BEFORE THE HON'BLE MR. JUSTICE K v. ARAVIND WRIT PETITION No
Case Details
- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF MAY, 2025 BEFORE THE HON'BLE MR. JUSTICE K. V. ARAVIND WRIT PETITION No.36620/2019(GM-CPC) BETWEEN: 1 . MR. M. KHADER MOIDEEN, S/O LATE MR. HANEEFA RAWTHER, AGED ABOUT 69 YEARS, RESIDING AT No.71, ABW COLONY, NEW THIPPASANDRA, INDIRANAGAR, BENGALURU - 560075. (BY SRI JAGANATH K. M., ADVOCATE) AND: 1 . MR. SHAKEER HUSSAIN, S/O LATE MR. HANEEFA RAWTHER, AGED ABOUT 50 YEARS, RESIDING AT No.483, FIRST FLOOR, HIG, 6TH MAIN, 11TH CROSS, RMV II STAGE, DOLLARS COLONY, BENGALURU - 560094.
Legal Reasoning
2 . MR. M. SAINUL ABDEEN, S/O LATE MR. K. M. HANEEFA RAWTHER, AGED ABOUT 64 YEARS, RESIDING AT No.581, 9TH A MAIN ROAD, INDIRANAGAR 1ST STAGE, BENGALURU - 560038. (BY SRI V. ANAND, ADVOCATE FOR C/R2; R1 SERVED) ...PETITIONER …RESPONDENTS - 2 - THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH AND SET ASIDE THE IMPUGNED ORDER VIDE ANNEXURE-E DATED 08.07.2019, PASSED ON I.A.No.V IN O.S.No.25572/2015 BY THE COURT OF THE LVII ADDITIONAL CITY CIVIL & SESSIONS JUDGE, MAYO HALL UNIT AT BENGALURU, CCCH.No.58. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE K. V. ARAVIND C.A.V. ORDER The captioned writ petition challenges the order dated 08.07.2019 on I.A. No. V in O.S. No. 25572/2015 passed by the LVII Additional City Civil & Sessions Judge, Mayo Hall Unit, Bengaluru, wherein the Trial Court allowed the application filed by respondent No. 2 herein under Order I Rule 10(2) read with Section 151of CPC for his impleadment as a party defendant in the suit. 2. The petitioner filed O.S. No. 25572/2015 against respondent No. 1 for the partition of immovable property bearing Municipal No. 483, I Floor, HIG, VI Main, 11th Cross, RMV II Stage, Dollars Colony, Bengaluru (hereinafter referred to as the 'suit schedule property'). - 3 - The petitioner and the respondents are brothers, and their relationship is not in dispute. 3. Sri Jaganath K.M., learned counsel appearing for the petitioner, submits that the suit schedule property was purchased jointly by the plaintiff and defendant by raising a loan with HDFC Bank, Kasturba Road Branch, Bengaluru. The impleading applicant/respondent No. 2 has not invested or contributed any consideration towards the purchase of the suit schedule property. The suit schedule property is the exclusive property of the plaintiff and defendant. The impleading applicant has no right, title, or interest in the suit schedule property and, therefore, has no locus standi. He is not a necessary party in the suit for partition between the plaintiff and defendant. 3.1 Learned counsel submits that the impleading applicant filed O.S. No.25485/2015 against the plaintiff, seeking partition of another property, wherein the suit schedule property was not included, as the impleading applicant has no interest in the suit schedule property. The - 4 - said suit was compromised between the plaintiff and respondent No. 2. The claim made in the present suit is contrary to Order II Rule 2 (2) & (3) of the CPC. 3.2 Learned counsel further submits that the suit was filed in 2015, whereas the application for impleadment was filed at the fag end of the suit. It is also submitted that the only basis for the claim of a share in the suit schedule property is the legal notice dated 29.09.2011 (Annexure- F). The legal notice covers various financial transactions between the brothers but does not acknowledge the right, title, or interest of the impleading applicant in the suit schedule property. 4. Sri V. Anand, learned counsel appearing for respondent No. 2, submits that the questions of whether the impleading applicant contributed towards the purchase consideration of the suit schedule property, whether he has any right, title, or interest in the suit schedule property, and whether the suit schedule property is the exclusive property of the plaintiff and defendant are - 5 - matters to be adjudicated during trial and cannot be determined at the stage of considering the application for impleadment. 4.1 Learned counsel further submits that the suit was filed in the year 2015, and the application under Order I Rule 10(2) read with Section 151 of CPC was preferred in 2017. Hence, there was no delay in filing the application. 4.2 Learned counsel further submits that in the earlier suit, O.S. No. 25485/2015, wherein the plaintiff was a party, no objection was raised regarding the non-inclusion of the suit schedule property. It is further submitted that partial partition is permissible unless the rights in the remaining properties have been expressly relinquished. 5. Respondent No.1 is served and unrepresented. 6. Having heard learned counsel for the parties, the point that arises for consideration of this Court is, "Whether the Trial Court was justified in permitting the impleading applicant to be added as a party defendant in the suit?" - 6 - 7. The parties are not in dispute regarding their relationship, as it is undisputed that the petitioner and respondent are brothers. The settlement in O.S. No.25485/2015 establishes that the plaintiff and the impleading applicant had a joint interest in certain properties, and a few properties were partitioned. 8. The petitioner has vehemently contended that the suit schedule property was purchased exclusively by the plaintiff and defendant through a loan obtained from HDFC Bank and that the impleading applicant did not contribute towards the purchase consideration. Hence, the impleading applicant has no right, title, or interest in the property to claim a share in the partition suit. 9. The contentions raised by the parties cannot be adjudicated in the present writ petition, as they are matters for trial. Whether the impleading applicant has any right, title, or interest in the suit schedule property, or whether he contributed towards its purchase, is a question - 7 - of evidence to be determined by the Trial Court upon the parties leading their respective evidence. 10. The claim of the impleading applicant, based on the legal notice dated 29.09.2011, cannot be summarily rejected. A perusal of the legal notice indicates that the plaintiff demanded the impleading applicant to pay a sum of Rs.15,68,058/- as his share towards house renovation, business in readymade garments, and personal expenses. Learned counsel for the petitioner has categorically stated that the house renovation referred to in the legal notice pertains to the suit schedule property. If the impleading applicant had no right, title, or interest in the suit schedule property, there would have been no necessity for the plaintiff to demand Rs.15,68,058/- towards house renovation. Though the legal notice may not conclusively establish the impleading applicant's right in the suit schedule property, it prima facie indicates his claim. The contention that the impleading applicant had earlier preferred O.S. No.25485/2015 without including the suit - 8 - schedule property, thereby implying he has no right over it, is premature for acceptance at this stage. 11. The Trial Court, upon considering the aforesaid aspects, including the variance in business interests between the parties and their respective shares, has rightly concluded that the impleading applicant is a proper and necessary party to the suit. 12. In view of the above, this Court finds no infirmity in the order passed by the Trial Court and sees no grounds
Decision
for interference. Accordingly, the writ petition is dismissed. Sd/- (K. V. ARAVIND) JUDGE MV