1 in the High Court of Karnataka at Bengaluru

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16 TH DAY OF NOVEMBER, 2015 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR W.P.NO.30082/2015 ( GM-CPC) BETWEEN: MR. MOHAMMED MEERA Y S/O LATE ABDULLA BEARY AGED ABOUT 53 YEARS R/AT RADHA NAYAK HIGH SCHOOL ROAD, YENNEHOLE POST, MARNE VILLAGE KARKALA TALUK UDUPI DISTRICT. ... PETITIONER (BY SRI.K CHANDRASHEKAR ACHAR, ADVOCATE) AND: 1. MRS. MARIYAMMA W/O M. ABDUL HUSSAIN AGED ABOUT 63 YEARS R/AT NAZIR MANZIL NEAR RADHA NAYAK HIGH SCHOOL MARNE VILLAGE, YENNEHOLE POST, KARKALA TALUK UDUPI DISTRICT. 2. MRS. REHAMATH W/O TAJUDDIN AGED ABOUT 33 YEARS R/AT NAZIR MANZIL NEAR RADHA NAYAK HIGH SCHOOL MARNE VILLAGE, YENNEHOLE POST, 2 KARKALA TALUK UDUPI DISTRICT. 3. MRS. ZINATH W/O IBRAHIM AGED ABOUT 43 YEARS R/AT NABEEL MANZIL NEAR RADHA NAYAK HIGH SCHOOL MARNE VILLAGE, YENNEHOLE POST, KARKALA TALUK UDUPI DISTRICT. 4. STATE OF KARNATAKA REP. BY DEPUTY COMMISSIONER UDUPI DISTRICT, UDUPI-01. 5. THE TAHSILDAR TALUK OFFICE, KARKALA KARKALA TALUK UDUPI DISTRICT-01. 6. THE REVENUE INSPECTOR AJAKAR HOBLI KARKALA TALUK UDUPI DISTRICT-01. ... RESPONDENTS (BY SMT. ANITHA R, HCGP FOR R-4 TO 6) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 30.04.2015 PASSED ON I.A.NO.9 IN O.S.NO.101/2014 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE & JMFC., KARKALA VIDE ANNEXURE-M. THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING: 3 O R D E R Heard Sri K.Chandrashekar Achar, learned Advocate appearing for petitioner and Smt.Anitha R, learned HCGP appearing for respondents-4 to 6. Perused the case papers. 2. Writ petitioner had filed an application – I.A.No.9 under Order 1 Rule 10(2) CPC to come on record as defendant in O.S.No.101/2014 contending interalia that he is necessary and proper party to the suit and plaintiffs are attempting to encroach upon puBlic property and proposed defendant had also complained to the office of Lokayukta against Officers of respondents-4 to 6 of their inaction namely, non stoppage of illegal construction that is Being put up By respondents-1 to 3 and said property Being a puBlic road which is leading to writ petitioner’s house and school located nearBy. Hence, he should Be Brought on record as necessary and proper party. OBjections have Been filed to said application and same came to Be considered By trial Court and By impugned order dated 4 30.04.2015 held that applicant is not connected to the suit property and his presence is not required to decide the issues in question, as such, it has rejected I.A.No.9 filed By writ petitioner which is assailed in this writ petition. 3. Sri Chandrashekar Achar, learned Advocate appearing for petitioner By reiterating the contentions raised Before trial Court, contends that authorities namely, respondents-4 to 6 having failed to protect puBlic property and having allowed respondents-1 to 3 to put up illegal constructions, had forced the writ petitioner who is neighBouring owner to suit property to lodge a complaint Before Office of Lokayukta and a direction has Been sought to the authorities to take steps to remove illegal constructions put up By them and respondents-4 to 6 under the guise of pendency of present suit are not taking any steps. Hence, in order to ensure that puBlic property is protected, writ petitioner intended to come on record as defendant No.4 and it has Been erroneously rejected By trial Court 5 without considering the contentions raised By the applicant i.e., writ petitioner in proper perspective. Hence, he prays for allowing the writ petition. 4. Perusal of the pleadings in O.S.No.101/2014 would indicate that respondents-1 to 3 herein have filed a suit against respondents-4 to 6 for the relief of perpetual injunction from interfering with their alleged peaceful possession and enjoyment of ‘B’ schedule property and dispossessing them from respective portions of suit schedule property which is said to Be in their possession and enjoyment. 5. In a suit for Bare injunction, plaintiff Being a dominus litis has a right to chose against whom he intends to oBtain an order of injunction and he cannot Be forced to implead parties to the said suit. In the instant case, undisputedly, proposed defendant No.4 i.e., writ petitioner herein is not claiming any right over suit schedule property except contending that it is a puBlic property. Undisputedly, defendants-1 to 3 namely, respondents-4 to 6 herein have appeared and 6 filed their written statement and are contesting the suit. Order of injunction would Be Binding on parties to the suit only and undisputedly, writ petitioner not Being a party to the suit would Be entitled to prosecute his claim if any over puBlic property, in the manner known to law and as such, order of trial Court rejecting his application to Be impleaded as a party to the suit cannot Be faulted with. There is no jurisdictional error committed By the trial Court. Hence, writ petition stands dismissed suBject to oBservations made herein aBove. SD/- JUDGE *sp .

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