IN THE COURT OF PRINCIPAL CIVIL JUDGE (JD)

AT TUMKUR OS 255/2008

PLAINTIFF K.L. UGREGOWDA

VS

DEFENDANT SHOBHA NAGARAJ & ORS

OBJECTIONS TO IMPLEADING APPLICATION:1. The IA is not maintainable either on law or on facts.

2. Plaintiff is a diligent party of the suit and has to disclose true and clear set of facts without ambiguity in affidavit, in order to maintain his version of the case in accurate line. The plaintiff/applicant have filed incomplete, ambigious, unclarified version of facts which in itself is not maintainable in the interest of justice.

3. The plaintiff has not disclosed in IA affidavit which grama/hobli/taluk/district the alleged property is situated and for which property he wants to implead this proposed defendant as a party. There is no mention of who is whom in the suit, how is the impleading defendant is necessary in the suit. There is no mention of facts with dates constituting the cause and allegations leading to impleading the proposed defendant. The affidavit is very vague with no clear set of facts in chronological order. The affidavit does not contain clear facts. 4. It is opt to quote here a case law proclaimed before

Karnataka High Court in V.R. Kamath vs Divisional Controller AIR 1997 Kant 275, ILR 1997 KAR 1856 by

Justice R.V. Raveendran

It is unfortunate that the

importance of affidavits and the seriousness attached to due and proper execution thereof is constantly ignored or missed by the persons concerned. An affidavit is not a mere typed format, to be signed and attested as an empty formality. An affidavit is a solemn and voluntary declaration or statement of facts in writing, relating to matters in question or at issue, and sworn or affirmed and signed by the deponent before a person or officer duly authorised to administer such oath or affirmation. An affidavit constitutes evidence, where so provided or agreed. Ordinarily evidence has to be recorded viva voce and matters should be decided on such oral evidence. But in several types of cases, in particular summary proceedings, facts are permitted to be proved by affidavits; and affidavits are treated as a substitute for oral evidence. The Courts are required to determine disputes or causes and make orders or give judgments, acting on such affidavits. In the absence of due 'affirmation' or 'swearing', an affidavit has no value and in fact is not valid.

5. The plaintiff neither supplied plaint copy to ascertain about the nature of allegations against this proposed defendant, it is no where clear that , when the 13th defendant was being made party, on what date plaintiff came to know of the alleged sale.

6. Mere filing of suit for specific performance does not entitle plaintiff to keep silent about the property, he should be deligent in entering dispute pending facts in RTC and make public the alleged dispute. The specific performance suit is a

discretionary suit and under present circumstances, plaintiff can only seek damages from his contract counterpart and cannot enforce that contract indefinitely by having his own laches.

7. The plaintiff s own laches and not having due diligence in prosecuting the case is itself clear from IA affidavit averments.

8. Under Rule 42 of The Karnataka Land revenue rules, a person shall give notice and information to concerned taluk office to get entered the pending civil claims in civil court, since as per IA affidavit averments the applicant has not stated whether he has taken such precaution in alleged property or not. Hence the due deligency of plaintiff is not there and its shows some collusion of plaintiff and several other defendants to use and abuse process of court for their illegal acts and omissions. 9. No where in affidavit it is clearly stated the facts leading to filing of the case and the facts intervened in the middle inspite of due deligency on the part of plaintiff. The party cannot be allowed to continue his legal laches indefinitely without their being a valid reason for condoning it. The IA is silent over the matter and hence IA is liable to be dismissed.

10.

Different situations may arise in different cases in the

matter of grant of interim relief as was noticed by Supreme Court in Deoraj vs. State of Maharashtra and Others [(2004) 4 SCC 697] stating : "12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases

where withholding of an interim relief would tantamount to dismissal of the main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling

circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent."

11.

Further, it is relevant to mention the law laid down by

Karnataka High Court in the case of H.K. Rajanna v. H.B. Chikkaboraiah reported in 2002 (3) KCCR 1809, wherein it is held as follows- "that the purposes of impleading a party in a suit is to decide a case once for all against the parties interested it is not shown whether the impleading applicant is a necessary and proper party also in the suit. Such as

order is really perversed and is not sustainable in law. Though the order is not reversable as held by the Division Bench of this Court, it is an illegal order which can not be allowed to stand. This Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India has made this order."

12.

The court has to decide on the facts sworned in the

affidavit. The facts sworned is incomplete and there is no request to read out plaint averments with affidavit. As such the court cannot take averments of plaint without giving opportunity to proposed defendant by serving plaint or full facts of the case. It is opt to quote here a case law proclaimed before Karnataka High Court in Sri Vardhaman Stanakvisi Jain Sravak Sangh vs Chandrakumar And Anr reported in ILR 1984 KAR 889 it is observed as follows. A bare reading of this provision shows that the Court has power to direct a person to be made a party to a suit if such person ought to have been made a party or that the Court feels the necessity of impleading him with a view to adjudicate upon and settle all the questions involved in the suit effectually and completely. The questions involved in the suit would mean the question concerning the parties to the suit and not with the questions concerning any third party. A party may be a 'necessary' or 'proper' party to a suit. If a party is a 'necessary' party, such a person must be added as a party to the litigation. If such a party is a 'proper' party, then the Court may considered whether his presence is necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. Order I Rule 9 C.P.C. provides that by reason of mis

joinder or non joinder of the parties, the Court will not dismiss the suit. The Court may deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. However, it has been further provided that Rule 9 of Order I of the Code would not apply where a necessary party is not joined to the suit. In other words it means that if a necessary party is not before the Court, then the suit may be dismissed. So in dealing with an application under Order I Rule 10 (2), the Court has to determine whether the party proposed to be added as a party to a suit is one who ought to have been joined as a party. In other words, the Court has to determine whether such a person is a necessary party without whose presence no relief could be granted to the plaintiff or the defendant. In the alternative, the Court has to determine whether the presence of any such person is necessary to decide the disputes between the parties to the suit. In case such a party is only a proper party, then that party can be added if the Court holds that to decide the disputes between the parties effectually and completely, his presence is necessary. The Court has to exercise its discretion while impleading a party in the light of the above provisions.

WHEREFORE, in the above circumstantial legal aspects of the case, it is most respectfully prayed, that, this Hon ble Court may be pleased to dismiss the IA filed by the Plaintiffs against this proposed Defendant-14 along with exemplary costs in the

interest of justice and equity.

Date:- 20-04-2011 Place:- Tumkur Proposed Defendant-14

Advocate for proposed defendant-14

V E R I F I C A T I O N.

I, G.C. LATHA , the

Proposed defendant-14

hereby

declares that, what is stated in the above objections paras at 1 to 12 of the objections are true and correct to the best of my knowledge, advice, information and belief.

PLACE : TUMKUR DATED: 20-04-2011

Proposed Defendant-14