Sri S.N. Ramesh vs Sri S.N. Nataraj and Others

B.S. Patil, J.—Order passed by the Court below on I.A. No. 6 rejecting the request made by the petitioner herein to implead the proposed defendant as an additional defendant in the suit O.S. No. 489/2006 is challenged in this writ petition.

Petitioner Sri S.N. Ramesh is the 6th defendant in the suit. The suit is filed by the 1st respondent herein seeking partition and separate possession of two items of properties namely Sy. No. 1/7 measuring 38 guntas (item No. 1) and Sy. No. 11 measuring 2 acres (item No. 2) both situated at Shettigere village, Jala Hobli, Bangalore North Taluk. Defendant No. 6/Petitioner herein was placed exparte. Petitioner/6th defendant is the brother of the plaintiff. Plaintiff filed an application seeking to delete item No. 2 i.e. to say Sy. No. 11 from the plaint schedule stating that there was a compromise out of Court between himself and 5th defendant D. Ravishankar. As this application was not objected to by any of the defendants and as the present petitioner/6th defendant was placed exparte, the Court below accepted the said application and ordered to delete item No. 2 from the plaint schedule and as also the 5th defendant - Ravishankar from the array of parties. Thereafter, the 6th defendant petitioner herein, it is urged, has got the order placing him exparte set aside and filed written statement on 14.11.2006 seeking partition of the suit schedule properties by paying separate set of Court fee. The written statement filed is produced at Annexure-F. It is contended by the counsel for the petitioner that having come to know of the illegal deletion of Sy. No. 11 measuring 2 acres from the plaint schedule, petitioner has filed an application seeking amendment of the plaint by incorporating the land bearing Sy. No. 11 in the plaint schedule. A copy of the application filed is produced for the perusal of the Court during the course of arguments.

The present application to implead the purchaser of the property bearing Sy. No. 11 came to be filed by the 6th defendant-petitioner herein alleging that during the pendency of the suit, the plaintiff in collusion with the 1st defendant has sold the property in favour of one H. Anasyyoppa - the proposed defendant. He therefore filed this application to implead him as an additional defendant. The Court below has dismissed this application holding that item No. 2 of the suit schedule which has been purchased by the proposed defendant was no longer the subject matter of the suit and therefore the proposed defendant was not a proper and necessary party to the suit. The observations made in paragraph-3 of the order suggests that the Court below was confused with regard to the rank of the defendant in as much as it has proceeded to observe that the 5th defendant not being a party to the suit and the present suit having already been dismissed against him by way of deletion of his name, question of considering the request made under I.A. No. 6 would not arise.

I have heard the learned Counsel for the petitioner. Respondents though served have remained unrepresented.

It is not in dispute that the petitioner has filed written statement paying Court fee and seeking partition in respect of the joint family property. In the written statement be has also stated that Sy. No. 11 measuring 2 acres is one of the joint family properties. However, before he could file this written statement item No. 2 has been deleted from the plaint schedule by the plaintiff stating that there was a compromise between him and the 5th defendant - Ravishankar. Petitioner, has having come to know about it filed an application seeking amendment of the plaint to include the said item Sy. No. 11 in the suit schedule.

Counsel for the petitioner submits, that the said application is still pending consideration. Question of impleading the proposed defendant who is the purchaser of the property will depend upon the consideration of the application seeking amendment. The Court below ought to have considered both the applications, one filed for amendment of the plaint and the present application filed for impleading the proposed defendant-purchaser together and pass orders on the same. Instead, the Court below has chosen to dismiss the present application without considering the application filed for amendment. The procedure adopted by the Court below is therefore illegal.

In these circumstances, without expressing any opinion on the merits of the prayer made in the applications, this writ petition is allowed.

The impugned order is set aside. Court below is directed to consider both the applications (IA filed for amendment of the plaint filed by the present petitioner S.N. Ramesh and the application filed seeking to implead the proposed defendant H. Annayyappa) and pass a common order after notifying the proposed defendant.