IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Transcription

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE 13 TH DAY OF APRIL, 2015 BEFORE THE HON BLE MRS JUSTICE S SUJATHA Writ Petition No.37048/2013 (GM-CPC) BETWEEN: SMT. LAKSHMAMMA W/O LATE KRISHNAPPA AGED 63 YEARS R/O PANATHUR VILLAGE, VARTHUR HOBLI BANGALORE. (BENEFIT OF SR. CITIZEN NOT CLAIMED)... PETITIONER (BY SRI AMARESH A ANGADI (NOC), ADV.) AND 1.SRI P.K JAYACHANDRA REDDY S/O LATE SRI. M.P. KRISHNAREDDY AGED ABOUT 50 YEARS. 2.SMT. BHARATHII W/O SRI.P.K. SRINIVAS REDDY AGED ABOUT 43 YEARS BOTH ARE R/AT PANATHUR VILLAGE, VARTHUR HOBLI BANGALORE EAST TALUK BANGALORE-13

2 2 3.SMT. RAMAKKA W/O LATE SRI. VENKATESHAPPA AGED ABOUT 45 YEARS R/AT C/O P.M. MUNIRAJU COMPLEX, MARIYAPPA LAYOUT, PANATHUR MAIN ROAD, PANATHUR VILLAGE, VARTHUR HOBLI BANGALORE EAST TALUK BANGALORE SRI. HARINDA S/O LATE SRI. VENKATESHAPPA AGED ABOUT 29 YEARS R/AT C/O P.M. MUNIRAJU COMPLEX, MARIYAPPA LAYOUT, PANATHUR MAIN ROAD, PANATHUR VILLAGE, VARTHUR HOBLI BANGALORE EAST TALUK BANGALORE SRI. AMBARISH S/O LATE SRI. VENKATESHAPPA AGED ABOUT 26 YEARS R/AT C/O P.M. MUNIRAJU COMPLEX, MARIYAPPA LAYOUT, PANATHUR MAIN ROAD, PANATHUR VILLAGE, VARTHUR HOBLI BANGALORE EAST TALUK BANGALORE RESPONDENTS (BY SRI HARISH H V FOR R1 & 2 SRI G.UDAYA KUMAR, ADV. FOR R3 SRI B.S.SHIVKANTHA, ADV. FOR R5 R4 SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN OS 1096/10 ON THE FILE OF THE PRESIDING OFFICER, FTC-III BRD, BANGALORE AND ETC.

3 3 THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON , COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The respondents 1 and 2 herein filed O.S.No.1096/2010 against respondents 3 to 5 contending that the said respondents are the absolute owners in possession and enjoyment of an extent of 1 acre 22 guntas in Sy.No.67/2 Panathur village, Bangalore East Taluk and that the said property was agreed to be purchased by the respondents 1 and 2 for a total consideration of Rs.29,25,000/- and sought for a relief of specific performance of the said contract dated In the said suit proceedings, the petitioner herein filed an application under Order 1 Rule 10(2) of CPC contending that she is the co-owner of suit schedule property entitled to 50% share therein. The said application was contested by the respondents 1 and 2. After hearing, the learned trial

4 4 Judge dismissed the said application against which this writ petition is filed. 2. The learned counsel appearing for the petitioner contended that the petitioner/proposed defendant was the legal heir of Siddanahalli Muniyappa, to whom the suit schedule property originally belonged to and as such she was a necessary party for the effective adjudication of the matter, the defendants (respondents 3 to 5) have entered into an agreement with respondents 1 and 2 to sell the suit schedule property without her knowledge and even as per the RTC extract she is in possession of the suit schedule property. It is further contended that the learned trial Judge without appreciating the same has dismissed the application on the ground that the petitioner has failed to establish her relationship with respondents 3 to 5 and also placed reliance on the judgment of the Hon ble Apex Court in the case of THOMSON PRESS (INDIA) LTD. vs NANAK

5 5 BUILDERS AND INVESTORS P. LTD. AND ORS. reported in AIR 2013 SC 2389 and BALURAM vs P.CHELLATHANGAM & ORS. decided on in Civil Appeal Nos of Per contra, learned counsel appearing for respondents 1 and 2 argued that the petitioner is a stranger to the suit filed by the respondents 1 and 2 against respondents 3 to 5 for specific performance of the contract dated , the petitioner is trying to enlarge the scope of the suit which is not permissible under law as in a suit for specific performance between the parties, the right over a title of a joint family property between petitioner and respondents 3 to 5 could not be adjudicated, which totally diverts the issue pending for adjudication between the parties. Learned counsel supported the order passed by the trial Judge and also placed reliance on the Judgment of Hon ble Apex Court in KASTURI vs IYYAMPERUMAL AND OTHERS reported in AIR 2005 SC

