IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 11THDAY OF SEPTEMBER, 2015
BEFORE
THE HON'BLE MR.JUSTICE A.V. CHANDRASHEKARA WRIT PETITION NO.7998 OF 2013 (GM-CPC)
BETWEEN
GLENN FARIA ALIAS GLENN FARIAS
AGED ABOUT 60 YEARS
S/O JULIAN DAVID FARIA
RESIDING AT NO. 169
BELA VISTA WARDO
SIRCALIM TIVIM,
BARDEZ, GOA 403 503
REPRESENTED BY HIS G.P.A HOLDER
MR. LIONEL FARIAS
AGED ABOUT 74 YEARS
RESIDING AT NO.406
ALBUQUERQUE HOUSE
PANDESHWAR
MANGALORE-575 001 … PETITIONER (BY SRI.K.S.RAVI, Adv.,)
AND
1. MR BASANTH ALIAS
VASNATH NAYAK
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AGED ABOUT 68 YEARS
S/O GOPALAKRISHNA
CHARDAPPA NAYAK
RESIDING AT A-2/5
URMI APARTMENTS
FATEH GUNJ, BARODA-2
MAHARASHTRA STATE
2. SMT SUMANA PRABHU
AGED ABOUT 65 YEARS
W/O LATE LAKSHMANA PRABHU
RESIDING AT MADHUBAN
KAILAS COLONY
BEHIND ITI, KONCHADI POST
MANGALORE
D.K. DISTRICT
… RESPONDENTS
(BY SRI. K.SHASHIKANTH PRASAD,
Adv FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DT.16.1.2013 PASSED BY THE
LEARNED II ADDL. CIVIL JUDGE, AND JMFC
MANGALORE IN O.S.651/12 ON I.A. III FILED BY THE RESPONDENT/DEFENDANT NO.2 U/O RULE 10 OF CPC FOR SEEKING THE HON'BLE COURT TO RETURN THE
PLAINT, AS THIS COURT HAS NO TERRITORIAL
JURISDICTION TO ENTERTAIN THE SUIT I.E.
ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:
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ORDER
Heard learned Counsel for the parties. The matter is listed in 'B' Group. The matter is taken up for disposal with their consent.
2. Petitioner is the sole plaintiff in an original suit bearing No.651/2012 pending on the file of the Civil Judge & JMFC, Mangalore, D.K. District. During the pendency of the suit, one lady by name Sumana Prabhu chose to file an application in terms of Order I Rule 10[2] of CPC, requesting her to come on record as Defendant No.2 to contest the suit on the ground that her grandfather Sujir Gopal Krishna Charadappa Nayak had acquired mulgeni right for immovable property No.79, Padavu Village, in Sy. No.48-1B measuring 4.25 acres from erstwhile landlord, namely, Reverend Father Paul William Farias through a registered Deed dated 29.7.1955. Since then, the entire property was stated to be in the absolute enjoyment and possession of her father's family including herself. Since the date of acquiring
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mulgeni right, her father had paid geni to the landlord from time to time including the plaintiff herein.
3. Her father expired on 14.2.1974 and subsequent to his death, the entire immovable property measuring 4.25 acres is stated to have devolved on them jointly and severally as co-owners. The Reverend Father Paul William Farias is stated to have executed a Will on 1.12.1973 and bequeathed the property in his possession and right to collect geni who are in possession of the same, in favour of the plaintiff. The plaintiff is none other than brother's son of Reverend Father Paul Williams Farias. The said Will was probated by the Executor in P & SC No.42/1975. According to the applicant, the plaintiff is not entitled to any claim much less discretionary relief of prohibitory injunction in any manner. The plaintiff is stated to have purposely left out the applicant in the suit and therefore she is constrained to make the application.
4. This application was contested by filing objections by the plaintiff and ultimately the learned Judge has chosen to allow
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the applicant to come on record as Defendant No.2. It is this order dated 16.1.2013 passed in OS No.651/2012, which is called in question on various grounds.
5. Learned Counsel for the Petitioner has relied upon the decision of this Court in 'SMT. KALAVATHI RATHNAKAR SATE Vs. AMBUJAMMA' [2001 [2] KLJ 262], to contend that the application by a third party claiming ownership and possession to come on record as party in the suit filed for injunction is not maintainable.
6. In the present case, the learned Judge has opined that presence of the Applicant as Defendant No.2 would help the Court to arrive at a proper conclusion and to give finding about possession. Further, the facts would disclose that the property in question originally belonged to Reverend Father Paul William Farias and applicant's father is stated to have taken the same for and on behalf of the joint family through the registered deed. Anyway, nothing comes in the way of the Court below dealing with
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the injunction suit incidentally looking into the question of title. The discretion exercised by the learned Judge of the Trial Court is neither perverse nor improper. Hence, no good grounds are made out to interfere with the said order.
7. The decision referred to by learned Counsel for the Petitioner is clearly distinguishable on facts and hence it is of no assistance to the petitioner. Accordingly, the petition is dismissed.
8. Whatever observation made by this Court or by the Trial Court, would not come in the way of the Court below dealing with the case on merits. Since the suit is of the year 2012, the learned trial Judge to dispose of the suit as early as possible preferably within a period of six months from the date of receipt of this order.
9. Registry to send copy of this order to the Trial Court. Sd/-
JUDGE
AN/- Ct -:anb
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