Karnataka High Court
P N Sadashiva vs P S Rajeshwari on 15 March, 2022
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 15TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR JUSTICE N.S.SANJAY GOWDA
WRIT PETITION NO.100925/2022 (GM-CPC)
C/W. WRIT PETITION NO.100932/2022 (GM-CPC)
WRIT PETITION NO.100933/2022 (GM-CPC)
WRIT PETITION NO.100974/2022 (GM-CPC)
In W.P. NO.100925/2022:
BETWEEN:
1. P.N. Sadashiva, Age 67 years,
S/o. Late Nageswara Shetty,
2. P.V. Prakash, Age 69 years,
S/o. Late Vishwanath Shetty,
3. P.V. Ganesh, Age 63 years,
S/o. Late Vishwanath Shetty,
4. P.V. Ramesh, Age 66 years,
S/o. Late Vishwanath Shetty,
P. Prabhakar Shetty, Since deceased by L.Rs.
5. P.S. Kumaraswamy, Age 64 years,
S/o. Late Shankarappa Shetty,
6. Manjunath, Age 62 years,
S/o. Late Shankarappa Shetty,
7. P.S. Balasubba Shetty, Age 54 years,
S/o. Late Shankarappa Shetty,
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8. P.S. Srinivasa Shetty, Age 54 years,
S/o. Late Shankarappa Shetty,
9. P.S. Balasubramanya, Major,
S/o. P.V. Prakash,
10. P.R. Bharat, Major,
S/o. P.V. Ramesh,
11. P.G. Sharat, Major,
S/o. P.V. Ganesh,
12. Sanketh, Major,
S/o. Balasubba Shetty.
13. P.S. Mallikarjuna, Age 53 years,
S/o. Shankarappa Shetty,
14. P. Sandesh, Major,
S/o. P.S. Manjunath,
All are r/o.: Post Box No.3,
Hampi Road, Hosapete-583 20,
Ballari District.
... Petitioners
(By Shri Harsh Desai, Advocate)
AND:
P.S. Sudhakar @ Sudhakar Shetty,
Since deceased by L.Rs.
1. P.S. Rajeshwari, Major,
W/o. Late P.S. Sudhakar Shetty,
2. P.S. Balasubramanya @ Balasubbaiah
Shetty @ Sunil, Major
S/o. Sudhakar Shetty.
R/o.: Kottu Villae in Kudligi,
Ballari Taluka & District, Pin-583 135.
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3. Raghavendra, Age 44 years,
S/o. R. Venkateshulu,
R/o.: 1st Cross, Ganesh Colony,
Opp: Sree Krishna Temple,
Ballari-583 101.
4. Shanmukha, Age 47 years,
S/o. Anjinappa,
R/o.: 94/A1, Koarachara Colony,
Opp: Near Thayamma Temple,
Ballari-583 101.
5. Ranganath Arun Kumar, Age 35 years,
S/o. L. Ranganath,
R/o.: 1142A, Raja Rajeshwari Nilaya,
Vidya Nagar, 5th Cross, Hosasurga Camp,
Ballari-583 101.
6. Sandhya, Age 36 years,
W/o. N.Anantha Raj,
7. Kum. A. Khetana, Age 14 years,
D/o. N. Anantha Raj,
8. Kum. Niharika, Age 08 yers,
D/o. N. Anantha Raj,
Respondent Nos.7 & 8 are minors
Rep. by their natural guardian/mother
Respondent No.6.
Respondent Nos.6 to 8 are all
R/o.: LIG-38, Moka Road, KHB Colony,
Ballari-583 101.
9. P. Harshavardhana, Age 39 years,
S/o. Prabhakar Shetty,
10. P.S. Santosh, Major,
S/o. Sadashiva,
All are R/o.: Post Box No.3, Hampi Road,
Hosapete-583 201, Ballari District.
