IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.498/2013(GM-CPC) BETWEEN:
SMT. MUNIRATHNAMMA, AGED ABOUT 57 YEARS, D/O GUDDAMMA, R/AT KATHA NO. 2586/105 BEHIND ALANKAR TALKIES KOTE, HOSKOTE TOWN, BANGALORE RURAL DISTRICT-562114.
(BY SRI S NARENDRA, ADVOCATE FOR ... PETITIONER SRI M. V. CHANDRASHEKARA REDDY, ADVOCATE) AND:
1. SOLLU SAB, AGED 63 YEARS, 2. MOULA SAB AGED ABOUT 57 YEARS, BOTH ARE SONS OF LATE HASNUDDIN SAB @ BABA SA, R/AT KAMMAWARIPETE, BEHIND TALUK OFFICE, HOSAKOTE TOWN, BANGALORE RURAL DISTRICT-562114.
3. SRI RAMESH, AGED ABOUT 51 YEARS, S/O H. K. NARAYANASWAMY, R/A KOTE, HOSKOTE TOWN, BANGALORE RURAL DISTRICT-562114.
... RESPONDENTS (BY SRI P. N. NANJA REDDY, ADVOCATE FOR R1 & R3; (ABSENT) VIDE ORDER DATED 19.09.2016 NOTICE TO R2 IS HELD SUFFICIENT) …… THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 15.12.2012 PASSED ON I.A.NO.4 IN O.S.NO.185/2009 BY THE COURT OF THE ADDITIONAL CIVIL JUDGE AT JMFC HOSAKOTE, VIDE ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The plaintiff has filed the present writ petition against the order dated 15.12.2012 made in O.S.No.185/2009 on the file of the Addl. Civil Judge and JMFC, Hosakote, rejecting I.A.No.4 filed by the plaintiff under Order I Rule 10(2) of Code of Civil Procedure to implead one Ramesh as defendant No.3, who is the subsequent purchaser of the suit schedule property on 23.11.2010, during pendency of the suit.
2. The plaintiff/petitioner filed O.S.No.185/2009 against respondents 1 and 2/defendants for specific performance of agreement of sale Dated 12.03.1978 and to direct the defendants to execute the required sale deed by receiving the balance sale consideration and in the event of failure on the part of the defendants, requested the Court to execute the registered sale deed in accordance with law by receiving the balance sale consideration etc., contending that the father of the defendants executed an agreement of sale dated 12.03.1978 in favour of the plaintiff’s mother agreeing to sell all that piece and parcel of the property bearing old No.109 and new No.110 and later No.2586 situated at Kote, Hosakote Town, morefully described in the schedule to the plaint for a total consideration of `5,000/- and received an earnest amount of `3,500/- by agreeing to receive the balance sale consideration at the time of registration and put her in possession and enjoyment of the suit schedule property. Thereafter, deceased Hasnuddin @ Baba Sab, father of the defendants had also received a further sum of `1,000/- towards further part payment on 18.05.1988 agreeing to execute the sale deed by arranging all necessary documents by furnishing the same to the plaintiff and further agreed to receive the balance sale consideration of `500/- only at the time of registration of the sale deed. The father of the defendants had failed to arrange the papers for the purpose of execution of sale deed despite repeated requests made by mother of the plaintiff during her lifetime, who passed away without obtaining the sale deed, even though she was ready and willing to perform her part of the contract to pay balance sale consideration. Since the said person dodged to execute the sale deed on one pretext or the other, having no alternative, the plaintiff was constrained to convene a meeting on 18.03.1994 wherein the father of the defendants sought time for arranging necessary papers to execute necessary sale deed. In the meanwhile, father of the defendants initiated eviction proceedings in HRC No.1/1995 against the plaintiff under Section 29(1)(4) of the Karnataka Rent Control Act, which came to be allowed. The RRT No.1/2004 filed by the plaintiff was allowed and the order of the lower Court was set-aside. The HRRP preferred by the father of the defendants was dismissed by confirming the order passed in RRT No.1/2004.
