IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.2100 OF 2017 (GM-CPC) Between:
1. K.Vishwanatha Prabhu S/o Late K.Madhava Prabhu Aged about 65 years 2. Mrs. Latha D.Prabhu W/o K.Vishwanatha Prabhu Aged about 56 years Both are residing at No.269/1, “Sri Ram” Don Bosco Hall Lane, Falnir, Mangaluru-575003 (By Sri K.N.Jayaprakash, Advocate for Sri Vishwajith Rai M, Advocate) And:
1. Smt. Parvathi W/o Late Gangu @ Nagappa Gowda Aged about 75 years 2. Sathish Gowda S/o Late Gangu @ Nagappa Gowda Aged about 53 years ... Petitioners 3. Shekar Gowda S/o Late Gangu @ Nagappa Gowda Aged about 51 years, 4. Sridhar Gowda S/o Late Gangu @ Nagappa Gowda Aged about 49 years, 5. Smt. Harini D/o Late Gangu @ Nagappa Gowda Aged about 47 years, All are residing at D.No.14-3-281 Venkata Gowda Compound, Kudumbi Garden, Don Bosco Hall Road, Mangaluru – 575 001 6. M/s Abdul Rahiman Enterprises A Partnership Firm Represented by its Partner Mr. P.L.Khaleel S/o Suleman Aged about 51 years, R/at Rehana Manzil, Kuttar Padavu, Madani Nagar, Munnur, Mangaluru – 575 003 ... Respondents This Writ Petition is filed under article 227 of Constitution of India, praying to Quash the order annexure-A dated 13.12.2016 made on IA No.2 in R.A.No.37/2012 by the court of Prl. Senior Civil Judge and CJM, at Mangaluru, D.K.
This writ petition coming on for preliminary hearing this day, the court made the following:
ORDER The impleading applicants/petitioners filed application under Order I Rule 10 read with Section 151 of the Code of Civil Procedure to implead as appellants in RA No.37/2012. The same is rejected by the impugned order.
2. The father of the respondent Nos.1 to 5 Gangu @ Nagappa Gowda filed OS No.297/2001 for permanent prohibitory injunction against the respondent No.6 contending that he is the owner in possession and enjoyment of the suit schedule property and the defendants have no manner of right, title or interest in the suit schedule property.
3. The defendant filed written statement and resisted the claim and denied the entire plaint averments contending that he never interfered with the plaintiff’s possession over the suit schedule property.
4. After contest the trial court by its Judgment and decree dated 03.03.2010, dismissed the suit holding that the plaintiff has failed to prove that he is the absolute owner in possession and enjoyment of the suit schedule property and further failed to prove that the defendant has constructed a building by encroaching upon the suit schedule property without leaving sufficient set-back and further held that the plaintiff is not entitled for any relief. Accordingly, suit came to be dismissed.
5. Aggrieved by the said Judgment and Decree, the respondents No.1 to 5 filed RA No.37/2012 before the Prl. Senior Civil Judge and CJM, Mangaluru. During the pendency of the appeal, the present petitioners filed an impleading application IA No.2 under Order I Rule 10 read with Section 151 of Code of Civil Procedure to come on record on the ground that they have purchased the suit schedule property from respondent No.1 to 5 who are the legal representatives of original plaintiff Gangu @ Nagappa Gowda under the registered sale deeds dated 23.10.2014 and 08.09.2014. The said application was resisted by the defendant. The lower appellate Court rejected the said application filed by the petitioners under Order I Rule 10 read with Section 151 of CPC vide order dated 13.12.2016. Hence, the present Writ Petition is filed.
6. I have heard the learned counsel Sri K.N.Jayaprakash on behalf of Sri Vishwajith Rai M, learned counsel appearing for the petitioners.
7. Learned counsel Sri Jayaprakash vehemently contended that though the impugned order passed by the Appellate Court rejecting the impleadment of the petitioners is erroneous and contrary to the material on record, when the impleading applicants had purchased the property from the respondent Nos.1 to 5 during the pendency of the appeal before the Lower Appellate Court, they are necessary and proper parties to the Appeal. Therefore, he sought to set aside the impugned order passed by the lower appellate Court.
8. In view of the aforesaid contentions urged by the learned counsel for the petitioners, the only point that arises for consideration in this writ petition, is;
“Whether the lower appellate Court is justified in rejecting IA No.2 filed by the petitioners under Order I Rule 10 read with Section 151 of Code of Civil Procedure, 1908 in the facts and circumstances of the present case?”
9. I have given my anxious consideration to the arguments advanced by the learned counsel for the petitioners and perused the entire material on record.
10. It is an undisputed fact that the original plaintiff Gangu @ Nagappa Gowda filed OS No.297/2001 against the defendants for permanent injunction contending that he is the owner in possession of the suit schedule property. The same was resisted by the defendants. After contest the Trial Court by its Judgment and Decree dated 03.03.2010, dismissed the suit holding that the plaintiff is not the owner in possession of the suit schedule property and he failed to prove that the defendant has constructed building by encroaching upon the suit schedule property without leaving sufficient set-back etc.
11. When the judgment and decree is the subject matter of RA No.37/2012 filed by the legal representatives of the original plaintiff Gangu @ Nagappa Gowda and the Trial Court has categorically recorded a finding that the plaintiff was not the owner of the suit schedule property as on the date of the decree. The purchaser/impleading applicants have purchased the suit schedule property, even though the trial court recorded a finding that the plaintiffs are not the owners of the suit schedule property and the sale itself is invalid. Therefore, the sale was subject to the result of RA No.37/2012. Since the decree was made against the vendors of the present applicants. The Appellate Court considering the entire material on record, recorded a finding that the injunction suit filed by the vendors of the present petitioners in OS No.222/1999 came to be dismissed and the cause of action on which the present applicants have sought relief was dismissed. Hence, on the same cause of action the present applicants cannot seek to implead themselves as appellant Nos.6 and 7 to continue the proceeding on the ground that they have purchased the suit schedule property. If really they have purchased the suit properties during the pendency of the present appeal on the recurring cause of action, if respondent herein has interfered with the possession of the applicants, with respect to suit properties, they can as well file another suit against the respondent, restraining him from interfering with the possession of the applicants. The earlier cause of action on which the applicants have filed suit when admittedly was dismissed, the applicants are neither proper nor necessary parties to decide the appeal on hand. Since the cause of action does not survive, the applicants are neither proper nor necessary parties to decide the matter in issue in the present appeal. Accordingly, the application filed by the applicants is devoid of merits and it deserve to be dismissed as the same is in accordance with law and the petitioners have not made out any grounds to interfere with the impugned order by exercising the jurisdiction under Article 227 of the Constitution of India.
Accordingly, the Writ Petition is dismissed.
SD/- JUDGE KMV/PN*