- 1 - HC-KAR NC: 2025:KHC:40141 WP No. 26960 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 26960 OF 2024 (GM-CPC) BETWEEN: BUDEN SABI S/O LATE KHASIM SAB & FATHIMA SAB AGED ABOUT 60 YEARS AGRICULTURIST, RESIDING AT SULTANIPURA AND LINGADAHALLI TURUVUNURU HOBLI, CHITRADURGA TALUK DISTRICT - 577 501. …PETITIONER (BY SRI JAGAN MOHAN M.T, ADV.) AND: R. NAJIMUDDIN @ NAJAMUDDIN S/O LATE K. RAZAK SABI AGED ABOUT 32 YEARS RESIDING AT 2ND CROSS INDIRA NAGARA, MATADAKURUBARAHATTI CHITRADURGA CITY - 577 501. …RESPONDENT THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TOSETTING ASIDE THE IMPUGNED ORDER DATED 26/06/2024 PASSED BY THE 2ND ADDL. SENIOR CIVIL JUDGE AND JMFC AT CHITRADURGA, IN OS NO. 18/2022 BY ALLOWING THE IA NO. 1 FILED BY THE PETITIONER UNDER ORDER 22 RULE 3 OF CPC VIDE ANNEXURE-F. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:40141 WP No. 26960 of 2024 ORAL ORDER 1. Petitioner is before this Court in this petition filed under Article 227 of the Constitution of India, with a prayer to set aside the order dated 26.06.2024 passed by the Court of II Addl. Senior Civil Judge & JMFC, Chitradurga, in O.S.No.18/2022 on IA No.1 filed by the respondent under Order XXII Rule 3 of CPC. 2. Heard the learned Counsel for the petitioner. 3. One Sri Razak Sab had filed O.S.No.18/2022 against the petitioner herein seeking the relief of partition and separate possession of the suit schedule property. Plaintiff and defendant in the said suit are direct brothers. During the pendency of the suit, original plaintiff Razak Sab died and respondent herein had thereafter filed an application under Order XXII Rule 3 of CPC with the prayer to permit him to come on record as the legal representative of deceased plaintiff and prosecute the suit. The said application was opposed by the petitioner herein by filing objections. The Trial Court, thereafter held an inquiry as provided under Order XXII Rule 5 of CPC and vide the order impugned, allowed IA No.1 filed in O.S.No.18/2022 and - 3 - HC-KAR NC: 2025:KHC:40141 WP No. 26960 of 2024 permitted the respondent to come on record as the legal representative of the original plaintiff Razak Sab and prosecute the suit. Being aggrieved by the same, defendant is before this Court. 4. Learned Counsel for the petitioner having reiterated the grounds urged in the petition, submits that all the documents produced by the respondent are concocted documents. The mother of the respondent Smt. Shahazan had lived with the original plaintiff only for a period of one month as his wife, and she had subsequently married Fakkruddin and lived with him. The respondent is not born to the original plaintiff. The Trial Court has failed to appreciate this aspect of the matter and has erred in allowing the application. 5. The relationship between the original plaintiff and the defendant is not in dispute. Plaintiff had died during the pendency of the suit and the respondent herein had filed application under Order XXII Rule 3 of CPC claiming to be the son of the original plaintiff and prayed to permit him to come on record as the legal representative of deceased plaintiff and prosecute the suit. Since the defendant/petitioner had opposed - 4 - HC-KAR NC: 2025:KHC:40141 WP No. 26960 of 2024 the said application on the ground that respondent was not the son of the original plaintiff, the Trial Court had held an inquiry on the application filed by the respondent as provided under Order XXII Rule 5 of CPC and during the course of inquiry, the respondent had examined himself as PW-1 and also had produced five documents as Exs.P1 to P5. 6. Ex.P1 is the ration card which was issued in the year 1995. In the said document, name of the plaintiff and also the name of his wife Smt. Shahazan is found. The name of the respondent is also found in the said document and it is stated that he was aged about five years in the year 1995. The School Transfer Certificate of the respondent was produced as Ex.P2 and in the said document, the date of birth of the respondent is mentioned as 27.02.1990 and his father's name is mentioned as K.Razak Sab. Ex.P3 is the family genealogy tree and the name of the parents of the respondent is mentioned in the same as Razak Sab and Shahazan. In addition to the same, the respondent had also produced his income and caste certificate as Ex.P4 and the death certificate of the plaintiff Razak Sab as Ex.P5. - 5 - HC-KAR NC: 2025:KHC:40141 WP No. 26960 of 2024 7. On the other hand, the defendant had examined himself as DW1 and another witness as DW2. Except their oral evidence, no documentary evidence was produced to show that plaintiff had divorced Shahazan at any point of time. The defendant had produced the death certificate of Shahazan in which it is mentioned that her husband's name is Fakkruddin. But the said document is not sufficient to prove that respondent was not born to Shahazan from her wedlock with Razak Sab. It is under the circumstances, the Trial Court has allowed IA No.1 filed by the respondent and permitted him to come on record as the legal representative of deceased plaintiff Razak Sab and prosecute the suit. I do not find any illegality or irregularity in the said order. Accordingly, writ petition is dismissed. Sd/- (S VISHWAJITH SHETTY) JUDGE KK