- 1 - HC-KAR NC: 2025:KHC:47905 WP No. 24954 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 24954 OF 2022 (GM-CPC) BETWEEN: SYED PASHA S/O SYED BASHA AGED 53 YEARS, R/O DODUBAI PALYA CHAKENAHALLI MAJARE KADABA HOBLI, GUBBI TALUK TUMAKURU DISTRICT - 572 219. …PETITIONER (BY SRI. M.B. CHANDRACHOODA, ADVOCATE) AND: 1. MOHAMMED SANA ULLA S/O LATE MUSTAFA AGED 39 YEARS, 2. MOHAMMED GHOUSE S/O LATE MUSTAFA AGED 35 YEARS, 3. MOHAMMED IRFAN S/O LATE MASTAFA AGED 44 YEARS, ALL ARE RESIDENTS OF CHAKENAHALLI MAJARE Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:47905 WP No. 24954 of 2022 DADU BAI PALYA, KADABA HOBLI GUBBI TALUK, TUMAKURU DISTRICT - 572 219. …RESPONDENTS (BY SRI. G.R. LAKSHMIPATHY REDDY, ADVOCATE FOR R1; R2 AND R3 SERVED AND UNREPRESENTED) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD 26.09.2022 PASSED ON IA NO.1 FILED BY THE PETITIONER U/O 1 RULE 10(2) R/W SEC.151 OF CPC IN OS NO.27/2020 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, GUBBI VIDE ANNX-H AND ETC., THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY ORAL ORDER Petitioner is before this Court in this writ petition filed under Article 227 of the Constitution of India with a prayer to set aside the order dated 26.09.2022 passed on I.A No.1 in O.S No.27/2020 by the Court of Senior Civil Judge and JMFC, Gubbi. 2. Heard the learned counsel for the parties, para 3 Petitioner herein has filed O.S No.27/2020 before the - 3 - HC-KAR NC: 2025:KHC:47905 WP No. 24954 of 2022 Jurisdictional Civil Court at Gubbi taluk seeking the relief of declaration of title and possession of the suit schedule property. In the said suit, I.A No.1 was filed under Order 1 rule 10 of CPC with a prayer to implead respondent No.3 herein as party defendant to the suit. The said application was opposed by the proposed defendant by filing objections. The Trial Court vide the order impugned has rejected I.A No.1 and being aggrieved by the same, the plaintiff is before this Court. 3. Learned counsel for the petitioner submits that petitioner had earlier filed a suit for permanent injunction against Mustafa in O.S No.275/2008 and in the said suit a decree of permanent injunction was passed, subsequently the present suit is filed against Mustafa and his two sons. He submits that Mustafa has died on 28.11.2014 which is prior to filing of O.S No.27/2020. Inadvertently, he has been made arrayed as defendant No.1 in the suit instead of arraying his 3rd son, who is the proposed defendant as party defendant to the suit. 4. Per contra learned counsel for the respondent No.1/defendant No.2 has opposed the petition. He submits that - 4 - HC-KAR NC: 2025:KHC:47905 WP No. 24954 of 2022 suit is filed against a dead person which is not at all maintainable. The Trial Court has therefore rightly dismissed the application. Accordingly, prays to dismiss the petition. 5. Perusal of the material on record would go to show that suit in O.S No.27/2020 is filed by the petitioner herein against Mustafa and his two sons who are respondent Nos.1 and 2 in this writ petition. It appears that Mustafa has died on 28.11.2014. As against the decree passed in O.S No.275/2008, Mustafa who was a defendant in the said suit, had filed RSA No.807/2017 before this Court and the cause title of RSA No.807/2017 which was disposed of on 10.01.2019 would go to show that Mustafa had died as on the date of disposal of RSA and his three sons were on record as his legal representatives in the said appeal. Out of his three sons, only two sons are arrayed as defendants and according to the learned counsel for the petitioner by mistake, Mustafa has been arrayed as defendant No.1 instead of arraying his third son who is the proposed respondent as defendant No.1 in the suit. 6. The Trial Court without appreciating this aspect of the matter has dismissed the application on the ground that it is - 5 - HC-KAR NC: 2025:KHC:47905 WP No. 24954 of 2022 doubtful whether the suit itself is maintainable or not. Suit is filed against Mustafa and his two sons and merely for the reason that Mustafa had died even prior to filing of O.S No.27/2020, since the other two defendants who are his legal representatives are already on record, it cannot be said that suit itself was not maintainable. Under the circumstances, the Trial Court was not justified in dismissing I.A No.1 filed under Order 1 Rule 10 of CPC. Accordingly, I pass the following:- ORDER i. Writ Petition is allowed. ii. The order dated 26.09.2022 passed on I.A No.1 in O.S No.27/2020 on the file of Senior Civil Judge and JMFC, Gubbi is set aside and prayer made in I.A No.1 is granted. Sd/- (S VISHWAJITH SHETTY) JUDGE VS List No.: 1 Sl No.: 10