Smt. Deviramma, N. Nagaraju Gowda and Puttananjaiah Gowda vs Shivananjaiah and Shivakumar

Hon''ble Mrs. Justice B.V. Nagarathna

This writ: petition is filed against the order dated 22.8.2011, passed in O.S. No. 78/2004, on the file of Addl. Senior Civil Judge and CJM, Tumkur on an application filed under Order I Rule 10 of CPC. The petitioners who are the plaintiffs had filed the application under Order I Rule 10 of CPC

"The relevant facts of the case are that the husband of the 1st petitioner and the father of the 2nd and 3rd petitioners have filed a suit in O.S. No. 78/2004 seeking a relief of specific performance of agreement dated 19.4.2004. It is the case of the petitioners that the plaintiff has been missing since the year 2009

Apprehending that the suit would be dismissed on account of the absence of the plaintiff, petitioners filed an application under Order I Rule 10 of CPC to come on record as plaintiffs 2 to 4. The said application has been dismissed by the Trial Court The same is impugned in this writ petition.

I have heard the Learned Counsel for the petitioners.

It is submitted by the Learned Counsel for the petitioners that whereabouts of the plaintiff is not known since the year 2005 and presuming that the proceedings in O.S.No. 78/2004 would be closed which would prejudicially affect the petitioners, they filed an application under order I Rule 10 of CPC to come on record and continue prosecution of the case. Despite several attempts being been made to trace the plaintiff, the petitioners have been unsuccessful in tracing the plaintiff. In the circumstances, the Trial Court ought to have allowed the application particularly, having regard to the provisions of Order I Rule 10 (2) of the CPC. He submits that the reference made to Section 108 of the Evidence Act by the Trial Court is not correct Therefore, the said order requires intervention of this Court in this writ petition.

Having heard the Learned Counsel for the petitioners and on perusal of the materiel on record particularly, the plaint in O.S. No. 78/2004, a copy of which is produced at Annexure-A, it is noted that the plaintiff has filed the said suit for specific performance of agreement dated 19.4.2004. It is not the case of the petitioners that they are parties to the said agreement It is only the plaintiff in the said suit, who is the agreement holder seeking specific performance against the defendants, The petitioners herein have no cause of action as against the defendants, since they are not agreement holders along with the plaintiff. If the plaintiff is missing end not traceable, then in that case the application filed to implead the petitioners would not lie, since the petitioners have no cause of action against the defendants. Merely because the petitioners are family members of the plaintiff, that would not give a cause of action to the petitioners. It is only when plaintiff dies or a declaration is obtained by the petitioners that the plaintiff is not heard for a period seven years, in that case, the petitioners could coma on record to prosecute the said suit The Trial Court was therefore justified in dismissing the application of the petitioners. The said order would not call for any interference in this writ petition.

Accordingly, this writ petition is rejected.