SRI RAJAPPA vs SRI SREEDHARA K M
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC:61144
WP No. 24314 of 2026
CNR: KAHC010536622026
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 27 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE K. V. ARAVIND
WRIT PETITION NO. 24314 OF 2026 (GM-CPC)
BETWEEN:
1. SRI RAJAPPA
SON OF LATE MUNIVENKATAPPA
@ MUNIVENKATAIAH,
AGED ABOUT 52 YEARS,
RESIDING AT 4, 4TH CROSS,
1ST MAIN, BYATARAYANPURA,
BENGALURU 560026.
…PETITIONER
(BY SRI PUNITH C., ADVOCATE)
AND:
1. SRI SREEDHARA K. M.,
SON OF LATE MUNIVENKATAPPA
@ MUNIVENKATAIAH,
AGED ABOUT 56 YEARS,
RESIDING AT 4, 4TH CROSS,
1ST MAIN, BYATARAYANPURA,
BENGALURU 560026
2. SRI. PRAKASHA,
SON OF LATE MUNIVENKATAPPA @
MUNIVENKATAIAH,
AGED ABOUT 60 YEARS,
RESIDING AT 4, 4TH CROSS,
Digitally signed
by VINUTHA B S
Location: High
Court of
Karnataka
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HC-KAR
NC: 2026:KHC:61144
WP No. 24314 of 2026
CNR: KAHC010536622026
1ST MAIN, BYATARAYANPURA,
BENGALURU 560026.
3. SRI.SOMAIAH,
SON OF LATE MUNIVENKATAPPA @
MUNIVENKATAIAH,
AGED ABOUT 58 YEARS,
RESIDING AT M.A.COLONY,
MARKONAHALLI,
CHANDANAHALLI,
AGRICULTURE DEPARTMENT COLONY,
AMRUTHUR HOBLI,
KUNIGAL TALUK,
TUMAKURU DISTRICT - 572130
…RESPONDENTS
(BY SRI B.S. NATARAJA, ADVOCATE FOR R3;
VIDE ORDER DATED 06.08.2026 NOTICE TO
R1 & R2 IS DISPENSED WITH)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SETTING ASIDE THE
IMPUGNED ORDER DATED 10.03.2026 AS PER ANNEXURE-G
PASSED IN O.S.NO.42/2023 BY THE LEARNED ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, KUNIGAL ON I.A.NO.11 FILED
UNDER ORDER 1 RULE 10(6) CPC AS PER ANNEXURE- E FILED
BY THE PETITIONER AND THEREBY ORDER TO ALLOW THE
APPLICATION.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE K. V. ARAVIND
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HC-KAR
NC: 2026:KHC:61144
WP No. 24314 of 2026
CNR: KAHC010536622026
ORAL ORDER
The present writ petition assails the order dated
09.03.2026 passed by the Additional Senior Civil Judge and
JMFC, Kunigal, in O.S. No. 42/2023, whereby I.A. No. 11 filed
under Order I Rule 10(6) of the Code of Civil Procedure, 1908,
seeking transposition of defendant No. 3 as plaintiff No. 2,
came to be rejected.
2. Respondent No. 1, being the plaintiff, instituted the suit
seeking partition of the suit schedule properties. Defendant
Nos. 1 and 3 filed their written statements claiming their
respective shares in the suit schedule properties. Defendant
No. 2 filed a written statement along with a counterclaim
seeking declaratory reliefs on the basis of a Will dated
03.12.2011 and a release deed dated 19.11.2022.
2.1 The Trial Court rejected the application on the ground
that the plaintiff had neither sought withdrawal of the suit nor
expressed any intention to abandon the same.
3. Learned counsel appearing for the petitioner submits that
the petitioner was defendant No. 3 in the suit. When defendant
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HC-KAR
NC: 2026:KHC:61144
WP No. 24314 of 2026
CNR: KAHC010536622026
No. 2 filed a counterclaim seeking declaratory reliefs, the
plaintiff expressed no objection to the counterclaim being
decreed. It is contended that the plaintiff is colluding with
defendant No. 2 and is not effectively contesting the reliefs
sought in the counterclaim. In order to effectively contest the
said reliefs, the petitioner filed an application seeking
transposition from defendant No. 3 to plaintiff No. 2.
3.1 Learned counsel further submits that the plaintiff has no
objection to the petitioner being transposed as plaintiff No. 2.
