Smt Kamali Bai vs Shekara Naika

-1- NC: 2025:KHC:16 WP No. 47770 of 2017

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 6TH DAY OF JANUARY, 2025

BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 47770 OF 2017 (GM-CPC) BETWEEN:

SMT. KAMALI BAI, W/O. GANGYA NAIKA, R/AT. BALEKOPPA VILLAGE, MUDDANAHALLI POST, SHIKARIPURA TALUK, SHIVAMOGGA DISTRICT-577 427. ...PETITIONER (BY SRI. ANIL BHEKAR, ADVOCATE)

AND:

1. SHEKARA NAIKA, DEAD BY HIS LR'S SHANTHI BAI, Digitally signed W/O. SHEKARA NAIKA, by MEGHA AGED ABOUT 62 YEARS, MOHAN R/O JALIMARADI THANDA, Location: SHIKARIPUR TALUK-577 427, HIGH COURT SHIVAMOGGA DISTRICT. OF KARNATAKA 2. SUSHEELA BAI, W/O. GADIGYANAIKA, AGED ABOUT 42 YEARS, R/O. BEGUR MARADI TANDA, SHIKARIPUR TALUK-577 427, SHIVAMOGGA DISTRICT. -2- NC: 2025:KHC:16 WP No. 47770 of 2017

3. VINODABAI, W/O. SAMLYANAIKA, AGED ABOUT 40 YEARS, R/O. SIDDANAPURA VILLAGE, SHIKARIPUR TALUK-577 427, SHIVAMOGGA DISTRICT.

4. NAGANAIKA, S/O. SHEKARA NAIKA, AGED ABOUT 35 YEARS, AGRICULTURIST, R/O. JALAMARADI THANDA, SHIKARIPUR TALUK-577 427, SHIVAMOGGA DISTRICT.

5. GANGYA NAIKA, S/O. REKHYANAIKA, AGED ABOUT 50 YEARS, AGRICULTURIST, R/O BALEKOPPA VILLAGE, SHIKARIPUR TALUK-577 427, SHIVAMOGGA DISTRICT.

6. SETHIBAI, W/O. PECKYANAIKA, HOUSE HOLD WORK, AGED ABOUT 60 YEARS, R/O. JALIMARADI THANDA, SHIKARIPURA TALUK-577 427, SHIVAMOGGA DISTRICT.

7. SONAKIBAI, W/O. PEEKYANAIKA, AGED ABOUT 55 YEARS, HOUSEHOLD WORK, JALIMARADI THANDA, SHIKARIPUR TALUK-577 427, SHIVAMOGGA DISTRICT.

8. GOWRI BAI, W/O. PEEKYANAIKA, -3- NC: 2025:KHC:16 WP No. 47770 of 2017

AGED ABOUT 62 YEARS, HOUSE HOLD WORK, JALIMARADI THANDA, SHIKARIPUR TALUK-577 427, SHIVAMOGGA DISTRICT.

9. DOODYANAIKA, S/O. PEERYANAIKA, AGED ABOUT 43 YEARS,

10. PARAMESH NAIK, S/O PEERYANAIKA, AGED ABOUT 40 YEARS,

R9 AND 10 ARE RESIDENTS OF JALIMARADI THANDA, SHIKARIPUR TALUK-577 427, SHIVAMOGGA DISTRICT.

11. SMT.SHARADI BAI, W/O. RAVINAIKA, AGED ABOUT 38 YEARS, R/O. AMBARGOPPA VILLAGE, SHIKARIPUR TALUK-577 427, SHIVAMOGGA DISTRICT.

12. SMT.SUSHEELIBAI, W/O. SHIVAYANAIKA, AGED ABOUT 43 YEARS, R/O CHUNCHUNAKOPPA VILLAGE, SHIKARIPUR TALUK-577 427, SHIVAMOGGA DISTRICT.

13. PUTTAPPA, S/O. RANGAPPA, AGED ABOUT 75 YEARS, R/AT BALEKOPPA VILLAGE, SHIKARIPUR TALUK-577 427, SHIVAMOGGA DISTRICT. -4- NC: 2025:KHC:16 WP No. 47770 of 2017

14. MALLESHAPPA, S/O. RANGAPPA, AGED ABOUT 50 YEARS, R/AT. BALEKOPPA VILLAGE, SHIKARIPUR TALUK-577 427, SHIVAMOGGA DISTRICT.

15. BASAVANTHAPPA, S/O RANGAPPA, AGED ABOUT 45 YEARS, R/AT. BALEKOPPA VILLAGE, SHIKARIPUR TALUK-577 427, SHIVAMOGGA DISTRICT.

16. GOURAMMA, W/O. SHANKARAPPA, AGED ABOUT 43 YEARS, DEFENDANTS 9 TO 12 ARE ALL R/AT. BALEKOPPA VILLAGE, SHIKARIPUR TALUK-577 427, SHIVAMOGGA DISTRICT.

17. SMT. PEERI BAI, W/O. DURGYANAIKA, AGED ABOUT 70 YEARS, HOUSEHOLD WORK, R/O. APINAKATTE VILLAGE, SHIKARIPUR TALUK-577 427, SHIVAMOGGA DISTRICT.

