Writ Petition No. 4066 of 2016 · The High Court
Case Details
- 1 - NC: 2025:KHC:11226 WP No. 4066 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 4066 OF 2016 (GM-CPC) BETWEEN: 1. MRS LILLY D' SOUZA AGED ABOUT 79 YEARS W/O LATE RUZARIO D' MELLO 2. MR IRINI D' MELLO AGED ABOUT 58 YEARS 3. MR SIMON D' MELLO AGED ABOUT 54 YEARS 4. MR FRANCIS D' MELLO AGED ABOUT 49 YEARS 5. MR NEENA D' MELLO AGED ABOUT 63 YEARS Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA NO.2 TO 5 ARE THE CHILDREN OF LATE RUZARIO D' MELLO ALL ARE ROMAN CATHOLICS, SHANKARABETTU, POST : DURGA VILLAGE - 574 104 KARKALA TALUK UDUPI DISTRICT.
Legal Reasoning
(BY SRI. K CHANDRANATH ARIGA .,ADVOCATE) …PETITIONERS AND: 1. MR. JUMAM D' MELLO AGED ABOUT 76 YEARS S/O LATE GABRIEL D MELLO - 2 - NC: 2025:KHC:11226 WP No. 4066 of 2016 BOBBALA, TELLAR ROAD KARKALA KASABA VILLAGE KARKALA TALUK UDUPI DISTRICT - 574104 (SINCE DECEASED REP BY PETITIONER NOs.2 TO 5 AMENDED AS PER VIDE ORDER DATED 11.06.2021) 2. MR BHOJA POOJARY AGED ABOUT 70 YEARS S/O RUKMAYYA POOJARY BOBBALA, TELLAR ROAD KARKALA KASABA VILLAGE - 574 104 UDUPI DISTRICT. 3. MRS MARY D' MELLO AGED ABOUT 63 YEARS W/O MR JOHN D' SOUZA AND D/O LATE GABRIEL D MELLO MARIA GREEN GARDEN AJEKAR, MARNE VILLAGE KARKALA TALUK UDUPI DISTRICT - 574 104 (BY SRI. SANATH KUMAR SHETTY K.,ADVOCATE FOR R2; R3 SERVED AND UNREPRESENTED) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS OF O.S.NO.149/2010 IN THE FILE OF THE PRL. CIVIL JUDGE AND A.C.J.M KARKALA QUASH THE ORDER DTD.20.11.2015 IN I.A.NO.XI IN O.S.NO.149/2010 [ANNEX-H] PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC KARKALA AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL - 3 - NC: 2025:KHC:11226 WP No. 4066 of 2016 ORAL ORDER Present Petitioners who had filed an application in I.A.No.XI under Order 1 Rule 10 read with Section 151 of CPC seeking to add themselves as plaintiff Nos.2 to 6 in a suit in O.S.No.149/2010 on the file of Principal Civil Judge & JMFC, Karkala (hereinafter referred to as 'the Trial Court' for short) are before this Court being aggrieved by the order dated 20.11.2015, by which, the Trial Court has rejected the said application. 2. The above suit in O.S.No.149/2010 has been filed by one Mary D' Mello the respondent No.3 herein seeking relief in the nature of judgement and decree declaring the decree dated 15.03.2003 passed in O.S.No.53/2003 is not valid and binding on the plaintiff and for mandatory injunction directing defendant No.2 from removing the structures, buildings and the shed from the plaint 'A' schedule properties and for other consequential reliefs. 3. It appears that one Gabriel D' Mello, the propositus, had two sons and a daughter namely, Ruzario D' Mello, Jumam D' Mello and Mary D' Mello. Upon demise of said Gabriel D'Mello - 4 - NC: 2025:KHC:11226 WP No. 4066 of 2016 a suit for partition in O.S.No. 316/1990 came to be filed by his son Ruzario D' Mello which was decreed and a final decree proceedings were consequently initiated in FDP No.21/2010. In terms of which land bearing Sy.No.12/2P4 and Sy.No.12/2P5 and other survey numbers which are subject matter of present suit in O.S.No.149/2010 were allotted to the shares of Ruzario D' Mello and Mary D' Mello. That one Boja Poojari, defendant No.2 in the present suit had filed a suit in O.S.No.53/2003 against Mr. Jumam D'Mello, the defendant No.1 in the present suit and had obtained a degree of declaration of he being the absolute owner of the property subject matter of the present suit. 4. It is under these circumstances, Mary D' Mello filed the present suit seeking the relief of declaration to declare the decree dated 15.03.2003 passed in O.S.No.53/2003 as not valid and not binding on her. Since the applicants herein were also allotted the very same portion of the property by virtue of final decree proceedings in FDP No.21/2010, filed the present application in I.A.No.XI seeking to come on record, inasmuch as they also have subsisting right in the suit properties and that they are necessary and proper parties for proper adjudication - 5 - NC: 2025:KHC:11226 WP No. 4066 of 2016 of the suit. It is this application which came to be rejected by the Trial Court in impugned order passed on I.A.No.XI. 5. Learned counsel for the petitioners taking this Court through the records also furnishes a copy of an order dated 04.09.2018 passed by the Co-ordinate Bench of this Court in W.P.No.1524/2016, wherein