IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.4329 OF 2017 (GM-CPC) BETWEEN:
MALLIKARJUNA B. C. S/O. LATE GURUSWAMY AGED ABOUT 55 YEARS BASAVESHWARA MEDICALS OPP: KSRTC BUS STAND MALAVALLI MANDYA DISTRICT-571 401 ... PETITIONER (BY SRI VINAY D. HOSMATH FOR SRI D.S.HOSMATH, ADVOCATE) AND:
1. SRI. S. JAYANNA S/O. LATE SANNEGOWDA AGED ABOUT 48 YEARS AGRICULTURIST R/O: IGGALURU VILLAGE VIRUPAKSHIPURA HOBLI CHANNAPATNA TALUK RAMANAGARA DISTRICT-562 138 2. B. C. NAGARAJU S/O. THIMMANA CHOWDEGOWDA AGED ABOUT 50 YEARS AGRICULTURIST 3. B. N. VISHWAS S/O. B.C. NAGARAJU AGED ABOUT 23 YEARS AGRICULTURIST 4. B. N. KARTHIK S/O. B.C. NAGARAJU AGED ABOUT 21 YEARS AGRICULTURIST 5. B. N. VINUTHA D/O. B.C. NAGARAJU AGED ABOUT 20 YEARS HOUSEWIFE R2 TO R5 ARE R/O. NO.T.R.P-7 NES EXTENSION SHETTAHALLI ROAD 1ST CROSS, 1ST DIVISION MALAVALLI TOWN MALAVALLI TALUK MANDYA DISTRICT-571 401 ... RESPONDENTS (BY SRI T. SESHAGIRI RAO, ADVOCATE FOR R1; R2 TO R5 ARE SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER VIDE ANNXURE-E PASSD BY THE LEARNED SR.CIVIL JUDGE & JMFC, MALAVALLI IN O.S.NO.36/2015 DTD:5.1.2007 AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the now impleaded fifth defendant in a specific performance suit in O.S.No.36/2015 filed by the contesting respondent No.1-S.Jayanna is invoking the writ jurisdiction of this Court for assailing the order dated 05.01.2017, a copy whereof is at Annexure – E whereby the respondent-plaintiffs’ application filed under Order I Rule 10(2) read with Section 151 of CPC, 1908 for impleading has been favoured by the learned trial Judge. After service of notice to all the respondents, only the first respondent being the contesting party has entered appearance through his counsel and resists the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines to grant indulgence in the matter because:
a) the petitioner bought a part of the subject property pursuant to a compromise in his suit in O.S.No.44/2016 that was decreed on 12.03.2016; apparently, the first respondent’s pending suit in O.S.No.36/2015 for a decree of specific performance of the agreement to sell dated 01.02.2014 precedes the suit of the petitioner;
b) the petitioner whether he bought the property by way of alleged agreement to sell or pursuant to compromise decree answers the description of a buyer pendente lite in terms of Section 52 of the Transfer of Property Act, 1882 and therefore, he is a proper and necessary party for the adjudication of suit of the first respondent; the argument that the petitioner suffers lis pendens is a poor ground to resist his impleadment.
In the above circumstances, this writ petition is dismissed.
All the contentions of the parties including the one as to identity of the property are kept open.
No costs.
Sd/- JUDGE KTY