However, the Trial Court, without considering the necessity of
such transposition in the light of the alleged collusion between
the plaintiff and defendant No. 2, erroneously rejected the
application. It is further contended that the judgment relied
upon by the Trial Court is inapplicable to the facts of the
present case. Reliance is placed on the judgment of the Hon’ble
Supreme Court in Azgar Barid v. Mazambi reported in
(2022) 5 SCC 334 , to contend that, in a suit for partition, the
positions of the plaintiff and the defendants are
interchangeable.
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HC-KAR
NC: 2026:KHC:61144
WP No. 24314 of 2026
CNR: KAHC010536622026
4. Per contra, learned counsel appearing for respondent No.
3 submits that the transposition of a defendant as a plaintiff
can be permitted only when the plaintiff seeks to withdraw the
suit or expresses an intention to abandon the same. Since
neither of these circumstances arises in the present case, it is
contended that the Trial Court was justified in rejecting the
application .
5. Heard the learned counsel for the parties and perused the
records.
6. The suit is one for partition. The petitioner, who is
defendant No. 3, has filed a written statement claiming a share
in the suit schedule properties. Defendant No. 2 has filed a
written statement along with a counterclaim seeking
declaratory reliefs founded on the Will and the release deed
referred to above. The petitioner contends that the plaintiff is
colluding with defendant No. 2 and is not effectively contesting
the reliefs sought in the counterclaim. In these circumstances,
the petitioner seeks transposition as plaintiff No. 2 to effectively
contest the said claim.
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HC-KAR
NC: 2026:KHC:61144
WP No. 24314 of 2026
CNR: KAHC010536622026
7. The Hon’ble Supreme Court, in Azgar Barid v.
Mazambi , reported in (2022) 5 SCC 334 , has recognised
that, in a suit for partition, the positions of the plaintiff and the
defendants are interchangeable, as each party asserts rights in
relation to the other parties. It has been held that, so long as
the suit remains pending, a defendant may seek transposition
as a plaintiff, and a plaintiff may likewise seek transposition as
a defendant, depending on the facts and circumstances of the
case.
8. The aforesaid principle is applicable to the facts of the
present case. The Trial Court, while rejecting the application,
has not assigned cogent reasons as to why the proposed
transposition would be impermissible or prejudicial to the rights
of the other parties. The view that transposition can be
permitted only when the plaintiff seeks to withdraw or abandon
the suit fails to take into account the principles governing
transposition in a partition suit, as explained by the Hon’ble
Supreme Court.
9. In a suit for partition, all parties claiming shares in the
suit schedule properties have an interest in the determination
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HC-KAR
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CNR: KAHC010536622026
of their respective rights. Having regard to the nature of the
suit, the counterclaim filed by defendant No. 2, and the
petitioner’s contention that the plaintiff is not effectively
contesting the same, the petitioner’s request for transposition
deserves to be allowed. The fact that the plaintiff has no
objection to the proposed transposition further supports the
petitioner’s request.
10. Permitting the petitioner to be transposed as plaintiff No.
2 would enable the petitioner to effectively participate in the
adjudication of the dispute and would not, by itself, prejudice
the rights of defendant No. 2 or the other parties. Their
respective rights and contentions would remain open for
adjudication in accordance with law.
11. In that view of the matter, the impugned order cannot be
sustained and warrants interference.
12. Accordingly, the following :
O R D E R
I. The writ petition is allowed .
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HC-KAR
NC: 2026:KHC:61144
WP No. 24314 of 2026
CNR: KAHC010536622026
II. The order dated 09.03.2026 passed by the Additional
Senior Civil Judge and JMFC, Kunigal, in O.S. No. 42/2023,
rejecting I.A. No. 11, is hereby set aside .
III. I.A. No. 11 filed under Order I Rule 10(6) of the Code of
Civil Procedure, 1908, is allowed .
IV. The petitioner is permitted to be transposed as plaintiff No.
2 in O.S. No. 42/2023.
V. The Trial Court shall endeavour to dispose of the suit
expeditiously, in accordance with law.
VI. All contentions of the parties on the merits of the suit and
the counterclaim are left open for consideration by the Trial
Court.
Sd/-
(K. V. ARAVIND)
JUDGE
VN
List No.: 1 Sl No.: 6