- 1 - NC: 2025:KHC-D:2430 WP No. 104435 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 7TH DAY OF FEBRUARY 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT PETITION NO. 104435 OF 2018 (GM-CPC) BETWEEN: 1. SHRI. BASEERSAB S/O DASTAGIRSAB TAMBOLI @ TERDAL AGE: 52 YEARS, OCC: CYCLE BUSINESS, R/O: PENDAR GALLI, VIJAYAPUR ROAD, ATHANI-591304, DIST: BELAGAVI. …PETITIONER (BY SRI. H.R. DESHPANDE, ADV) AND: MEERASAB HASANSAB GADDEKAR SINCE DECEASED BY IS LRS, 1. SMT. IMAMBU W/O MEERASAB GADDEKAR, AGE: 66 YEARS, OCC: HOUSEHOLD, R/O: JOPAD PATTI, NEHRU NAGAR, ICHALAKARANJI-416115, TQ: HATHKANAGALA, DIST. KOLHAPUR, MAHARASHTRA STATE. 2. SHRI. ADAM S/O MEERASAB GADDEKAR AGE: 44 YEARS, OCC: TRADE, R/O: JOPAD PATTI, NEHRU NAGAR, ICHALAKARANJI-416115, TQ: HATHKANAGALA, DIST. KOLHAPUR, MAHARASHTRA STATE. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.02.21 12:40:21 +0530 - 2 - NC: 2025:KHC-D:2430 WP No. 104435 of 2018 3. SMT.FARIDA W/O JAHANGIR MAKANDAR AGE: 40 YEARS, OCC: HOUSEHOLD, R/O: ANANTAPUR-591212, TQ: ATHANI, DIST: BELAGAVI. 4. SMT.SHABANA W/O ALTAF MUJAWAR AGE: 36 YEARS, OCC: HOUSEHOLD, R/O: KUDACHI-591311, TQ: RAIBAG, DIST: BELAGAVI. 5. SMT.RIJWANA W/O ASLAM MAKANDAR AGE: 29 YEARS, OCC: HOUSEHOLD, R/O: CHAMAKERI MADDI, ATHANI-591304, DIST: BELAGAVI. 6. KUMARI HEENA D/O MEERASAB GADDEKAR AGE: 24 YEARS, OCC: HOUSEHOLD, R/O: JOPAD PATTI, NEHRU NAGAR, ICHALAKARANJI-416115, TQ: HATHKANAGALA, DIST: KOLHAPUR, MAHARASHTRA STATE. 7. SMT. MASABI W/O MUNEER GADDEKAR AGE: 32 YEARS, OCC: HOUSEHOLD, R/O: JOPAD PATTI, NEHRU NAGAR, ICHALAKARANJI-416115, TQ: HATHKANAGALA, DIST: KOLHAPUR, MAHARASHTRA STATE. NOW AT SAPTASAGAR-591304, TQ. ATHANI, DIST: BELAGAVI. 8. KUMARI BISMILLA D/O MUNEER GADDEKAR AGE: 14 YEARS, OCC: STUDENT, R/O: JOPAD PATTI, NEHRU NAGAR, ICHALAKARANJI-416115, - 3 - NC: 2025:KHC-D:2430 WP No. 104435 of 2018 TQ: HATHKANAGALA, DIST: KOLHAPUR, MAHARASHTRA STATE. NOW AT SAPTASAGAR-591304, TQ: ATHANI, DIST: BELAGAVI. 9. KUMAR YASEEN S/O MUNEER GADDEKAR AGE: 11 YEARS, OCC: STUDENT, R/O: JOPAD PATTI, NEHRU NAGAR, ICHALAKARANJI-416115, TQ: HATHKANAGALA, DIST: KOLHAPUR, MAHARASHTRA STATE, NOW AT SAPTASAGAR-591304, TQ: ATHANI, DIST: BELAGAVI. RESPONDENTS 8 & 9 BEING MINOR REPRESENTED BY THEIR GUARDIAN NATURAL MOTHER-GUARDIAN SMT. MASABI W/O MUNEER GADDEKAR, AGE: 32 YEARS, OCC: HOUSEHOLD, R/O: JOPAD PATTI, NEHRU NAGAR, ICHALAKARANJI-416115, TQ: HATHKANAGALA, DIST: KOLHAPUR, MAHARASHTRA STATE, NOW AT SAPTASAGAR-591304, TQ: ATHANI, DIST: BELAGAVI. 10. SMT.BANU W/O IMAMSAB GADDEKAR AGE: 55 YEARS, OCC: HOUSEHOLD, R/O: JOPAD PATTI, NEHRU NAGAR, ICHALAKARANJI-416115, TQ: HATHKANAGALA, DIST: KOLHAPUR, MAHARASHTRA STATE. NOW AT SAPTASAGAR-591304, TQ: ATHANI, DIST: BELAGAVI. 11. SHRI. BANDENAWAZ S/O HASANSAB GADDEKAR AGE: 66 YEARS, OCC: BUSINESS, - 4 - NC: 2025:KHC-D:2430 WP No. 104435 of 2018 R/O: JOPAD PATTI, NEHRU NAGAR, ICHALAKARANJI-416115, TQ: HATHKANAGALA, DIST: KOLHAPUR, MAHARASHTRA STATE. NOW AT SAPTASAGAR-591304, TQ: ATHANI, DIST: BELAGAVI. 12. SMT. ASHAMBI W/O BASHA HUZARE AGE: 58 YEARS, OCC: HOUSEHOLD, R/O: JOPAD PATTI, NEHRU NAGAR, ICHALAKARANJI-416115, TQ: HATHKANAGALA, DIST: KOLHAPUR, MAHARASHTRA STATE. NOW AT SAPTASAGAR-591304, TQ: ATHANI, DIST: BELAGAVI. 13. ZAMEER S/O NOORMOHAMMAD NIWADE AGE: 42 YEARS, OCC: AGRICULTURE, R/O: NEAR WATER TANK, MALAGAON-416410, TQ: MIRAJ, DIST: SANGLI, MAHARASHTRA STATE. …RESPONDENTS (BY SRI. SANGAMESH S GHULAPPANAVAR, ADV FOR R1 TO R9 & R11 TO R13. R10 SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLEs 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 20.06.2018 PASSED BY THE PRL. CIVIL JUDGE AND JMFC, ATHANI ON I.A.NO.6 IN O.S.NO.782/2008 PRODUCED AT ANNEXURE-“H” AND ETC. THIS PETITION, COMING ON FOR PRL. HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING ORDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI - 5 - NC: 2025:KHC-D:2430 WP No. 104435 of 2018 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This writ petition is filed challenging the order dated 20.06.2018 passed on I.A.No.VI in O.S. No.782/2008 by the learned Principal Civil Judge and JMFC, Athani. 