IN THE HIGH COURT OF DHARWAD BENCH

DATED THIS THE 03 RD DAY OF SEPTEMBER 2020

BEFORE

THE HON’BLE MR.JUSTICE S.R. KRISHNA KUMAR

WRIT PETITION NO.113280/2019 (GM-CPC)

BETWEEN SRI.PRAKASH S/O LAXMANRAO KALYAN AGE: 64, OCC: SERVICE, (RETIRED) LORDS HOSPITAL (GERMAN HOSPITAL), DHARWAD-580001. ... PETITIONER

(BY SRI.M B GUNDAWADE, ADVOCATE)

AND

1. JAGADISH S/O LAXMANRAO KALYAN AGE: 58 YEARS, OCC: SERVICE, R/O: BHIMA NIVAS, MANJUNATH STREET, MALAMADDI, DHARWAD-580001.

2. SRI.RAVINDRA S/O LAXMANRAO KALYAN AGE: 61 YEARS, OCC: SERVICE, ENGINEER IN PWD (IRRIGATION), R/O: CLASS II 4/4, IRRIGATION COLONY, VISHWESHWARAYYA NAGAR, BELAGAVI-590001.

3. SMT.USHARANI D/O LAXMANARAO KALYAN AGE: 57 YEARS, OCC: RTD GOVERNMENT SERVICE, R/O.6/C, KHB QUARTERS, DHARWAD-580001.

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4. SHRI.HANAMANT S/O SHANKAR KATTI AGE: 57 YEARS, OCC: NILL, R/O: AKSHAYA APARTMENT (ARCADE), GOPALPUR, MALAMADDI, DHARWAD-07, NOW RESIDING AT C/O. KISHORE S.KATTI, C/O: M.R.ANGADI, NEAR KAREMMA DEVI TEMPLE, RAYANNA NAGAR, (TEJASWI NAGAR), DHARWAD-580002.

5. SHRI.KISHORE S/O SHANKAR KATTI AGE: 54 YEARS, OCC: BUSINESS, R/O: AKSHAYA APARTMENT (ARCADE), GOPALPUR, MALAMADDI, DHARWAD-07, NOW RESIDING AT C/O. KISHORE S KATTI, C/O: M.R.ANGADI, NEAR KAREMMA DEVI TEMPLE, SANGOLLI RAYANNA NAGAR, (TEJASWI NAGAR), DHARWAD-580002.

6. SHRI.RAJKUMAR S/O SHANKAR KATTI AGE: 46 YEARS, OCC: PRIVATE SERVICE, R/O: AKSHAYA APARTMENT (ARCADE), GOPALPUR, MALAMADDI, DHARWAD-07, NOW RESIDING AT C/O KISHORE S KATTI, C/O. M.R.ANGADI, NEAR KAREMMA DEVI TEMPLE, SANGOLLI RAYANNA NAGAR, (TEJASWI NAGAR), DHARWAD-580002.

7. SHRI.MANJUNATH S/O SHANKAR KATTI AGE: 43 YEARS, OCC: SERVICE, R/O: AKSHAYA APARTMENT (ARCADE), GOPALPUR, MALAMADDI, DHARWAD-07, NOW RESIDING AT C/O KISHORE S.KATTI.

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C/O.M.R.ANGADI, NEAR KAREMMA DEVI TEMPLE, SANGOLLI RAYANNA NAGAR, (TEJASWI NAGAR), DHARWAD-580002.

8. SMT.MADHU @ MADHUMATI W/O VIRUPAXI KALYAN AGE: 66 YEARS, OCC: RETIRED SERVICE, R/O: NO.5, MATHRU KRUPA, 1ST STATE, KRISHNA NORTH VILLAS, JALAHALLI POST, -560013.

9. SRI.AMIT S/O VIRUPAXI KALYAN AGE: 34 YEARS, OCC: PRIVATE SERVICE, R/O: NO.5, MATHRU KRUPA, 1ST STAGE, KRISHNA NORTH VILLAS, JALAHALLI POST, BANGALORE-560013.

10. SRI.DEEPAK S/O VIRUPAXI KALYAN AGE: 31 YEARS, OCC: PRIVATE SERVICE, R/O: NO.5, MATHRU KRUPA, 1ST STAGE, KRISHNA NORTH VILLAS, JALAHALLI POST, BANGALORE-560013.

11. MANOHAR S/O VIRUPAXI KALYAN AGE: 25 YEARS, OCC: PRIVATE SERVICE, R/O: NO.5, MATHRU KRUPA, 1ST STAGE, KRISHNA NORTH VILLAS, JALAHALLI POST, BANGALORE-560013.

12. SRI.CHANDRASHEKAR S/O LAXMANARAO KALYAN AGE: 69 YEARS, OCC: SERVICE, R/O: KAMALANI HOUSE MIG-72, 80 FEET ROAD, 2ND STAGE, KENGERI SATELLITE TOWN, BANGALORE-560010.

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13. SRI.VIJAY S/O LAXMANARO KALYAN AGE: 66 YEARS, OCC: SERVICE DEPUTY MANAGER, COMPUTER AND COMMUNICATION STATE BANK OF INDIA, PANAJI, GOA-403110.

14. SMT.SHAILIN W/O SANTAN FERNANDAS AGE: 65 YEARS, OCC: SERVICE POST MASTER, R/O: SRINIVAS APARTMENT, STATION ROAD, DHARWAD.

