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2024 Supreme(Online)(KAR) 36972
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2024 BEFORE THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 7409 OF 2023 (GM-CPC)
BETWEEN:
1. SRI. H.N. MAHAVEERA AGED ABOUT 57 YEARS, S/O. NEMIRAJAIAH AND KANAKARATHNA
2. PANKAJA AGED ABOUT 55 YEARS, D/O NEMIRAJAIAH AND KANAKARATHNA
3. PRAPULLA AGED ABOUT 53 YEARS, W/O. BRAHMAPRASAD, D/O. NEMIRAJAIAH AND KANAKARATHNA
4. PRATHIBA AGED ABOUT 50 YEARS, D/O NEMIRAJAIAH AND KANAKARATHNA THE PETITIONERS NO.1 TO 4 ARE Digitally signed R/AT NO.2016, 15TH MAIN, 3RD CROSS, by MARKONAHALLI VIJAYANAGARA 2ND STAGE, RAMU PRIY A MYSURU-570017.
Location: HIGH COURT OF KARNATAKA 5. JWALAMALA AGED ABOUT 63 YEARS, D/O. LATE NEMIRAJAIAH R/AT 'MAHAVEERA NILAYA', 4TH MAIN, VINAYAKANAGAR, TUMAKURU TOWN-572120.
6. PARSHWANATHA AGED ABOUT 47 YEARS, S/O LATE MADHURA AND LATE AJITHKUMAR
7. SMT. POORNIMA AGED ABOUT 44 YEARS, W/O SURESHBABU
8. SMT. PREMA AGED ABOUT 41 YEARS, W/O JINESH, D/O LATE MADHURA AND LATE AJITHKUMAR THE PETITIONER NO.6 TO 8 ARE R/AT PADMAMBA TRADERS, NO.22, EAST CROSS, ASHOKA ROAD, TUMAKURU-572101.
…PETITIONERS (BY SRI. RAMESH K.R., ADVOCATE)
AND:
1. SRI. M.N. NAGARAJU AGED ABOUT 61 YEARS, S/O LATE M.C. NEMIRAJAIAH, R/AT 'MAHAVEERA NILAYA', 4TH MAIN, VINAYAKANAGAR, TUMAKURU TOWN-572120.
2. SMT. PADMINI AGED ABOUT 66 YEARS, W/O NAGENDRAIAH, D/O LATE M.C. NEMIRAJAIAH R/AT NO.65/2, 4TH MAIN, 9TH CROSS ROAD, CAUVERY PURAM, BEHIND RAMA MANDIRA TEMPLE ROAD, KAMAKSHIPALYA, BENGALURU-560079.
3. SMT. NALINI KUMAR AGED ABOUT 59 YEARS, W/O INDRAKUMAR, D/O LATE M.C. NEMIRAJAIAH, R/AT NO.342, 3RD MAIN, 5TH CROSS, GOKUL EXTENSION, TUMAKURU TOWN, TUMAKURU-572102.
4. SRI. M.N. YUVARAJAIAH AGED ABOUT 55 YEARS, S/O SUNANDAMMA, R/AT SANDEEPANI SCHOOL, ARVINDA NAGARA, VINOBANAGARA, SHIVAMOGGA-577204.
…RESPONDENTS (BY SRI. L.P. SURESH, ADVOCATE FOR RESPONDENT NOS.2 AND 3;
SRI. S. LAKSHMINARAYANA, ADVOCATE FOR RESPONDENT NO.4;
NOTICE SERVED ON RESPONDENT NO.1)
THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 10.01.2023 PASSED BY THE III ADDL. SENIOR CIVIL JUDGE AND JMFC, TUMAKURU ON IA NO.1 IN OS NO.42/2020 AT ANNEXURE-F AND THEREBY ALLOW THE APPLICATION FILED BY THE PETITIONERS IN IA NO.1 UNDER ORDER 94e READ WITH SECTION
151 OF CPC AT ANNEXURE-D AND ETC., THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R. NATARAJ
ORAL ORDER
The plaintiffs in O.S.No.42/2020 pending consideration before the III Additional Senior Civil Judge and JMFC Tumakuru, have filed this petition challenging an order dated 10.01.2023 by which, I.A.No.I filed by them under Section 94(e) read with Section 151 of Civil Procedure Code to restrain the defendants from enforcing the preliminary decree passed in O.S.No.150/2014 passed by the II Additional Senior Civil Judge, Tumakuru was rejected.
2. The facts in a nutshell are that the defendant No.4/M.N.Yuvarajaiah in O.S.No.42/2020 had filed O.S.No.150/2014 against the defendant No.1/M.N.Nagarajaiah for partition and separate possession of his share in the suit properties.
3. It is the claim of the plaintiffs in O.S.No.42/2020 that they were not arrayed as parties in O.S.No.150/2014 though they too had an undivided share in the suit properties. The suit in O.S.No.150/2014 was decreed in terms of the judgment and decree dated 15.02.2018 by which, it was declared that the defendant No.4 was entitled to ½ share in the suit properties. Hence, the plaintiffs in O.S.No.42/2020 were advised to file a separate suit claiming their share in the suit properties and hence, O.S. No.42/2020 was filed. In the said suit, the plaintiffs filed an application under Section 94(e) read with Section 151 of Civil Procedure Code to restrain defendant Nos.1 and 4 from taking out proceedings to draw the final decree in respect of decree passed in O.S.No.150/2014. The said application was contested by the defendants which resulted in Trial Court rejecting the application in terms of the impugned order on the ground that if the plaintiffs have any undivided right in the suit properties, nothing prevented them from getting themselves impleaded in the final decree proceedings and seek for adjudication of their right in the suit properties. It therefore held that the plaintiffs without exhausting the said remedy cannot maintain a separate suit.
Consequently, it rejected the application.
4. Being aggrieved by the said order, the plaintiffs are before this Court.
5. Learned counsel for the plaintiffs contended that the defendant No.4 had already filed FDP No.27/2018 to obtain a final decree in respect of the preliminary decree passed in O.S.No.150/2014. He contends that the issue whether the defendant No.1 is entitled to any share in the suit properties cannot be adjudicated in final decree and therefore, it is proper that a thorough adjudication be made in respect of the rights of the plaintiffs in O.S.No.42/2020. He therefore, prays that final decree proceedings initiated in FDP No27/2018 be stayed until the disposal of O.S.No.150/2014.
6. Per contra, the learned counsel for the defendant No.4 submits that the plaintiffs can as well get themselves impleaded in final decree proceedings and seek for adjudication of their share. He submits that filing another suit would only result in multiplicity of proceedings. He therefore, contends that the impugned order passed by the Trial Court be confirmed by reserving liberty to the plaintiffs to work out their remedy in the final decree proceedings.
7. I have considered the submissions of the learned counsel for the plaintiffs as well as the learned counsel for the defendant No.4.
8. It is no doubt true that the plaintiffs, who claim to be the members of the joint family are entitled to claim a share in the properties. They are also entitled to participate in final decree proceedings and seek for adjudication of their share in the suit properties. That is the reason why, it is very often stated that the final decree proceedings is a continuation of preliminary decree and Court which passes the final decree is also entitled to modify the preliminary decree.
9. Ideally, the plaintiffs must have sought adjudication of their title in final decree proceedings. However, one of the contentions urged by the plaintiffs in the suit is that the defendant No.4 is not a member of the joint family. This contention was decided in O.
