TOLL NAKA,
SARASWATPUR, DHARWAD.
28. MRS.AMRUTA W/O PRASANNA DIWADKAR
AGE: 40 YEARS, OCC: HOUSEHOLD,
R/O: H.NO.99, II ND MAIN, 6TH BLOCK,
BANASHANKARI 3RD STAGE,
BENGALURU-560085.
29. MRS.ASMITA D/O ARAVIND REGE
AGE :37 YEARS, OCC: STUDENT,
R/O: 207, GANESH DARSHAN
MANGALWARPET, TILAKAWADI,
BELAGAVI-590006.
30. MANDAR S/O MADHUKAR RAGE
AGE 36 YEARS, OCC: SERVICE,
R/O: H.NO.1381, 1ST FLOOR, 39TH MAIN,
F. CROSS, SARAKI MAIN ROAD,
J.P. NAGAR, 1ST PHASE,
KANAKAPUR ROAD, BENGLAURU.
31. MRS.MANISHA W/O RAJESH DALAL
6
(D/O MADHUKAR S. REGE)
AGE: 39 YEARS,
OCC: HOUSEHOLD WORK,
R/O: KATAGI COMPOUND,
ANGOL ROAD, MRUTUNJAY NAGAR,
BELAGAVI.
32. MR.ASHWIZ S/O JAYANTH
AGE: 37 YEARS, OCC: HOUSEHOLD WORK,
R/O: 402/206, NEELAKANTH TOWERS,
GASODIA NAGAR,
GHATKOPKOR (EAST) MUMBAI.
33. JOYTASNA D/O JAYANTH DALAL
AGE: 36 YEARS, OCC: SERVICE,
R/O: 402/206, NEELAKANTH TOWERS,
GASODIA NAGAR,
GHATKOPKOR (EAST) MUMBAI.
34. THE KARNATAKA BANK LTD.,
R/BY ITS MANAGER REGE BUILDING,
VIJAYA ROAD, DHARWAD.
35. SHRI.ANAND S/O MAHADEVSA KATHARE
AGE: ABOUT 36 YEARS,
OCC: BUSINESS,
R/O: REGE COMPLEX,
VIJAYA ROAD, DHARWAD.
36. SHRI.SREENIVAS S/O MAHADEVSA KATHARE
AGE: ABOUT 36 YEARS,
OCC: BUSINESS,
R/O: REGE COMPLEX,
VIJAYA ROAD, DHARWAD.
37. SHRI.RAGHAVAN S/O MAHADEVSA KATHARE
AGE: ABOUT 66 YEARS,
OCC: BUSINESS,
R/O: REGE COMPLEX,
VIJAYA ROAD, DHARWAD.
38. SHRI.A.L. GAONKAR & SONS JEWELLERY MERCHANT
R/O: REGE COMPLEX,
VIJAYA ROAD, DHARWAD.
7
39. SHRI.G.K. MEHATA AND CO.
CLOTH MERCHANT
R/O: REGE BUILDING,
SUBHAS ROAD, DHARWAD.
40. SHRI.C.A. TUNGAL
READY MANDE COTH STORES,
R/O: REGE BUILDING,
SUBHAS ROAD, DHARWAD.
41. SHRI.ISHWAR DANGE
ANNAPURNESHWAR REFRESHMENT,
R/O: REGE BUILDING,
SANGAM CIRCLE,
LINE BAZAR, DHARWAD.
42. DR.O.A.MAHIPAL
R/O: REGE BUILDING,
SANGAM CIRCLE,
LINE BAZAR, DHARWAD.
43. THE MANAGER VIJAYA BANK
R/O: VIJAYA ROAD, DHARWAD.
44. THE MANAGER VIJAYA BANK
SARASWATPUR BRANCH,
DHARWAD.
45. THE MANAGER ICICI BANK
R/O: P.B. ROAD,
DHARWAD.
46. THE MANAGER
STATE BANK OF INDIA
HOSAYALLAPUR BRANCH,
DHARWAD.
47. SHRI.KHALEEL RAHAMAN
S/O MOHAMMED GOUSE JAVALI,
AGE: 59 YEARS, OCC: BUSINESS,
R/O: STEPIN SHOP,
REGE BUILDING,
SUBHASH ROAD,
DHARWAD.
8
48. SHRI.SHANKAR
S/O CHANNABASAPPA YAVAGAL,
AGE: 51 YEARS, OCC: BUSINESS,
R/O: C/O. DHARWAD CAP, MART,
SUBHASH ROAD, DHARWAD.