6 6 2813, THOMSON PRESS (INDIA) LTD. vs NANAK BUILDERS AND INVESTORS P. LTD. AND ORS reported in AIR 2013 SC 2389, BHARAT KARSONDAS THAKKAR VS M/s KIRAN CONSTRUCTION CO. AND ORS. reported in (2008)13 SCC After hearing the parties and perusing the records, it is clear that respondents 1 and 2 have filed O.S.No.162/2010 for specific performance of contract dated said to have been executed by respondents 3 to 5 agreeing to sell the agricultural land bearing Sy.No.67/2 of Panathur Village, Varthur Hobli, Bangalore East taluk measuring 1 acre 22 guntas. The petitioner has filed the application under Order 1 Rule 10(2) CPC seeking for impleadment as defendant no.4 in the said suit, setting up her claim that she is the legal heir of one Sri Siddanahalli Muniyappa who was the original owner of the said suit schedule property and she is entitled to half share in the said suit schedule property. The trial Court has held that

7 7 as far as the suit proceedings are concerned, applicant is not a proper or necessary party and dismissed the application. 5. Order 1 Rule 10(2) of CPC provides that the Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the question involved in the suit be added. Thus, it is necessary to establish for a party seeking impleadment that the said party is necessary or proper party to adjudicate upon and to settle the issue before the Court effectually.

8 8 6. In the case of Thomson Press India Ltd. (supra) the question before the Apex Court was, Whether the appellant who was the transferee pendente lite having notice and knowledge about the pendency of the suit for specific performance and order of injunction can be impleaded as party under Order 1 Rule 10 on the basis of sale deeds executed in their favour by defendants in the suit. In that context, the Apex Court has held that no one other than parties to an agreement to sell is a necessary and proper party to a suit for specific performance. The application of the appellant under transferee pendente lite under Order 1 Rule 2 CPC cannot therefore be allowed. However, under Order 22 Rule 10 in cases of assignment, erection and devolution of any interest during the pendency of the suit the suit may by leave of the Court be continued by or against the person or upon whom such interest has come or devolved.

9 9 7. In the Judgment of the Apex Court in Baluram case (supra), it is held that Order 1 Rule 10(2) CPC enables the Court to add a necessary or proper party so as to effectually and completely adjudicate upon and settle all the questions involved in the suit. In the said case, the appellant therein was not a stranger, being beneficiary of the trust property was allowed to be impleaded as a party. In Kasturi s case referred to above, it is categorically held that the question that is to be decided in a suit for specific performance of the contract for sale is to the enforceability of the contract entered into between the parties to the contract. If a person seeking title is added in such a suit, the scope of the suit for specific performance would be enlarged and it would be practically converted into a suit for title. It is further held, In our view the respondent nos.1 and 4 had no direct interest in the suit for specific performance because they are not parties to the contract nor do they claim any interest as parties to the litigation.

10 That apart, there is another principle which cannot also be forgotten. The appellant, who has filed the instant suit for specific performance of the contract for sale is dominus litus and cannot be forced to add parties against who he does not want to fight unless it is compulsion of the rule of law, as already discussed above. For the reasons aforesaid, we are therefore of the view that respondent Nos. 1 and 4 to 11 are neither necessary parties nor proper parties and therefore they are not entitled to be added as partydefendants in the pending suit for specific performance of the contract for sale. 18. In our view, the third party to the agreement for sale without challenging the title of the respondent No.3, even assuming they are in possession of the contracted property, cannot protect their possession without filing a separate suit for title and possession against the vendor. It is well settled that in a suit for specific performance of a contract for sale the lis between the appellant and respondent Nos. 2 and 3 shall only be gone into and it is also

11 11 not open to the Court to decide whether the respondent Nos. 1 and 4 to 11 have acquired any title and possession of the contracted property as that would not be germane for decision in the suit for specific performance of the contract for sale the controversy to be decided raised by the appellant against respondent Nos. 2 and 3 can only be adjudicated upon, and in such a lis the Court cannot decide the question of title and possession of the respondent Nos. 1 and 4 to 11 relating to the contracted property. 8. Considering the rival contentions and the judgments of the Apex Court, it is clear that in a suit for specific performance of a contract, the dispute is between the vendor and the agreement holder and the question of deciding the title and possession of the parties cannot be gone into. Petitioner being a stranger to the contract entered into between the respondent nos.1 and 2, though asserting that she is in possession of the property, she

12 12 cannot creep in to the suit filed by the petitioner and even, if any rights have to be asserted that cannot be adjudicated in the suit filed by the petitioner for specific performance. 9. For the foregoing reasons, the finding given by the trial Court that the petitioner is not a necessary or proper party for the effective adjudication of the suit for specific performance filed by the petitioner cannot be found fault with. Accordingly, writ petition being devoid of merit fails. It is needless to say that the petitioner is at liberty to avail the remedy available under law to assert her rights over the suit schedule property, if advised to do so and this order will not come in the way of petitioner to adjudicate her rights. BRN Sd/- JUDGE