2. Brief facts leading rise to the filing of this writ petition are as follows: It is the case of the proposed legal representatives of the deceased plaintiff No.1/respondents herein that the proposed legal representatives of deceased plaintiff No.1 filed an application under Order I Rule 10 of CPC for impleading them as the legal representatives of deceased plaintiff No.1 in a suit for declaration and consequential relief of permanent injunction filed by the plaintiffs therein. The said application was opposed by the petitioner/defendant No.3 contending that the application filed by the proposed legal representatives of plaintiff No.1 is not maintainable, as the proposed legal representatives of deceased plaintiff No.1 have to file an application under - 6 - NC: 2025:KHC-D:2430 WP No. 104435 of 2018 Order XXII Rule 3, Order XXII Rule 9 of CPC and under Section 5 of the Limitation Act. Though the petitioner has objected the maintainability of the application, the trial Court without considering the objection raised by the petitioner, has passed the impugned order. Hence, this writ petition. 3. Heard the learned counsel for the petitioner and the learned counsel for the respondents. 4. Learned counsel for the petitioner submits that, plaintiff No.1 died and the proposed legal representatives of deceased plaintiff No.1 intended to come on record by filing an application for impleading them as legal representatives of deceased plaintiff No.1. He submits that there is a delay in filing the application to come on record and that the proposed legal representatives of deceased plaintiff No.1 did not file an application for setting aside abatement and for condonation of delay Hence, on these grounds, he prays to allow the writ petition. - 7 - NC: 2025:KHC-D:2430 WP No. 104435 of 2018 5. Per contra, learned counsel for the respondents submits that due to inadvertence, they have filed an application for impleading the proposed legal representatives under Order 1 Rule 10 instead of filing applications under Order XXII Rule 3 to come on record, under Order XXII Rule 9 to set aside the abatement and Section 5 of the Limitation Act for condonation of delay in filing the L.R. application. He submits that the respondents may be permitted to withdraw I.A. No.VI with liberty to file necessary applications for which the petitioner does not dispute. 6. Perused the records and considered the submissions of the learned counsel for the parties. 7. Plaintiff No.1 died during the pendency of the suit. His legal representatives filed an application to come on record under Order I Rule 10 of CPC. The proposed legal representatives of deceased plaintiff No.1 instead of filing an application under Order XXII Rule 3 to come on record and Order XXII Rule 9 to set aside abatement and - 8 - NC: 2025:KHC-D:2430 WP No. 104435 of 2018 Section 5 of the Limitation Act, to condone the delay, they have filed an application for impleading them as the legal representatives of deceased plaintiff No.1. The application for impleading filed by the proposed legal representatives of deceased plaintiff No.1 is not maintainable. However, the proposed legal representatives of deceased plaintiff No.1 are withdrawing the said application with the liberty to file necessary applications. 8. In view of the same, the writ petition is disposed of reserving liberty to the proposed legal representatives of deceased plaintiff No.1 to file necessary applications. If such necessary applications are filed, the trial Court is directed to dispose of those applications within a period of one month from the date of receipt of a copy of this order. Sd/- (ASHOK S. KINAGI) JUDGE kmv CT: BSB