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11. The Director of Mines & Geology,
Monitoring Committee,
Department of Mines & Geology,
5th Floor, Race Course Road,
Khanija Bhavan, Bengaluru-560 001.
12. P. Balasubba Shetty & Sons,
A partnership Firm Having its address at
Hampi Road, Hosapete-583 201,
Ballari District,
Rep. by its Partner.
... Respondents
This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India, praying to issue a writ of certiorari quashing
the order dated 28.10.2021 on I.A. No.16, passed by the Court of
the Prl. Senior Civil Judge and JMFC at Hosapete in O.S. No.14 of
2016 as per Annexure-G and thereby reject I.A. No.16.
In W.P. No.100932/2022:
BETWEEN:
1. P.N. Sadashiva, Age 67 years,
S/o. Late Nageswara Shetty,
2. P.V. Prakash, Age 69 years,
S/o. Late Vishwanath Shetty,
3. P.V. Ramesh, Age 66 years,
S/o. Late Vishwanath Shetty,
4. P.V. Ganesh, Age 63 years,
S/o. Late Vishwanath Shetty,
P. Prabhakar Shetty, Since deceased by L.Rs.
5. P.S. Kumaraswamy, Age 64 years,
S/o. Late Shankarappa Shetty,
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6. P.S. Manjunath, Age 62 years,
S/o. Late Shankarappa Shetty,
7. P.S. Balasubba Shetty, Age 59 years,
S/o. Late Shankarappa Shetty,
8. P.S. Srinivasa Shetty, Age 54 years,
S/o. Late Shankarappa Shetty,
9. P.S. Mallikarjuna, Age 53 years,
S/o. Shankarappa Shetty,
All are r/o.: Post Box No.3,
Hampi Road, Hosapete-583 20,
Ballari District.
... Petitioners
(By Shri Harsh Desai, Advocate)
AND:
P.S. Sudhakar @ Sudhakar Shetty,
Since deceased by L.Rs.
1. P.S. Rajeshwari, Major,
W/o. Late P.S. Sudhakar Shetty,
2. P.S. Balasubramanya @ Balasubbaiah
Shetty @ Sunil, Major
S/o. Sudhakar Shetty.
R/o.: Kottu Villae in Kudligi,
Ballari Taluka & District, Pin-583 135.
3. Raghavendra, Age 44 years,
S/o. R. Venkateshulu,
R/o.: 1st Cross, Ganesh Colony,
Opp: Sree Krishna Temple,
Ballari-583 101.
4. Shanmukha, Age 47 years,
S/o. Anjinappa,
R/o.: 94/A1, Koarachara Colony,
Opp: Near Thayamma Temple,
Ballari-583 101.
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5. Ranganath Arun Kumar, Age 35 years,
S/o. L. Ranganath,
R/o.: 1142A, Raja Rajeshwari Nilaya,
Vidya Nagar, 5th Cross, Hosasurga Camp,
Ballari-583 101.
6. Sandhya, Age 36 years,
W/o. N.Anantha Raj,
7. Kum. A. Khetana, Age 14 years,
D/o. N. Anantha Raj,
8. Kum. Niharika, Age 08 yers,
D/o. N. Anantha Raj,
Respondent Nos.7 & 8 are minors
Rep. by their natural guardian/mother
Respondent No.6.
Respondent Nos.6 to 8 are all
R/o.: LIG-38, Moka Road, KHB Colony,
Ballari-583 101.
9. P. Harshavardhana, Age 39 years,
S/o. Prabhakar Shetty,
10. Neelakantappa
S/o. SAchidananda Shetty,
11. Shambunatha Shetty, Age 52 years,
S/o. SAchidananda Shetty,
12. Gopal, Age 56 years,
S/o. Late Nagareswara Shetty,
13. Suresh, Age 46 yeas,
S/o. Late Nagareswara Shetty,
All are r/o.: Post Box No.3, Hampi Road,
Hosapete-583 201, Ballari District.
