IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.2402/2019 (GM – CPC) BETWEEN:
BEENA ANTHONY W/O ANTHONY CHACKO AGED ABOUT 48 YEARS, R/AT NO.429, 5TH MAIN, 2ND BLOCK, HRBR LAYOUT BANGALORE-560043 ... PETITIONER [BY SRI PRASHANTH KUMAR D., ADV.] AND:
KRISHNAPPA S/O LATE JAKKUR NARAYANAPPA R/AT BAGALURU VILLAGE, JALA HOBLI BANGALORE NORTH TALUK BANGALORE-560064 (SINCE DECEASED RER. BY RESPONDENTS NO.1 TO 8 HEREIN) 1. DEVEERAMMA W/O LATE KRISHNAPPA AGED MAJOR R/AT BAGALURU VILLAGE JALA HOBLI BANGALORE NORTH TALUK BANGALORE-560064 2. AMBUJA D/O LATE KRISHNAPPA W/O CHANDRASHEKAR AGED MAJOR R/AT NO.305, BAGAGUNTA NAGASANDRA POST BANGALORE-560073 3. SHOBHA D/O LATE KRISHNAPPA W/O RANGANATHA AGED MAJOR R/AT GULUR VILLAGE & POST, KASABA HOBLI, TUMKUR TALUK TUMKUR-572102 4. PADMA D/O LATE KRISHNAPPA W/O SHANTHA KUMAR AGED MAJOR R/AT SEEKAYANAHALLI VISHWANATHAPURA POST KUNDANA HOBLI DEVANAHALLI TALUK-562110 BANGALORE RURAL DISTRICT 5. ASHA D/O LATE KRISHNAPPA AGED MAJOR BAGALURU VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK BANGALORE-560064 6. MURTHY S/O KRISHNAPPA AGED MAJOR BAGALURU VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK BANGALORE-560064 7. MANJUNATH S/O LATE KRISHNAPPA AGED MAJOR BAGALURU VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK BANGALORE-560064 8. NARASIMHA MURTHY S/O LATE V.KRISHNAPPA AGED MAJOR R/AT NO.36, MALLAPPA LAYOUT 1ST CROSS, KALYAN NAGAR POST BANGALORE-560043 9. PAUL S. SANTHISH S/O ALPONES SATHISH AGED MAJOR, R/AT NO.14, MALLAPPA LAYOUT, 1ST CROSS, KALYAN NAGAR POST, BANGALORE-560043 10. Mr. S.H.NARAYANA GOWDA S/O LATE S.H.HEMANNA AGED ABOUT 43 YEARS, R/AT SATHNUR VILLAGE BAGALURE POST, JALA HOBLI BANGALORE NORTH TALUK BANGALORE DISTRICT …RESPONDENTS [BY SRI V.VIJAYA SHEKARA GOWDA, ADV. FOR C/R-6.) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE RECORDS PERTAINING TO THE IMPUGNED ORDER AND QUASH THE ORDER DATED 22.11.2018 [ANNEXURE-A] PASSED BY THE HON'BLE SENIOR CIVIL JUDGE [SR.DN] JMFC, DEVANAHALLI IN O.S.NO.1231/2006 AND CONSEQUENTLY ALLOW THE INTERLOCUTORY APPLICATION [IA.NO.37] FILED UNDER ORDER 1 RULE 1(2) OF THE CODE OF CIVIL PROCEDURE, 1908 [ANNEXURE-E].
THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner has challenged the order dated 22.11.2018 passed on I.A.No.37 in O.S.No.1231/2006 on the file of the Senior Civil Judge (Sr. Div.), JMFC, Devanahalli, wherein the said application (I.A.No.37) filed under Order 1 Rule 10(2) of the Code of Civil Procedure, 1908 (CPC) has been rejected.
2. Petitioner herein filed O.S.No.1231/2006 seeking the relief of specific performance of the agreement of sale dated 01.07.2004. In the said proceedings, I.A.No.37 was filed by the plaintiff under Order 1 Rule 10(2) of CPC to implead the proposed defendant Nos.4 to 6. I.A.No.40 was also filed by the impleading defendant Nos.4 and 5 to implead them as the proposed defendant Nos.4 and 5.
3. It is the contention of the plaintiff that during the pendency of the suit proceedings, the defendants entered into an agreement of sale dated 17.05.2005 and extended an agreement dated 23.09.2008 for the sale of the suit property with the proposed defendant Nos.4 and 5. The said proposed defendants also entered into and agreement of sale with defendant No.6 for the sale of said suit property. The proposed defendants have developed the suit property into residential layout. The plaintiff’s legitimate rights are frustrated.