3. Thereafter, plaintiff approached the father of the defendants requesting to execute the sale deed, but he did not oblige. Therefore, plaintiff was constrained to issue a legal notice which was returned with postal shara ‘addressee dead’. Arranging necessary papers was a condition precedent for obtaining the sale deed. Immediately, plaintiff collected the names of the defendants and caused a legal notice demanding them to execute the registered sale deed. The said notice was served on the defendant No.1 on 16.07.2009 and defendant No.2 refused to receive the same, etc. Therefore, the plaintiff filed the suit.
4. The original defendants filed written statement, denying the entire plaint averments and specifically contended that the defendants never executed any sale deed and the plaintiff has no cause of action to file the suit and the suit is barred by limitation etc.
5. When the matter was posted for plaintiff’s evidence, at that stage, learned counsel for defendants 1 and 2 filed a memo dated 16.03.2011 stating that the defendants sold the suit schedule property through registered sale deed dated 23.11.2010 in favour of one Ramesh. Therefore, plaintiff was constrained to file an application under Order I Rule 10(2) of Code of Civil Procedure to implead the said subsequent purchaser as third defendant, reiterating the averments made in the plaint. The said application was resisted by filing objections by the proposed third defendant stating that he is a bonafide purchaser of suit property and the suit was filed on concocted agreement of sale. The memo was filed during the year 2010 and the present application was filed during the year 2012. Plaintiff has taken nearly two years to take steps to implead the proposed defendant. The application is belated and suit itself is barred by limitation. When the suit itself is not maintainable, the impleading application is also not maintainable since he is a bonafide purchaser and the alleged agreement of sale is a forged document and not binding on the proposed defendant. Therefore, he prayed to dismiss the application.
6. The trial Court considering the application and objection, by impugned order dated 15.12.2012, rejected the application holding that the proposed defendant is not a necessary and proper party to adjudicate the suit effectively. Hence, the present writ petition is filed.
7. Sri. S. Narendra, learned counsel appearing for Sri. M.V. Chandrashekar Reddy for the petitioner submits that the impugned order passed by the Trial Court on I.A. No.4 rejecting the application filed under Order 1 Rule 10(2) of Code of Civil Procedure is erroneous and contrary to the material on record. He would further contend that when the suit is filed by the petitioner to enforce the agreement against defendant Nos.1 and 2, during the pendency of the suit, defendant Nos.1 and 2 illegally alienated the same to the proposed defendant. Therefore, the respondent No.3/proposed defendant is a necessary and proper party to adjudicate the matter between the parties. Hence the plaintiff has filed application under Order 1 Rule 10(2) of the Code of Civil Procedure. But the trial Court has not considered the same. He would further contend that defendant Nos.1 and 2 have colluded with defendant No.3 only to deprive the right of the petitioner. The alienation made during pendency of the suit is hit by the principle of lis pendens i.e., it is always hit by Section 52 of the Transfer of Property Act. Therefore, he sought to quash the impugned order passed by the trial court by allowing the present writ petition.
8. Per contra, Sri. P.N. Nanja Reddy, learned counsel for respondent Nos.1 to 3 sought to justify the impugned order passed by the trial Court.
9. Having heard the learned counsel appearing for the parties, it is not in dispute that the petitioner filed suit for the relief of specific performance of contract and to enforce the agreement dated 12.03.1978 against defendant Nos.1 and 2. The father of Defendant Nos.1 and 2 executed agreement of sale in favour of mother of the plaintiff on 12.03.1978 in respect of suit schedule property for a sum of `5,000/- and received an advance amount of `3,500/- on the same day.
10. The same is disputed by the defendants by filing written statement contending that they never executed any agreement of sale and the suit is barred by limitation. It is also not in dispute that the suit came to be filed in the month of August 2009 to enforce the agreement of sale dated 12.03.1978 said to have been executed by father of the defendant Nos.1 and 2. During pendency of the proceedings, defendant Nos.1 and 2 have executed a registered sale deed in favour of proposed defendant on 23.11.2010. The same was brought to the notice of the Court by the counsel for defendant Nos.1 and 2 on 16.03.2011 itself. But the plaintiff filed application for impleading the proposed defendant only on 23.07.2012 as he is a necessary and proper party. In support of his case, the learned counsel for petitioner relied upon the decision of the Hon’ble Supreme Court in case of Thomson Press (India) Limited Vs. Nanak Builders and Investors Private Limited and Others reported in (2013) 5 SCC 397.
