KARNATAKA v. CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER

(BY SRI. SHEKARAPPA, ADVOCATE) AND:

SRI. HUVINA MALLESHAPPA S/O LATE NAGAPPA, AGED ABOUT 63 YEARS, R/AT P.ROPPA VILLAGE, PAVAGADA TOWN, KASABA HOBLI, PAVAGADA TALUK. TUMKURU DIST.-572101.

SRI. NAGENDRAPPA S/O LATE BUDAGI NARASAPPA, AGED ABOUT 63 YEARS, R/AT P.ROPPA VILLAGE, PAVAGADA TOWN, KASABA HOBLI, PAVAGADA TALUK, TUMKURU DIST.-572101 MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA …PETITIONER THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER …RESPONDENTS - 2 - NC: 2024:KHC:47393 WP No. 31026 of 2024 DATED 23.09.2024, PASSED BY THE ADDL. CIVIL JUDGE AND JMFC AT PAVAGADA, IN O.S.NO.4/2022, ON I.A.NO.5, FILED UNDER ORDER 1 RULE 10(2) READ WITH SECTION 151 OF CPC VIDE ANNEXURE-A, AND ALLOW I.A.NO.5 AS PRAYED ON THE FACTS AND CIRCUMSTANCE OF THE CASE. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE R. NATARAJ ORAL ORDER The applicant in O.S.No.4/2022 pending trial before the Additional Civil Judge and JMFC, Pavagada (henceforth referred to as 'Trial Court') has filed this petition challenging an order dated 23.09.2024 by which, her application (I.A.No.5) under Order I Rule 10(2) read with Section 151 of the Code of Civil Procedure, 1908 (henceforth referred to as 'CPC') to come on record was rejected.

2. The parties shall henceforth be referred to as they were arrayed before the Trial Court. The petitioner herein was the applicant, while the respondent No.1 was the plaintiff. The respondent No.2 was the defendant before the Trial Court.

(i) A suit in O.S.No.4/2022 was filed for specific performance of an agreement of sale dated 08.11.2013. - 3 - NC: 2024:KHC:47393 WP No. 31026 of 2024 (ii) The suit was contested by the defendant who denied the execution of the agreement and contested the claim for specific performance.

When the suit was set down for evidence of the parties, an application (I.A.No.5) was filed by applicant/petitioner herein to come on record on the ground that the suit property was the ancestral property of the defendant and the applicant/petitioner herein and that she had filed a suit for partition, which was pending consideration before the same Court.

This application was opposed by the plaintiff contending that the application was filed to protract the proceedings.

The said application was rejected by the Trial Court in terms of the impugned order.

Being aggrieved by the said order, the applicant has filed this petition.

The learned counsel for the applicant/petitioner contended that the suit property is the ancestral property and - 4 - NC: 2024:KHC:47393 WP No. 31026 of 2024 therefore, the defendant alone has no right to convey the suit property the plaintiff. He contends applicant/petitioner herein is therefore, entitled to come on record and contest the suit and also take steps to non-suit the plaintiff.

I have considered the submissions of the learned counsel for the applicant/petitioner. I have also perused the impugned order as well as the application and the plaint filed in O.S.No.4/2022.

In a suit for specific performance, the examination of the suit is only to the extent of finding out whether the defendant had executed the agreement of sale and whether he liable to conclude the sale transaction. If applicant/petitioner herein is having any interest, she is bound to establish the same in the suit filed by her for partition or contest the execution petition that may be filed by the plaintiff in case, a decree of specific performance is granted. She definitely cannot come on record in the suit for specific performance and thereby widen the scope of the suit. - 5 - NC: 2024:KHC:47393 WP No. 31026 of 2024

Hence, this writ petition lacks merit and dismissed. It is open for the petitioner to file appropriate application before the Trial Court to take both the suits for consideration and the Trial Court may proceed in accordance with law. Sd/- (R. NATARAJ) JUDGE PMR List No.: 1 Sl No.: 44