14. P. Balasubba Shetty & Sons,
A partnership Firm Having its address at
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Hampi Road, Hosapete-583 201,
Ballari District, Rep. by its Partner.
... Respondents
This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India, praying to issue a writ of certiorari quashing
the order dated 28.10.2021 on I.A. No.14, passed by the Court of
the Prl. Senior Civil Judge and JMFC at Hosapete in O.S. No.34 of
2016 as per Annexure-G and thereby reject I.A. No.14.
In W.P. NO.100933/2022:
BETWEEN:
P.S. Sudhakar @ Sudhakar Shetty,
Since deceased by L.Rs.
1. P.S. Rajeshwari, Age 65 years,
W/o. Late P.S. Sudhakar Shetty,
2. P.S. Balasubramanya @ Balasubbaiah
Shetty @ Sunil, Age 35 years
S/o. Sudhakar Shetty.
R/o.: Kottu Villae in Kudligi,
Ballari Taluka & District, Pin-583 135.
... Petitioners
(By Shri C.S. Shettar, Advocate)
AND:
1. Raghavendra, Age 44 years,
S/o. R. Venkateshulu,
R/o.: 1st Cross, Ganesh Colony,
Opp: Sree Krishna Temple,
Ballari-583 101.
2 Shanmukha, Age 47 years,
S/o. Anjinappa,
R/o.: 94/A1, Koarachara Colony,
Opp: Near Thayamma Temple,
Ballari-583 101.
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3 Ranganath Arun Kumar, Age 35 years,
S/o. L. Ranganath,
R/o.: 1142A, Raja Rajeshwari Nilaya,
Vidya Nagar, 5th Cross, Hosasurga Camp,
Ballari-583 101.
4 Sandhya, Age 36 years,
W/o. N.Anantha Raj,
5 Kum. A. Khetana, Age 14 years,
D/o. N. Anantha Raj,
6 Kum. Niharika, Age 08 yers,
D/o. N. Anantha Raj,
Respondent Nos.5 & 6 are minors
Rep. by their natural guardian/mother
Respondent No.4.
Respondent Nos.6 to 8 are all
R/o.: LIG-38, Moka Road, KHB Colony,
Ballari-583 101.
7. P.N. Sadashiva, Age 67 years,
S/o. Late Nageswara Shetty,
8. P.V. Prakash, Age 69 years,
S/o. Late Vishwanath Shetty,
9. P.V. Ganesh, Age 63 years,
S/o. Late Vishwanath Shetty,
10. P.V. Ramesh, Age 66 years,
S/o. Late Vishwanath Shetty,
P. Prabhakar Shetty, Since deceased by L.Rs.
11. P.S. Kumaraswamy, Age 64 years,
S/o. Late Shankarappa Shetty,
12. Manjunath, Age 62 years,
S/o. Late Shankarappa Shetty,
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13. P.S. Balasubba Shetty, Age 59 years,
S/o. Late Shankarappa Shetty,
14. P.S. Srinivasa Shetty, Age 54 years,
S/o. Late Shankarappa Shetty,
15. P.S. Balasubramanya, Major,
S/o. P.V. Prakash.
16. P.R. Bhat, Major,
S/o. P.V. Ramesh,
17. P. Harshavardhana, Age 39 years,
S/o.: Prabhakar Shetty,
18. P.G. Sharat, Major,
S/o. P.V. Ganesh,
19. Sanketh, Major,
S/o.: Balasubba Shetty,
20. P.S. Mallikarjuna, Age 53 years,
S/o. Shankarappa Shetty,
21. P.S. Santosh, Major, S/o. Sadashiva,
22. Sandesh, Major,
S/o. P.S. Manjunath,
All are r/o.: Post Box No.3, Hampi Road,
Hosapete-583 201, Ballari District.
23. The Director of Mines & Geology,
Monitoring Committee,
Department of Mines & Geology,
5th Floor, Race Course Road,
Khanija Bhavan, Bengaluru-560 001.
