Smt. Susheelamma, D/o Late Thimmakka, Aged about 45 years R/at Chikkanagamangala Village, Sarjapura Hobli Anekal, Taluk Bangalore-562106 and another vs Smt. Kanakaratnamma, W/o Late Krishna Reddy, Aged about 65 years R/at Doddakannelli Villa

Budihal, R.B., J. - Since the common order has been passed by the trial Court on the applications I.As. 17 and 18, these two writ petitions were taken up together to dispose of them by this common order.

These two writ petitions are filed by the petitioners requesting the Court to set aside the order dated 30.07.2015 vide Annexure-D passed by the trial Court and requested the Court to allow the applications I.As. 17 and 18.

Heard the arguments of the learned counsel appearing for the petitioners in both the petitions, learned counsel for respondent No. 1 and also the learned counsel appearing for proposed impleading applicant.

Learned counsel appearing for the writ petitioners herein during the course of arguments made the submission that the plaintiff-Thimmakka filed the original suit for partition, and separate possession and during the pendency of the said suit, said Thimmakka expired and the application was filed by the legal representatives 1(a) to (c) to come on record in plaintiff�s place i.e. the deceased Thimmakka. Same was allowed and the plaint was amended.

Learned counsel further made the submission that subsequently two more legal representatives of said Thimmakka claiming as they are also the legal representatives filed the applications under Order 1, Rule 10 (2) of C.P.C. so also seeking of amendment of the plaint i.e. to insert one more suit property in the plaint before the trial Court. Learned counsel submitted that these two applications were opposed by the respondents by filing statement of objections. The trial Court after considering the applications I.As. 17 and 18 dismissed those two applications by passing the common order. Learned counsel further submitted that the order passed by the trial Court dismissing both the applications is illegal and it is only based on the ground that applications are barred by limitation. It is the contention of the learned counsel appearing for the writ petitioners herein that the writ petitioners who claim to be the legal representatives of Thimmakka after coming to know about the death of the deceased immediately made such applications before the trial Court. It is also his contention that the legal representatives 1(a) to (c) purposefully have not included these two writ petitioners as legal representatives of Thimmakka, they themselves came on record as legal representatives. Hence, counsel submitted that when they are claiming rights by way of legal representatives of Thimmakka and the suit is for partition, they are also entitled to their legitimate share in the suit property. Hence, counsel submitted that rejection of application by the trial Court is not legal. Hence, he submitted to allow the writ petition, so also to allow I.As. 17 and 18 by setting aside the order passed by the trial Court. In support of his contention, learned counsel for the writ petitioners relied upon the following decisions:

2010 (4) AIR Kar R 708 in the case of Smt. Vasanthamma v. Siddaveerappa and Ors.

2013 (4) KCCR 3170 (DB) in the case of Gopalaiah and others v. Smt. Jayakumari and others.

Hence, counsel made the submission that in view of the said legal position so also the factual aspect as mentioned in the applications and the claim made in the writ petitions, the writ petitioners are entitled to come on record as the legal representatives of deceased-Thimmakka. Hence, counsel submitted to allow both the writ petitions.

Per contra, learned counsel appearing for respondent No. 1-defendant during the course of his argument made the submission that earlier also the applications were filed and the trial Court considering those applications on merits, out of two applications one application was allowed by the trial Court and the learned counsel made the submission that the earlier applications were also rejected by the trial Court but only partly amendment was allowed in respect of one of the applications. When the writ petitions filed before this Court challenging the order passed by the trial Court on those applications, this Court dismissed the writ petition confirming the order passed by the trial Court. Hence, it is his contention when similar application was partly considered by the trial Court and rejected the writ petitioner cannot maintain these applications I.As. 17 and 18 on the same ground. Hence, counsel submitted that there is no merit and same are to be rejected.

Learned counsel appearing for the proposed plaintiff 3(C) during the course of her argument made the submission that earlier applications considered by the Court below and they were dismissed and hence, the petitioners cannot maintain the present applications.

I have perused the grounds urged in the writ petitions. Common impugned order passed by the trial Court on the applications I.As. 17 and 18 and also reasons adopted by the trial Court for rejecting the applications which are challenged in these two writ petitions. Perusing the reasons given by the trial Court which goes to show that even earlier after the death of Thimmakka one Sri. Nagaraj and two others filed applications and came on record as plaintiff No. 1(a) to (c). Later, they filed applications I.As. 12 and 13 praying for permission to implead K. Narayan and others as additional defendants in the case and also for amendment of the plaint. The said applications came to be disposed of as per order dated 27.08.2014. As per the said order, the trial Court dismissed the application filed under Order 1, Rule 10 (2) of CPC and allowed I.A. 13 permitting the legal heirs of Thimmakka to amend the plaint by para 3(v)(w) as prayed in that application.

The legal heirs 1(d) to (e) filed two applications I.As. 17 and 18 seeking adding some more parties as the defendants in the said case and also for the amendment of the schedule of the plaint for inserting some more property. But looking to the order of the trial Court, the trial Court appreciated that earlier also same applications were filed and those applications were considered on merits by the trial Court. Ultimately, applications came to be disallowed and when the writ petition was filed in W.P. No. 50672/2014, the said writ petition came to be dismissed. Hence, the trial Court in its order made it clear that when similar prayer was made in the earlier applications I.As. 12 and 13 and they were not succeeded subsequently after the dismissal of said applications writ petition came up for the present applications. Hence, the trial Court gave the reasons that the applications are not maintainable as the case has already been considered and earlier applications were dismissed. I have also perused the decisions relied upon by the learned counsel appearing for the writ petitioners herein which are referred above.

Perused the facts and circumstances of the case, reported decisions and also the facts and circumstances of the case on hand and the dismissal of earlier applications which has been upheld by this Court. They are not exclusively one and the same. Therefore, the decisions relied upon by the learned counsel appearing for the writ petitioners will not come to the aid and assistance of the writ petitioners herein. When the similar applications were already considered and they are dismissed by the trial Court, I do not find any justifiable and valid ground to interfere into the said order of the trial Court. Accordingly, both the writ petitions are hereby dismissed. Impleading applicant 3(c) can agitate the matter before the trial Court by filing necessary application.