IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 11407 OF 2019 (GM-CPC) BETWEEN:
SMT GOWRAMMA W/O. JAYAPPA, AGED ABOUT 53 YEARS, AGRICULTURIST, R/AT ARALIHALLI, BHADRAVATHI TALUK, SHIMOGA DISTRICT- 577 201.
(BY SRI. M V MAHESWARAPPA, ADVOCATE) AND:
1. THIPPESHAPPA S/O. THIMMAPPA, AGED ABOUT 54 YEARS, 2. SMT. RATHNAMMA W/O. THIPPESHAPPA, AGED ABOUT 51 YEARS, BOTH ARE R/AT NO. 4TH CROSS, BEHIND LAKSHMI NURSING HOME, KANAKANAGAR, OLD TOWN, BHADRAVATHI, SHIVAMOGA DISTRICT -577 201 ... PETITIONER ... RESPONDENTS (BY SRI. CHANDRASHEKAR, ADVOCATE FOR R1 & R2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 08.02.2019 ON I.A.NO.7 IN O.S.NO.337/2016 UNDER ORDER 1 RULE 10 (2) OF CIVIL PROCEDURE CODE TO ALLOW THE APPLICATION FILED BY THE PETITIONER AND PRODUCED ANNEXURE-E IN THE ABOVE W.P. PASSED BY THE 3RD ADDL. CIVIL JUDGE AND JMFC AT BHADRAVATHI.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN B GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the intending party to a specific performance suit in O.S.No.337/2016, is invoking the writ jurisdiction of this court for assailing the order dated 8.2.2019, a copy whereof is at Annexure-E, whereby the learned III Addl. Civil Judge, Bhadravathi, having rejected her application filed under Order I Rule 10(2) r/w section 151 of CPC, has refused to permit her to enter the array of parties.
2. After service of notice, both the respondent- plaintiffs having entered appearance through their counsel resist the Writ Petition.
3. Having heard the learned counsel for the parties and having perused the Petition Papers, relief needs to be granted to the petitioner for the following reasons:
(a) petitioner happens to be the plaintiff in a partition suit in O.S.No.178/2018 wherein the property involved in the present suit happens to be the suit property; this apart, the respondent-plaintiffs herein happen to be the defendants in the said suit; therefore, the decree to be made in the partition suit will cast it’s shadow or light on the decree to be made in the specific performance suit, subject to all just exceptions;
(b) the Apex court in the case of Razia Begum Vs.
Sahebzad Anwar Begum, AIR 1958 SC 886 has laid down the parameters for deciding who is a proper and necessary party; for enforcement of a contract, ordinarily, a person who is not a privy to the contract is neither a necessary party nor a proper party; however, where the contract involves a subject matter in which such a person has a vested interest, he may becomes proper party, if not a necessary party; this aspect of the matter having been not adverted to by the learned trial Judge, there is an error apparent on the face of the record warranting indulgence of this court; and, (c) the decision of Madras High Court relied upon by the learned counsel for the respondents in the case of Leelavathi Vs. Venkateswara Finance, LAWS (MAD) 2009 4 189 does not much come to their aid in as much as it is not shown in the said case that the party who wanted to be impleaded had arguably any vested interest in the subject matter of contract which was sought to be enforced in a specific performance suit; thus, the facts of that case and the facts of this case are poles asunder.
In the above circumstances, this writ petition succeeds; impugned order is invalidated; petitioner’s subject application having been favoured, she is permitted to enter the suit fray as defendant No.4 subject to the condition that the petitioner shall pay a cost of Rs.5,000/- to the respondent-plaintiffs together, and that she shall not drag on the suit proceedings, unjustifiably.
All contentions of the parties are kept open.
The learned trial Judge is required to expedite the trial of the suit keeping in view the other pending cases, as well.
Sd/- JUDGE cbc