4. Learned counsel for the petitioner placing reliance on the judgment of the Hon’ble Apex Court in the case of Thomson Press (India) Limited vs. Nanak Builders and Investors Private Limited and others reported in (2013) 5 SCC 397 and the order passed by the cognate bench of this Court in the case of Smt. Narayanamma vs. Sri. H.M. Krishnappa, since dead rep., by L.R. and others reported in ILR 2015 Karnataka 474, submitted that a decree for specific performance of a contract may be enforced against a person who claimed under the plaintiff (sic defendant), and title acquired subsequent to the contract. Transfer of their right made by the original defendants in favour of the proposed defendants makes them as a necessary and proper party for the effective adjudication of the dispute between the parties. Hence, the Trial Court dismissing the application without valid basis, calls for interference by this Court.
5. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the material on record.
6. The undisputed facts are that O.S.No.1231/2006 is filed by the plaintiff seeking for specific performance of the agreement of sale dated 01.07.2004. It is the case of the plaintiff that an agreement of sale dated 17.05.2005 has been executed by the defendants and the said agreement has been extended on 23.09.2008 with the proposed defendant Nos.4 and 5, who inturn have agreed to sell the suit property in favour of proposed defendant No.6. It is a well settled law that a necessary party is a person who ought to have been joined as a party and in whose absence no effective decree could be passed. A proper party is a party who though not a necessary party, would enable the Court to effectively adjudicate the dispute between the parties. In a suit for specific performance of agreement of sale, the relevant factors to be proved by the plaintiff are that, there is due execution of the agreement of sale and ready and willingness on his part to perform his part of the contract. In the suit for specific performance of agreement, the scope of the suit cannot be enlarged to adjudicate upon the other disputes. IA filed by the proposed defendant Nos.4 and 5 to implead them as parties to the proceedings has been dismissed by the trial court. It is necessary for the trial court to maintain consistency in the orders and as such no fault can be found with the order impugned.
7. In the suit of the year 2006 relating to agreement dated 2005 and 2008, the application (I.A.No.37) is filed by the petitioner on 15.09.2018. As could be seen from the available material on record, the petitioner is in the habit of filing successive interlocutory applications. On the dispute raised, inasmuch as the signature of the defendants in the agreement of sale, the matter was referred to the handwriting expert and the report has been called for and the same has been marked pursuant to the order of this Court in W.P.No.36049/2017. It is observed by the Trial Court that after filing of the expert opinion, about 14 interlocutory applications have been filed by the parties when the matter is set down for final arguments.
8. In the judgment referred to by the learned counsel in Thomson Press (India) Limited supra, the Hon’ble Apex Court has considered the rights of the parties in a suit for specific performance vis-à-vis the suit property having transferred in favour of third parties pendente lite. In such cases, it was held that transfer pendente lite is neither illegal nor void ab initio but remains subservient to rights eventually determined by Court in pending litigation. Hence, transfer in favour of purchaser pendent elite is effective in transferring title subject to certain obligation as decision of court in a suit is binding not only on litigating parties but also on those who derive title pendente lite. But in the present case, no such title is transferred to the proposed defendants. They are claiming their rights as the agreement holders. No right to the title has been accrued by the said proposed defendants.
9. In the case of Smt. Narayanamma’s case supra, the effect of the transfer pendente lite has been discussed and it is held that when the vendors have no subsisting interest, it is only the fourth respondent therein who is the proper and necessary party to receive any such directions, if the petitioner should succeed in the suit. Hence, he shall be arraigned as respondent No.4 in the suit and he shall have the benefit of the time prescribed in law to file his written statement. A compromise decree was drawn up in the suit filed by respondent No.4 against the respondent Nos.1 to 3 in respect of the same property where the plaintiff has filed the suit for specific performance of the contract. In such circumstances, respondent No.4 who was not a party to the agreement between the petitioner and respondent Nos.1 to 3 is held to be the proper and necessary party to the suit. Hence, the said decision is not applicable to the present facts of the case.
10. The said application is filed by the petitioner at the fag-end of the proceedings which has been rightly dismissed by the Trial Court. No jurisdictional error is found in the order impugned.
Hence, writ petition stands dismissed as devoid of merits.
Sd/- JUDGE PMR