18. SMT. SEETHI BAI, W/O. HANUMANAIKA, AGED ABOUT 67 YEARS, HOUSE HOLD WORK, R/O SIDDAPURA VILLAGE, SHIKARIPUR TALUK-577 427, SHIVAMOGGA DISTRICT. ...RESPONDENTS (BY SRI. R.V. JAYAPRAKASH, ADVOCATE FOR R4; R1, 2 AND 3 SERVED AND UNREPRESENTED) -5- NC: 2025:KHC:16 WP No. 47770 of 2017

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.8.9.2017 PASSED ON I.A.NO.14 FILED UNDER ORDER I RULE 10 OF CIVIL PROCEDURE CODE IN O.S.NO.137/2006 ON THE FILE OF CIVIL JUDGE (JR.DN) AND JMFC AT SHIKARIPURA TALUK OF SHIVAMOGGA DISTRICT VIDE ANNEX-A AND ETC.

THIS PETITION, COMING ON FOR PRILIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

ORAL ORDER

Aggrieved by the order passed in I.A.No.14 in

O.S.No.137/2006 dated 08.09.2017 by the Civil Judge (Senior

Division) and JMFC, Shikaripura, the proposed defendant is

before this Court.

2. The I.A. is filed by the plaintiffs seeking to implead

the petitioner herein, who is the wife of defendant No.1. It is

their case that they have filed the suit for partition and

separate possession. It is their case that defendant No.1 was

managing the joint family of plaintiff and defendants and he

colluding with the revenue officers, got mutated his name and

his wife's name to an extent of 2 acres 37 guntas and 3 acres

respectively in Sy.No.12/1 of Balekoppa Village in Shikaripur

Taluk, behind their back without any notice. According to them, -6- NC: 2025:KHC:16 WP No. 47770 of 2017

defendant No.1 has created the Jubani Hissa on 08.03.1988

and on 14.01.1988 as per their whims fancies and in that, the

proposed defendant is shown as party to that Jubani Hissa and

an extent of 3 acres is shown to her share and they have also

created one more registered partition deed which is marked as

Ex.D1. In that the proposed defendant is shown as 6th party

and also her share is 3 acres, as such she is a proper and

necessary party to the present proceedings. The same is

objected by the petitioner herein and she has filed her

objections.

3. The Trial Court by order impugned had allowed the

application. While allowing the application, the Trial Court had

observed that it is the case of the proposed defendant that the

plaintiff had knowledge about the allotment of the share to the

proposed defendant, but this application was filed when the

matter was reserved for arguments and it is barred by law of

limitation. The Trial Court had observed that the provision of

law of limitation is not applicable to the application under Order

1 Rule 10 of CPC. The Trial Court had also observed that as per

Order 1 Rule 10 of CPC, the Court may at any stage of the suit

substitute or add the parties if their presence is necessary for -7- NC: 2025:KHC:16 WP No. 47770 of 2017

determination of the real dispute in issue and some of the

properties have been allotted to the proposed defendant and

her presence is certainly necessary to determine the actual and

real dispute between the parties. Accordingly, the Trial Court

had allowed the application.

4. Learned counsel appearing for the petitioner/

proposed defendant submits that all the transactions that have

taken place are about 14 years back and at the fag end of the

trial, the present application came to be filed. Why he has not

come up with such an application at the earliest point of time

was not considered by the Trial Court and even on that ground,

the application ought to have been dismissed by the Court. It is

further submitted that the Trial Court ought not to have allowed

this application without giving proper reasons.

5. Notice to respondent Nos.1 to 3 was served and no

vakalath is filed on their behalf. Learned counsel appearing for

respondent No.4 submits that the Trial Court had rightly

considered the application and considering the fact that it is a

suit for partition and the presence of the proposed defendant is

necessary and the Trial Court had rightly allowed the -8- NC: 2025:KHC:16 WP No. 47770 of 2017

application. He submits that if this application is allowed, no

prejudice would be caused to the defendant and the writ

petition is liable to be dismissed.

6. Having heard the learned counsels on either side,

perused the material available on record. The suit is for

partition and separate possession. Already the petitioner's

husband is arrayed as defendant No.1 in the suit. It is their

case that some of the properties belonging to the joint family

were mutated in the name of defendant No.1 and this proposed

defendant. A partition deed also came into existence wherein a

share is given to the proposed defendant and according to

them her presence is very much necessary to adjudicate the

dispute between the parties. As rightly contended by the

learned counsel for the petitioner, such an application ought to

have been filed at an earliest point of time. It appears from the

record that this application is filed at a belated stage, but

looking at the substantial justice and to give a quietus to the

litigation, the presence of the petitioner who is the proposed

defendant is very much necessary and the Trial Court had

rightly considered all these aspects and rightly allowed the -9- NC: 2025:KHC:16 WP No. 47770 of 2017

application. Hence, this Court finds no reasons to interfere. In

that view of the matter, this Court is passing the following:

ORDER

i. Accordingly, the writ petition is dismissed.

ii. All I.As., in the writ petition, shall stand closed.

SD/-

(LALITHA KANNEGANTI) JUDGE

BN List No.: 1 Sl No.: 5