24. P. Balasubba Shetty & Sons,
A partnership Firm Having its address at
Hampi Road, Hosapete-583 201,
Ballari District, Rep. by its Partner.
... Respondents
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This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India, praying to issue a writ of certiorari quashing
the order dated 28.10.2021 on I.A. No.16, passed by the Court of
the Prl. Senior Civil Judge and JMFC at Hosapete in O.S. No.14 of
2016 as per Annexure-G and thereby reject I.A. No.16.
In W.P. No.100974/2022:
BETWEEN:
P.S. Sudhakar @ Sudhakar Shetty,
Since deceased by L.Rs.
1. P.S. Rajeshwari, Age 65 years,
W/o. Late P.S. Sudhakar Shetty,
2. P.S. Balasubramanya @ Balasubbaiah
Shetty @ Sunil, Age 35 years
S/o. Sudhakar Shetty.
R/o.: Kottu Villae in Kudligi,
Ballari Taluka & District, Pin-583 135.
... Petitioners
(By Shri C.S. Shettar, Advocate)
AND:
1. Raghavendra, Age 44 years,
S/o. R. Venkateshulu,
R/o.: 1st Cross, Ganesh Colony,
Opp: Sree Krishna Temple,
Ballari-583 101.
2 Shanmukha, Age 47 years,
S/o. Anjinappa,
R/o.: 94/A1, Koarachara Colony,
Opp: Near Thayamma Temple,
Ballari-583 101.
3 Ranganath Arun Kumar, Age 35 years,
S/o. L. Ranganath,
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R/o.: 1142A, Raja Rajeshwari Nilaya,
Vidya Nagar, 5th Cross, Hosasurga Camp,
Ballari-583 101.
4 Sandhya, Age 36 years,
W/o. N.Anantha Raj,
5 Kum. A. Khetana, Age 14 years,
D/o. N. Anantha Raj,
6 Kum. Niharika, Age 08 yers,
D/o. N. Anantha Raj,
Respondent Nos.5 & 6 are minors
Rep. by their natural guardian/mother
Respondent No.4.
Respondent Nos.4 to 6 are all
R/o.: LIG-38, Moka Road, KHB Colony,
Ballari-583 101.
7. P.N. Sadashiva, Age 67 years,
S/o. Late Nageswara Shetty,
8. P.V. Prakash, Age 69 years,
S/o. Late Vishwanath Shetty,
9. P.V. Ramesh, Age 66 years,
S/o. Late Vishwanath Shetty,
10. P.V. Ganesh, Age 63 years,
S/o. Late Vishwanath Shetty,
P. Prabhakar Shetty, Since deceased by L.Rs.
11. P.S. Kumaraswamy, Age 64 years,
S/o. Late Shankarappa Shetty,
12. P.S. Manjunath, Age 62 years,
S/o. Late Shankarappa Shetty,
13. P.S. Balasubba Shetty, Age 59 years,
S/o. Late Shankarappa Shetty,
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14. P.S. Srinivasa Shetty, Age 54 years,
S/o. Late Shankarappa Shetty,
15. P. Harshavardhana, Age 39 years, ,
S/o. Prabhakar Shetty,
16. P.S. Mallikarjuna, Age 53 years,
S/o. Shankarappa Shetty,
17. Neelakantappa
S/o Sachidananda Shetty,
18. Shambunatha Shetty, Age 52 years,
S/o. Late Sachidananda Shetty,
19. Gopal, Age 56 years,
S/o. Late Nagareswara Shetty,
20. Suresh, Age 46 years,
S/o. Late Nagareswara Shetty,
All are r/o.: Post Box No.3, Hampi Road,
Hosapete-583 201, Ballari District.
21. P. Balasubba Shetty & Sons,
A partnership Firm Having its address at
Hampi Road, Hosapete-583 201,
Ballari District, Rep. by its Partner.
