IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION NO.48821/2016 (GM-CPC) BETWEEN:
Mirza Humayun Ali S/o Mirza Abdul Kareem, Aged about 66 years, R/at: No.3/1, Arab Lane, B-Street, Richmond Town, Bengaluru – 560025.
(By Sri.G.L.Vishwanath, Advocate) AND:
1. P.Sreedhar S/o Penchalaiah, Aged about 57 years, R/at: No.1923, II A Main, 22nd Cross, 6th Block, Jayanagar, Bengaluru – 560082.
2. Azhar Syed Akbar, S/o Rawoof Syed Akbar, Aged 42 years, R/at No.5, Arab Lane, B-Street, Richmond Town, Bengaluru – 560025.
(By Sri.Kiran, Advocate for R1 R2 - served) …Petitioner ...Respondents This Writ Petition is filed under Article 227 of the Constitution of India praying to quash &/or set aside the impugned order dated 12.08.2016 on IA.4 vide Annexure-E passed by the XIV Additional City Civil Judge, CCH No.28 Bangalore in O.S.No.1894/2015 and to consequently allow the application filed by the petitioner vide Annexure-C.
This Petition coming on for Orders this day, the Court made the following:
O R D E R The petitioner who is the plaintiff had filed the suit seeking for the relief of specific performance of the agreement dated 25.09.2009 is aggrieved by the order passed by the trial Court on the application filed under Order 1 Rule 10(2) read with Section 151 of CPC on I.A.No.4, whereby the trial Court has rejected the application for impleading, observing that the proposed impleading applicant is a stranger to the contract and that the cause of action of the plaintiff is only as against the owner of the property and not against the impleading applicant.
2. Learned counsel for the petitioner points out that the agreement is with the sole defendant on 25.09.2009. It is further submitted that after filing of the suit seeking for the relief of specific performance of the agreement, upon notice sole defendant appeared and has filed the written statement and has specifically averred regarding the sale deed having been executed in favour of the proposed impleading applicant at paragraph 6. It is stated that in light of the said averments and assertion of fact application under Order 1 Rule 10(2) of CPC came to be filed seeking to implead the purchaser of the property through a sale deed dated 29.03.2014 contending that said sale deed was subsequent to the agreement in favour of the plaintiff and hence, the proposed impleading applicant was a necessary party and was required to join in the execution of sale deed, if suit is decreed against the defendant.
3. Perused the order passed by the trial Court. It is noticed that the defendant No.1 who has been arrayed as respondent No.1 herein has been absenting himself and there has been no representation on his behalf. The perusal of the order sheet would reveal that the respondent No.1 was absent on 23.09.2019 and 22.10.2019. Insofar as the proposed impleading applicant is concerned, it is noticed that the notice is served but the said party has remained absent.
4. The only question that falls for consideration is as to whether the purchaser of the property from the owner i.e., defendant No.1 is a necessary party in the present proceedings and hence requires to be arrayed as a party in the present proceedings. It is clear that the purchaser of the property from the defendant No.1 has purchased the property through the owner. The plaintiff claims the relief of specific performance of the agreement dated 25.09.2009 claiming to be a person who has rights by virtue of a contract which is prior to the sale deed executed by the same defendant No.1 who is the owner on 29.03.2014 to the impleading applicant. The question as to whether the title has flowed to the impleading applicant would depend on proof of defence that he is the bonafide purchaser, which is a matter for trial. At this point of time taking note of Section 19(b) of the Specific Relief Act, 1963, it is clear that the right of the plaintiff even though he is a agreement holder would have a overriding effect if the plaintiff is able to make out a case to fulfill the requirements for granting a decree for specific performance. The burden is on the impleading applicant to raise the claim of being a bonafide purchaser. If the suit for specific performance is decreed, the purchaser through a sale deed subsequent at point of time to the agreement of the plaintiff, failing to prove that he is a bonafide purchaser for value would be required to join in the execution of the sale deed.
5. The Apex court in the case of LALA DURGA PRASAD AND ANOTHER VS. LALA DEEP CHAND AND OTHERS reported in AIR 1954 SC 75 has opined that :
“42. In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff.”
6. Reliance has been placed on the Judgment of the Apex Court in KASTURI V. IYYAMPERUMAL reported in AIR 2005 SC 2813 wherein the Apex Court had laid down tests to be considered before impleading a person who is a stranger to the contract. However the facts in the said case relate to an adverse claim by the strangers to the title of the vendor. Further the 1st test of the Apex Court can also be held to be satisfied in light of the requirement of the purchaser from the vendor to join in the execution of the sale deed in AIR 1954 SC 75.
7. Accordingly, in light of the facts of the case, the impugned order is liable to be set aside and IA filed under Order 1 Rule 10(2) of CPC is allowed.
The trial Court taking note that the suit relates to the year 2015 to expedite the trial taking note of the seniority of the case vis-à-vis the other pending matters.
Sd/-
JUDGE NS