49. SHRI.SANJU
S/O RAMCHANADRA DEVASKAR,
AGE: 51 YEARS, OCC: BUSINESS,
R/O: PUJA TEA DEPOT,
REGE BUILDING,
SUBHASH ROAD,
DHARWAD.
50. SHRI.KRISHNA F. MAHALE
AGE: 81 YEARS, OCC: BUSINESS,
R/O: NICE HAIR DRESS
SANGAM CIRCLE,
DHARWAD.
51. SHRI.MAHANTESH
S/O TIRAKAPPA REDDI,
AGE: 51 YEARS, OCC: BUSINESS,
R/O GANESH MEDICAL STORES,
SANGAM CIRCLE,
DHARWAD.
52. SHRI.RAMESH S/O TAMMANNA ZINGADE
AGE: 56 YEARS, OCC: BUSINESS,
R/O: C/O. SURESH DRESS MAKERS,
SANGAM CIRCLE,
DHARWAD.
53. SHRI.GNAGADHAR S/O VENKATESH NAIK
AGE 59 YEARS,
OCC: BUSINESS,
R/O C/O. HOTEL GURURAJ REGE COMPLEX,
VIJAYA ROAD, DHARWAD.
54. SHRI.UDAY S/O DASHARAT SHIRKE
AGE: 41 YEARS, OCC: BUSINESS,
R/O: NEAR T.V. TOWER,
HALIYAL TOLNAKA, DHARWAD,
C/O. SANGAM LOTTERY CENTRE,
9
VIJAYA ROAD, DHARWAD.
55. DR.H.A. PARWATIKAR
AGE: MAJOR, OCC: DOCTOR,
R/O: REGE BLDG.
SANGAM CIRCLE,
DHARWAD.
56. SMT.VINAYA W/O D. UMESH SANU
AGE: MAJOR, OCC: DOCTOR,
R/O: KELAGERI,
DHARWAD.
57. KARNATAKA VIKAS GRAMEEN BANK
R/BY ITS MANAGER
VIJAYA ROAD, DHARWAD.
... RESPONDENTS
(BY SMT.SUMANGALA A CHAKALABBI, ADVOCATE FOR R1,
SRI.A.M.GUNDAWADE, ADVOCATE FOR R3-5, 7-9, 11, 13 AND
23-26,
SRI.PRAVEEN KULKARNI, ADVOCATE FOR R39,
RESPONDENTS NO.12, 17, 18, 20, 34 TO 38, 40, 42 TO 44, 46
TO 49, 52, 53, 55 AND 57 ARE SERVED,
V/C/O DATED 05.08.2019 STEPS IN RESPECT OF R2, 14, 15
AND 22 DOES NOT ARISE,
NOTICE TO R41, R50 IS DISPENSED WITH V/C/O DTD 7.2.2020,
V/C/O DTD. 14.08.2019 R25, 26 ARE LRS OF DECEASED R10,
SERVICE OF NOTICE TO R6, 16, 19, 21, 27, 28, 30, 31, 45, 54,
56, 32, 33 IS DISPENSED WITH V/C/O DTD. 14.08.2019,
NOTICE TO R29 AND 51 IS DISPENSED WITH V/C/O DTD.
03.02.2020)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONS TITUTION OF INDIA
PRAYING TO ISSU E A WRIT OF CERTIORARI TO QUASH
THE IMPUGNED ORDER PASSED ON I.A. DATED
18.07.2017 IN O.S .NO.274/2006 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JU DGE AND CJM,
DHARWAD VIDE A NNEXURE-E MAY BE QUASHED.
THIS WRIT PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FO LLOWING :
10
ORDER
The petitioner/defendant No.24 in O.S.No.274/2006 on the file of the I Additional Senior Civil Judge and CJM, Dharwad is before this Court under Article 227 of the Constitution of India praying to quash the order dated 18.07.2017 passed on I.A. filed under Order 1 Rule 10 of CPC in O.S.No.274/2006.