... Respondents
This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India, praying to issue a writ of certiorari quashing
the order dated 28.10.2021 on I.A. No.14, passed by the Court of
the Prl. Senior Civil Judge and JMFC at Hosapete in O.S. No.34 of
2015 as per Annexure-G and thereby reject I.A. No.14.
These Writ Petitions coming on for Orders, this day, the
Court made the following:
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ORDER
1. These writ petitions are directed against the order passed on an application filed under Order 1 Rule 10(2) of the CPC.
2. P.S. Sudhakar Shetty instituted two suits for partition, which were registered as O.S. No.100/2015 (renumbered as O.S. No.14/2016) before the Senior Civil Judge and JMFC, Kudligi (which later transferred to the Prl. Senior Civil Judge and JMFC, Hosapete) and O.S. No.34/2015, which was filed before the Prl. Senior Civil Judge and JMFC, Hosapete.
3. The second suit in O.S. No.34/2015 had been filed by P.S. Sudhakar Shetty that is the plaintiff in O.S. No.100/2015 along with P.S. Balasubramanya as the second plaintiff. P.S. Balasubramanya, who had been arrayed as 10th defendant in O.S. No.100/2015.
4. Both the suits were for partition in respect of the mining lease which had been granted to M/s. P. Balasubba Shetty and Sons in M.L. Registration No.2502 with a sanctioned area of 109.00 acres situated at Karadikolla village, Sandur Taluka, Ballari District.
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5. The defendant Nos.1 to 17 were stated to be the members of the joint Hindu family and they had a common ancestor, one Balasubba Shetty.
6. The suit was for a declaration that plaintiff and defendant Nos.1 to 17 formed a joint family and the suit property was joint family property and for a direction to the defendants to render a true and faithful account of their dealings with the joint family mining lease from 02.04.2010. A prayer for injunction in respect of the schedule property was also made.
7. It is thus clear that the suit was based on the premise that the suit property formed the part of the joint family property over which the plaintiff had a right to claim a share.
8. It is not in dispute that on 26th September 2020, P.S. Sudhakar Shetty, the plaintiff, passed away, leaving behind him his wife and son as his legal heirs.
9. It appears that during his life time, P.S. Sudhakar Shetty had entered into the Memorandum of Understanding (for short "the MOU") with N. Ananth Raj, the husband and father of respondent Nos.6 to 8 herein; Raghavendra (respondent No.3
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10. It also appears that P.S. Sudhakar Shetty had created an agency in the form of registered the General Power of Attorney (for short "the GPA") in favour of the husband and father of respondent Nos.6 to 8 herein and the respondent No.3 herein. Both the MOU and the GPA were dated 30th July 2018 and they were also registered. The respondent Nos. 3 to 8 claiming to have a right under the MOU and the GPA, made an application to implead themselves as plaintiff Nos.3 to 8 in the suit.
11. In the affidavit filed in support of the impleading application, they based their claim to be impleaded as proposed plaintiffs only on the basis of the MOU that they had entered into with the deceased plaintiff and the agency that had been created in their favour.
12. The said application for impleading was opposed by the defendants. It may also pertinent to state here that the legal heirs of the deceased P.S. Sudhakar Shetty i.e., his wife and son also opposed the impleading. They also denied the
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13. The Trial Court, however, proceeded to allow the impleading application and permitted the respondent Nos.3 to 8 to implead themselves as plaintiffs in the suit.
14. It is against this order by which the respondents herein, who claimed a right under the MOU and were permitted to come on record as plaintiffs, these writ petitions are filed.
15. As stated above, it is not in dispute that the suit was one for partition. Essentially, if the original plaintiffs, proved his assertion that the suit property was a joint family property and he was entitled to a share, the Trial Court would have probably granted him a share in the suit property. In other words, the only question involved in the suit was whether P.S. Sudhakar Shetty had a right to claim a share in respect of the suit property and whether the suit property was a joint family property.
