Karnataka High Court
Smt Yashodhamma vs Sri Chalapathi on 6 December, 2018
Author: Alok Aradhe
Bench: Alok Aradhe
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6th DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE ALOK ARADHE
WRIT PETITION NO.54127 OF 2018 (GM CPC)
BETWEEN:
Smt.Yashodhamma,
Daughter of Late Kempegowda
Aged about 61 years
Residing at Avala Marakalagatta Village
Avani Hobli, Mulbagal Taluk
Kolar District-563 131.
... Petitioner
(By Sri.Byregowda, Adv. for
Sri.Sanjay Gowda N S, Advocate)
AND:
1. Sri.Chalapathi,
Son of late Kempegowda
Aged about 53 years
Residing at Avala Marakalagatta Village
Avani Hobli, Mulbagal Taluk
Kolar District - 563 131.
2. Sri.Munivenkatappa,
Son of Chikkappaiah
Aged about 73 years
3. Sri.Srinivasa,
Son of Munivenkatappa
Aged about 33 years
Residing at Avala Marakalagatta Village
Avani Hobli, Mulbagal Taluk
Kolar District - 563 131.
... Respondents
This Writ Petition is filed under Article 227 of the
Constitution of India, praying to quash the order dated
2
19th November, 2018 passed on IA.No.22 in O.S.No.40/2010
by the Principal Civil Judge and JMFC at Mulbagal (Annex-E)
and consequently allow IA.No.22 in its entirety and etc.
This Petition coming on for Preliminary Hearing this
day, the Court made the following:-
ORDER
Taking into account the order which this Court proposes to pass, it is not necessary to issue notice to the respondents.
2. Heard the learned counsel for the petitioner on the question of admission.
3. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 19.11.2018 passed by the Trial Court by which the application preferred by the petitioner under Order 1 Rule 10(2) of CPC, has been rejected.
4. Respondent No.1 who is the brother of the petitioner has filed a suit against respondent Nos.2 and 3 seeking the relief of declaration of title and permanent 3 injunction in respect of land measuring 28 guntas forming part of Sy.No.60/1 of Avalamarakalagatta Village. The aforesaid Civil Suit was filed in the year 2010. The petitioner, who claims to be the sister of respondent No.1, filed an application under Order 1 Rule 10(2) of CPC. The aforesaid application has been rejected by the trial Court vide impugned order.
5. Sri.Byregowda, learned counsel for Sri.Sanjay Gowda N S, learned counsel for the petitioner submitted that the petitioner is the co-owner of the property being the sister as such, the property in question belongs to her father and therefore, the petitioner is a proper and necessary party to the lis.
6. I have considered the submissions made by learned counsel for the petitioner. It is trite law that plaintiff is a dominus litis. The relief of declaration is a relief non persona, in other words, even if a decree is passed in favour of respondent No.1, the same shall operate against respondent Nos.2 and 3 and will not 4 bind the petitioner. By permitting the petitioner's impleading in the suit, the scope of the Civil Suit cannot be enhanced. If the impleadment of the petitioner is permitted, the trial Court would be required to examine the issue with regard to title of the petitioner also in the suit property, which is not presently the subject matter of the suit. The impugned order neither suffers from any jurisdictional infirmity nor any error on the face of the record.
7. Even otherwise it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution cannot be exercised to correct all errors of a judgment of a Court acting within its limitation. It can be exercised where the orders is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. {see:JAI SINGH AND OTHERS VS. M.C.C. AND OTHERS (2010 9 SCC 385 AND SHALINI SHYAM SHETTY VS. RAJENDRA SHANKAR PATIL (2010) 8 SCC 329]. In the instant 5 case, the impugned order is not passed in violation of fundamental principles of law justice warranting interference of this Court under Article 227 of the Constitution.
8. In view of the above, I find no grounds to interfere with the order passed by the Trial Court, at this particular stage, as the petitioner will be at liberty to file a suit against respondent No.1 to establish her right, title or interest in respect of the suit property.
Accordingly, the writ petition is disposed of.
Sd/-
JUDGE dn/-