under similar circumstances the petitioners herein who had sought to come on record as plaintiffs in O.S.No.145/2010 which was filed by very same Mary D' Mello against Jumam D'Mello and one Govinda Devadiga, under identical facts situation of the matter this Court had permitted them to come on record as plaintiffs. Thus, he submits that since the subject matter of the suit being the property which is allotted to the shares of said Mary D' Mello as well as the present petitioners in the FDP proceedings, a prior decree which has been obtained by defendant Nos.1 and 2, is being questioned the petitioners are necessary parties for the effective adjudication of the lis. 6. Per contra, learned counsel for the defendant No.2 Bhoja poojari submits that the rights being claimed by the parties are different and distinct. In that he submits after - 6 - NC: 2025:KHC:11226 WP No. 4066 of 2016 passing of the final decree in FDP No.21/2010, the property has never remained as a single unit. Petitioners and the original plaintiffs have got the different and distinct shares in the property, as such same cannot be joined in the present suit under the guise of impleading them as plaintiffs, inasmuch as the causes of action are different. Hence, he submits if at all they have any right, they may have to seek independent remedy and not by way of being added as plaintiffs in the present suit. He further submits that the issue with regard to limitation may also have to be considered independently which cannot be done if the petitioners are added as plaintiffs in the present suit. Hence, seeks for dismissal of the petition. 7. Heard and perused the records. 8. It is not in dispute that the properties subject matter of the present suit in O.S.No.149/2010 are the one which were allotted to the shares of Mary D' Mello and the petitioners herein in FDP No.21/2010. The case of contesting defendant No.2 is that he had perfected his title by virtue of decree dated 15.03.2003 passed in O.S. No.53/2003 which was much prior to passing of the final decree. The Trial Court while rejecting the application, at paragraphs 7 and 8 though - 7 - NC: 2025:KHC:11226 WP No. 4066 of 2016 has taken note of these events, has however observed that the plaintiff Mary D' Mello has setup the present petitioners to come on record as plaintiffs to overcome the question of limitation. The Trial Court has also observed that the petitioners herein cannot be expected to be unaware of the transaction subject matter of the suit in O.S.No.53/2003. Thus, on these grounds the Trial Court has rejected the application. 9. As rightly pointed out by the counsel for the petitioners all that is required for the purpose of consideration of an application under Order 1 Rule 10 of CPC is that whether the presence of the parties sought to be impleaded are necessary or proper? and that whether in their absence an effective decree could be passed?. Original plaintiff the Mary D' Mello has sought for a declaration to declare that the decree obtained in O.S.No.53/2003 is not binding which invariably pertains to the property being claimed by the petitioners herein as well. One other ground requiring consideration is avoiding of multiplicity of proceedings. 10. Since the original plaintiff Mary D'Mello and the present petitioners are claiming common rights in respect of a common property having acquired under a common final - 8 - NC: 2025:KHC:11226 WP No. 4066 of 2016 decree, it cannot be said that they have different cause of action to canvas, more particularly, according to the defendant No.2, as and when the decree was passed the property was not divided and subsequent event of bifurcation of the property by final decree proceedings would not have much effect. 11. As regards the issue of limitation the same needs to be looked at in terms of Section 21 of the Limitation Act. Keeping open the question of limitation and other contentions as may be available under law to be urged before the trial court, petition is allowed. The impugned order dated 20.11.2015 passed in I.A.No.XI is set aside. Petitioners are permitted to come on record as plaintiff Nos. 2 to 6 in the suit. It is made clear setting aside of the order and allowing the application shall not be construed as expression of opinion on merits of the case as all the contentions including one on limitation is kept open. SD/- (M.G.S. KAMAL) JUDGE RU, List No.: 1 Sl No.: 3