16. Admittedly the plea put forth by the proposed plaintiffs is that they had secured certain rights on the basis of the MOU
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WP No. 100925 of 2022C/W WP No. 100932 of 2022 WP No. 100933 of 2022 WP No. 100974 of 2022 said to have been executed by P.S. Sudhakar Shetty and his wife and son. Obviously, the entitlement or otherwise of the proposed plaintiffs under the MOU and the GPA cannot be made the subject matter of a suit for partition. If the proposed plaintiffs in fact possess some right under the MOU and the GPA, it would definitely be open for them to institute appropriate proceedings on the basis of the said the MOU and the GPA.
17. In my view, there is absolutely no justification for allowing applicants, who claim a right on the basis of an agreement said to have been executed by the deceased plaintiff to come on record and continue with the suit as a plaintiff. Under Order 22 of CPC, only the L.Rs. of the deceased-plaintiff can come on record to prevent the abatement of the suit and to continue the suit if right to sue survives to them. Undisputedly, in the present case, the right to sue can be said to survive only to the wife and son of P.S. Sudhakar Shetty. A person claiming a contractual right from P.S. Sudhakar Shetty cannot be said to be a person in whose favour the right to sue survives. The
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18. The learned counsel for the petitioner however placed strong reliance on the Judgment rendered by the Madras High Court in the case of C.M.C.rishnamachari vs. M.D. Dhanalashmi Ammal and Others, reported in AIR 1968 Mad 142. In the said case, the Court was dealing with the situation, where a person who claims that he had entered in an agreement of sale from one of the coparceners was permitted to come on record as a supplementary defendant. Obviously, the factual situation in that case resulted in the decision rendered by the Madras High Court in the terms stated therein. In the instant case, since the proposed parties are sought to implead themselves as proposed plaintiffs, the ratio laid down in that decision cannot be of any assistance to the plaintiffs..
19. Order-1 of Rule-10(1) & (2) read as follows:
10. Suit in name of wrong plaintiff.-
(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bone fide mistake, and that it is necessary for the
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determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) Court may strike out or add parties.-
The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."
20. As could be seen from the Order-1 Rule 10(1), only if the suit had been instituted in the name of the wrong plaintiff Order-1 Rule-10(1) can be invoked and the improperly joined plaintiff can be substituted by adding the proper plaintiff.
21. In order to invoke Order-1 Rule-10(2) it has to be established that a party has been improperly joined and it is necessary that he therefore be struck out from the array of parties and that the name of any person who ought to have been joined and whose presence before the Court is necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions only are required to
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22. It is to be noticed here that the presence of the proposed plaintiffs would be no way essential for determination as to whether P.S. Sudhakar Shetty had a share in the suit property, which was the only question required to be stated in the suit. As stated above, the only question in the present set of suits was as to whether P.S. Sudhakar Shetty possessed a legal right to claim a share. Admittedly the contention advanced by the proposed plaintiffs to come on record on the basis of a contract that they claim to have entered into with P.S. Sudhakar Shetty.
23. In my view, such a right based on a contract cannot entitle them to be joined as plaintiffs. Their entitlement under the MOU would not be a question involved in the determination of the suit and thereby obviously unnecessary for the effective
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WP No. 100925 of 2022C/W WP No. 100932 of 2022 WP No. 100933 of 2022 WP No. 100974 of 2022 and complete adjudication upon the questions involved in the suit.
24. I am therefore of the view that the impugned order passed in these writ petitions cannot be sustained and the same are accordingly quashed.
25. The applications filed for impleading by the proposed plaintiffs on the basis of the MOU dated 30.07.2018 and the GPA is also dated 30.07.2018 in both the suits are rejected.
26. It is open for the applicants in the said impleading applications to initiate such appropriate proceedings as they deem fit and proper on the basis of the MOU and the GPA that they claim to have obtained from P.S. Sudhakar Shetty.
SD/-
JUDGE Vnp* (up to paragraph 17)