HANUMANTHARAYAPPA Vs. SAKAMMA, SRI ANJINAPPA AND SRI LENKAPPA (SRI ASHWATHAPPA, SMT. LAKKAMMA AND SRI HANUMANTHAPPA)

JUDGEMENT

(1.) THIS petition is filed challenging the order dated 7.4.2012 passed on I.A. No. XIV in O.S. No. 175/2004 on the file of Addl. Civil Judge and JMFC, Madhugiri, refusing to issue notice to the proposed defendants No. 4 and 5. O.S. No. 175/2004 is filed before the Principal Civil Judge (Jr.Dn) at Madhugiri by the plaintiff seeking partition of the suit schedule properties and claiming share in the said properties. The proposed defendants No. 4 and 5 are the daughters of the first defendant. An application under Order 1 Rule 10(2) read with Section 151 of CPC was filed by the plaintiff seeking to bring the proposed defendants as defendants No. 4 and 5 before the trial Court. Though the said application was not opposed by the opposite parties, the learned trial Court rejected the said application holding that the proposed defendants No. 4 and 5 are not necessary parties to the present suit and that they are entitled for their share only through defendant No. 2 and along with defendant No 1. Sri N. Venkatesh, learned Counsel for the petitioner submits that the trial Court has even refused to issue notice to the proposed defendants and that they have been denied their right of hearing. Hence, the order may be set aside.

(2.) SRI D.R. Rajashekharappa, Learned Counsel for the Respondents No. 1 and 2 supports the order of the trial Court on the ground that only when defendant No. 1 is held to be entitled to the share, proposed defendants No. 4 and 5 would get a right and till then they have no right to participate in the proceedings; they have no independent share in the property except through defendant No. 1. Hence, the trial Court is right in refusing to issue notice to the proposed defendants No. 4 and 5.

(3.) IN that view of the matter, the order passed by the trial Judge is erroneous and the same deserves to be set aside. Accordingly, the petition is allowed. The trial Court is directed to summon the proposed defendants No. 4 and 5 and dispose of their application afresh after hearing them. Since the suit pertains to the year 2004, the hearing of the proposed defendants No. 4 and 5 shall be completed within a period of two months from the date of receipt of this order. The parties are at liberty to advance the case on 18.11.2013 and after producing the certified copy of this order, request the Court to proceed with the matter in accordance with law and in the light of the observations made in this order.