15. SRI.G.H.SAGUR AGE: MAJOR, OCC: SERVICE, R/O: AHALAXMI LAYOUT, GOKUL ROAD, HUBLI.

16. SHRI.SHRIDHAR RAMCHANDRA DESAI AGE: MAJOR, OCC: BUSINESS, R/O: AHIRWAD BUILDING, NEAR KALYAN COMPOUND, MANJUNATHPUR, MALAMADDI, DHARWAD-590001.

17. SHRI.MAHESH S/O SHIVAPPA LAYADAGUNDI AGE: 48 YEARS, OCC: GOVT.SCHOOL TEACHER, R/O: GUDOOR, TQ: HUNGUND, DIST: BAGALKOT-517101.

18. SMT.LAXMI W/O KARIYAPPA CHIKKANNAVAR AGE: 46 YEARS, OCC: GOVT.SERVICE, R/O: GALAGIHULAKOPPA, TQ: KALAGHATAGI, NOW RESIDING AT PLOT NO.102, SARASWATI NILAY, KIADB LAYOUT, HALIYAL ROAD, DHARWAD-580001. ... RESPONDENT(S)

(BY SRI.S N BANAKAR, ADV. FOR C/R2 SMT.PRAFULLA S.NAIK, ADV. FOR R3 NOTICE TO RESP. NOS.4 TO 18 IS DISPENSED WITH)

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THIS WP IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT QUASHING THE ORDER DATED 31.07.2019 PASSED BY PRINCIPAL DISTRICGT AND SESSIONS JUDGE, DHARWAD IN R.A.NO.165/2016 PRODUCED AT ANNEXURE-D PASSED ON I.A.NO.VI. AND ETC.

THIS PETITION COMING ON FOR HEARING INTERLOCUTORY APPLICATION, THIS DAY, THE COURT, MADE THE FOLLOWING:

ORDER

I have heard the learned counsel for the petitioner and learned counsel for respondent

Nos.2 and 3. Though the respondent No.1 has been served, he has chosen to remain un- represented.

2. The material on record indicates that it is not in dispute that the respondent No.2-

Ravindra filed a suit in O.S.No.73/2002 for partition and separate possession of his alleged share in the suit schedule properties and for other relief’s.

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3. In the aforesaid suit, while petitioner was arrayed as defendant No.7, respondent No.1-

Jagadish, was arrayed as defendant No.8. It is not in dispute that some of the defendants contested the suit, but the petitioner did not contest the suit. By judgment and decree dated 24.06.2016,l the trial Court partly decreed the suit in favour of plaintiff/respondent No.2 herein. Aggrieved by the same, the respondent No.1-Jagadish preferred an appeal in R.A.No.165/2016 before the First

Appellate Court. During the pendency of the appeal, petitioner herein as well as other defendants filed application under Order 1 Rule

10(6) of CPC seeking transposition as co- appellants in the said regular appeal in

R.A.No.165/2016. The application filed by the petitioner in this regard was numbered as IA.No.6 by the First Appellate Court. The said application having been opposed by the plaintiffs, the First

Appellate Court passed the impugned order

7 rejecting the application. Aggrieved by the same, the petitioner is before this Court by way of the present petition.

4. Learned counsel for the petitioner submits that though he did not contest the suit before the trial Court, he has been instructed that the petitioner intends to contest the suit on merits and that the petitioner is aggrieved by the impugned judgment and decree passed by the trial

Court. It is therefore submitted that since the petitioner is aggrieved by the impugned judgment and decree passed by the trial Court, it would be just and proper to permit him to prosecute the appeal as a co-appellant by transposing him.

5. Per contra, learned counsel for the respondent No.2/plaintiff would support the impugned order passed by the First Appellate

Court.

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6. After giving my anxious consideration to the rival submissions, I am of the considered opinion that without expressing any opinion on the merits/demerits of the rival submissions, in the light of the well settled principle that in the suit for partition all parties occupy the status of both the plaintiffs as well as defendants. Under these circumstances, it would be just and proper to set aside the impugned order passed by the First

Appellate Court insofar as the petitioner is concerned by permitting him to be transposed as co-appellant along with respondent No.1 in

R.A.No.165/2016. It is made clear that this order will not enure to the benefit of other defendants who filed similar applications before the First

Appellate Court seeking transposition.

7. In the result, I pass the following;

ORDER

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(a) The writ petition is hereby allowed.

(b) The impugned order insofar as it relates to

rejection of IA.No.6 filed by the petitioner

is hereby set aside.

(c) Petitioner is permitted to be transposed as

appellant No.2 before the First Appellate

Court in R.A.No.165/2016.

(d) It is made clear that setting aside of the

impugned order by this Court will not

enure to the benefit of other defendants

who are applicants in IA.Nos.5, 7 and 8,

which were rejected by the First Appellate

Court in the impugned order.

(e) All rival contentions between the parties

are hereby kept open to be decided on

merits.

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(f) It is further made clear that the First

Appellate Court shall dispose of the appeal

without being influenced by the

observations made by this Court or the

First Appellate Court in the impugned

order.

Both the counsels submits that the appeal

before the First Appellate Court is posted on

07.09.2020.

Having regard to the long pendency of the

said proceedings, the First Appellate Court is

directed to dispose of the appeal as

expeditiously as possible and preferably by

31.12.2020.

Sd/- JUDGE

msr