11. The trial Court considering the material on record, recorded the finding that the alienation made by defendant Nos.1 and 2 in favour of defendant No.3 was on 23.11.2010, i.e., during the pendency of the suit proceedings between the plaintiff and defendants. Alienation during pendency of the suit is hit by the principle of lis pendens and same does not affect the rights of the plaintiff in whose favour agreement was executed. Whereas any alienation made in favour of any person during the pendency of the suit, such person is not a necessary and proper party to implead. The trial Court referring to the provisions of Order 1 Rule 10(2) of Code of Civil Procedure has observed that a party can be added to the suit, if he is a necessary party. Necessary party is one, without whose presence the suit cannot be effectively adjudicated.
12. In the present case, the proposed defendant is a subsequent purchaser, he cannot be termed as a necessary party. Suit can be effectively adjudicated without his presence against defendant Nos.1 and 2 whose father executed the agreement of sale in favour of mother of the plaintiff and admittedly, the proposed defendant was not impleaded as a party to the proceedings.
13. In the absence of proposed defendant, the trial Court can effectively adjudicate the matter on the basis of the agreement and on the basis of adverse possession claimed against defendant Nos.1 and 2 by the plaintiff. Admittedly, the application is not maintainable. Therefore, the proposed defendant is not a necessary party to the proceedings to enforce the agreement against the defendant Nos.1 and 2.
14. Admittedly, in the present case, respondent No.3 is represented who justifies the order of the trial Court. Therefore, if ultimately, vendor failed to succeed in the application, the proposed defendant No.3 cannot claim any equity.
15. The provisions of Section 52 of the Transfer of Property Act states about the doctrine of lis pendens. It is well settled that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a Court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provisions of Section 52 of the Transfer of Property Act does not indeed annul the conveyance or the transfer otherwise, but renders it subservient to the rights of the parties to a litigation.
16. The provisions of Order 1 Rule 10 of Code of Civil Procedure empowers the Court to add any party as a party at any stage of the proceedings if the person whose presence before the court is necessary or proper for effective adjudication of the issue involved in the suit.
17. It manifest that sub-rule (2) of Rule 10 of Code of Civil Procedure gives a wider discretion to the court to meet every case or defect of a party and to proceed with a person who is either a necessary party or a proper party whose presence in the court is essential for effective determination of the issues involved in the suit.
18. The plaintiff and defendants also represent that the presence of the proposed defendant is not necessary since the subsequent sale deed is not the issue before the court. Therefore, the trial Court is justified in rejecting the application for impleadment filed by the plaintiff.
19. So far as the reliance placed by the learned counsel for petitioner in the case of Thomson Press (India) Limited Vs. Nanak Builders and Investors Private Limited and Others stated supra, it was a case where on the basis of the sale deed executed by the defendants in favour of the subsequent purchaser during the pendency of the proceedings, an application was filed before the court to protect his interest, in the event, the petitioner succeeds in the suit and in those circumstances, the Hon’ble Supreme Court held that since vendor had not protected the interest of the subsequent purchaser, it is for the purchaser to defend the case under those circumstances. The Hon’ble Supreme Court allowed the application under Order 1 Rule 10 of Code of Civil Procedure.
20. Admittedly, in the present case, no prayer for amendment is sought and it is not the case of the subsequent purchaser that his interest has to be protected in the absence of clear cut pleadings in the suit. The judgment relied upon by the learned counsel has no application on the facts and circumstance of the present case. It is well settled principle of law that sale deeds or alienation will not affect the right of the plaintiff/petitioner and the person in whose favour the sale deed is executed during the pendency of the proceedings, has not come before the court to get impleaded as a party. Therefore, any alienation made during the pendency of the proceedings is always hit by Section 52 of the Transfer of Property Act.
21. For the aforesaid reasons, the impugned order passed by the Trial Court is just and proper. The petitioner has not made out any ground to interfere with the impugned order, in exercise of powers under Article 227 of the Constitution of India. Accordingly, writ petition is dismissed.
Sd/- JUDGE kcm MBM