2. The suit was for partition and separate possession and consequential reliefs. The petitioner was arrayed as defendant No.24 in the suit. The plaintiff No.1 was the father of defendant No.24. Plaintiff No.1 father of petitioner/defendant No.24 died on 04.06.2016. Subsequently, the petitioner/defendant No.24 filed an application under Order 1 Rule 10 of CPC praying the Court to transpose him as plaintiff in the suit in place of the plaintiff No.1. 11 In the affidavit accompanying the application, it is stated that he is the son of plaintiff No.1 and he is the legal heir of deceased plaintiff No.1. Further, it is stated that at the time of filing the suit as the petitioner/defendant No.24 was not available to sign the vakalath and case papers, he is arrayed as defendant No.24. Hence, he has sought for transposition of himself as plaintiff No.1. The said application was opposed by filing objection by defendant No.9. In the objection it is contended that there being conflict of interest between the petitioner/defendant No.24 and his father plaintiff No.1, the petitioner/defendant No.24 cannot seek to transpose himself as plaintiff No.1. The plaintiffs' statement in the affidavit itself is sufficient to reject the application of the petitioner. The trial Court under the impugned order rejected the I.A. filed 12 under Order 1 Rule 10 of CPC to transpose the petitioner/defendant No.24 as plaintiff No.1.
3. Heard the learned counsel for the petitioner, learned counsel for respondent No.1, Sri.A.M.Gundawade, learned counsel for respondents No.3 to 5, 7 to 9, 11, 13 and 23 to
26.
4. The learned counsel for the petitioner would submit that the petitioner is arrayed as defendant No.24 in the suit, as the plaintiff No.1-father of the petitioner/defendant No.24 died on 04.06.2016, necessitated the petitioner to file an application to transpose himself as plaintiff No.1. He submits that there is no conflict of interest between him and his father. Even though in the affidavit it is stated that there was conflict of interest between the petitioner and his father, it is not so and it only 13 refers conflict prior to filing of suit. The written statement filed by the petitioner/defendant No.24 would make it clear that there was no conflict of interest and the defendant No.24 had filed written statement to divide the properties and to grant his share. The trial Court without looking into the written statement, dismissed the application holding that there is conflict of interest based on the objection of defendant No.9, which is wholly erroneous.
5. Per contra, the learned counsel for the respondents would submit that the suit is one for partition. It is stated that the statement made in the affidavit that there is conflict of interest between him and his father itself is sufficient to reject the application and accordingly, the trial Court has rejected the application. The learned counsel for the 14 respondents justifies the order passed by the trial Court.
6. Having heard the learned counsels for the parties and on perusal of the material on record, I am of the view that the trial court has committed an error in rejecting the application filed under Order 1 Rule 10 of CPC of the petitioner/defendant No.24 to transpose him as plaintiff No.1. The suit is one for partition and separate possession. In a suit for partition, everyone would be treated as plaintiff and share in the properties would be allotted to each of them. In the instant case, the defendant No.24/petitioner herein had filed the written statement and at para 24 stated as follows:
"22. T he Def endant No.24 sub mits th at as he is also one of the me mbers of the co- parceaners and has righ t, title and in teres t in the proper ties involved in the 15 present su it, the Def endant No.24 also prays th at the properties be d ivided by me tes and bounds and the sh are of the Def endant No.24 also be gr anted."
The above paragraph would demonstrate that there was no conflict of interest between the petitioner and his father. The petitioner/defendant No.24 has stated that he is one of the member of the co-parceaners and has right, title and interest in the suit schedule properties and prayed for partition of those properties and to allot his share. The learned counsel for the respondents was unable to point out any conflict of interest between the petitioner/defendant No.24 and plaintiff No.1. Admittedly, plaintiff No.1 died on 04.06.2016. Mere stating that there was conflict of interest between the petitioner's father and petitioner himself in the affidavit accompanying the 16 application, would not constitute conflict of interest. There is no material or averment in the entire pleading which is on record to indicate the conflict of interest between the petitioner/defendant No.24 and his father plaintiff No.1. In the affidavit it is made clear that at the time of filing the suit as the petitioner was not available to sign the vakalath and the case papers, he was arrayed as defendant No.24. Thus, I find no conflict of interest between the petitioner/defendant No.24 and plaintiff No.1, who died during pendency of the suit.
7. Order 1 Rule 10(6) of CPC provides for transposition of plaintiff as defendant and defendant as plaintiff after notice to the other parties on such terms and conditions as it may impose. In the instant case, the other parties to 17 the suit were notified with regard to transposition application filed by the petitioner/defendant No.24. Even the defendant No.9 had filed objection, but was unable to point out any conflict of interest between the parties. Thus, I am of the view that the trial Court committed an error in rejecting the application. Hence, I.A. filed under Order 1 Rule 10 of CPC by the petitioner/defendant No.24 is allowed and the petitioner/defendant No.24 is transposed as plaintiff No.1. The writ petition is accordingly disposed of.
8. In view of the disposal of the petition, pending I.A's, if any, do not survive for consideration and the same are disposed of.
Sd/-
JUDGE Sh