Sri T Narayanappa S/O Sri Thimmarayappa vs Sri S H Byranna S/O Hanumantharayappa on 29 August, 2012

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Karnataka High Court

Sri T Narayanappa S/O Sri Thimmarayappa vs Sri S H Byranna S/O Hanumantharayappa on 29 August, 2012

Bench: Ravi Malimath

                             1


 IN THE HIGH COURT OF KARNATAKA, BANGALORE

       DATED THIS THE 29TH DAY OF AUGUST 2012

                         BEFORE

        THE HON'BLE MR. JUSTICE RAVI MALIMATH

       WRIT PETITION NO.23983 OF 2010 [GM-CPC]

BETWEEN:

SRI T.NARAYANAPPA
SON OF SRI THIMMARAYAPPA
AGED ABOUT 61 YEARS
RESIDING AT SHETTIGERE VILLAGE
JALA HOBLI
BANGALORE NORTH TALUK.                    ...PETITIONER

            [BY:SMT.NIRMALA, ADVOCATE FOR
              M/S.MYLARAIAH ASSOCAITES]

AND:

1.     SRI S.H.BYRANNA
       SON OF HANUMANTHARAYAPPA
       AGED ABOUT 65 YEARS
       RESIDING AT SHETTIGERE VILLAGE
       JALA HOBLI, BANGALORE NORTH TALUK.

2.     SRI CHIKKANNA
       SON OF GUTTAPPA
       AGED ABOUT 45 YEARS
       RESIDING AT SHETTIGERE VILLAGE
       JALA HOBLI, BANGALORE NORTH TALUK.

3.     SRI NARAYANASWAMY
       SON OF HANUMANTHARAYAPPA
       AGED ABOUT 43 YEARS
       RESIDING AT SHETTIGERE VILLAGE
       JALA HOBLI
       BANGALORE NORTH TALUK.       ... RESPONDENTS

                 [R1- service held sufficient
                       R2 & R3 - served]
                            2


     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 8.6.2010 PASSED ON IA NO.III
IN O.S.NO.481/2007 BY THE LEARNED PRINCIPAL CIVIL
JUDGE (JUNIOR DIVISION) DEVANAHALLI AS PER
ANNEXURE-F AND THEREBY ALLOW THE APPLICATION
FILED BY THE PETITIONER/PROPOSED DEFENDANT NO.3
UNDER ORDER 1 RULE 10 READ WITH SECTION 151 OF
THE CODE OF CIVIL PROCEDURE AND ETC.

   THIS PETITION COMING ON FOR PRELIMIANRY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
                      ORDER

The first respondent filed a suit for injunction. During the pendency of the suit, the petitioner filed an application under Order I Rule 10 of CPC seeking to implead himself. By the impugned order, the same was rejected.

2. Smt.Nirmala, the learned counsel appearing for the petitioner contends that the impugned order is erroneous and liable to be set aside. It is submitted that the reasons assigned by the Trial Court are unsustainable and it is imminent that the petitioner be impleaded as a defendant in the suit.

3. Heard learned counsel for the petitioner. The respondent Nos.2 and 3 are served and 3 unrepresented. Notice to the respondent No.1 has been held sufficient.

4. On hearing the learned counsel for the petitioner and examining the impugned order, I' am of the considered view that the petition requires to be allowed. O.S.No.250/1996 has been filed by the petitioner/proposed defendant herein against the plaintiff herein for declaration and injunction, which is presently seized of by this Court in R.S.A.No.127/2010, which is pending. The present suit is for injunction filed by the defendant therein. The suit schedule property in this suit as well as the earlier suit is one and the same. Under these circumstances, it would be just and necessary to hear the petitioner before any order is passed by the Trial Court. Since the subject matter is one and the same and when the impleading applicant has filed a suit against the plaintiff herein, it cannot be said that he has no interest in the suit schedule property. Even admittedly, as the suit schedule property is one and the same, the petitioner has to be heard in the matter.

5. For the aforesaid reasons, the order dated 8.6.2010 passed in O.S.No.481/2007 by the learned Principal Civil Judge (Jr.Dn.) Devanahalli is set aside. I.A.3/12 filed by the petitioner is allowed.

This petition is allowed accordingly.

Sd/-

JUDGE VGR

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