IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST 2017 BEFORE THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA WRIT PETITION No.9041 OF 2016 (GM-CPC) BETWEEN:
MR.P.SHANTHAKUMAR, S/O.LATE PANNEER SELVAM, AGED ABOUT 36 YEARS, R/AT NO.23, 1ST FLOOR, 2ND CROSS, SAGAR LAYOUT, DEVARACHIKKANAHALLI, IIMB POST, B.G.ROAD, BENGALURU-560076. …PETITIONER. (BY SRI.K.A.PRAKASH, ADVOCATE) AND:
1. MR.V.MUNI REDDY, SINCE DEAD BY LRS, MR.M.VIJAYA BHASKAR, AGED ABOUT 46 YEARS, S/O.LATE V.MUNI REDDY, R/AT NO.2234 AND 2235, 9TH MAIN, ‘E’ BLOCK, RAJAJINAGAR 2ND STAGE, BENGALURU-560010.
2. MR.DIWAKAR RAMBUJHAVAN TIWARI, AGED ABOUT 69 YEARS, S/O.MR.RAMBUJHAVAN TIWARI, R/AT NO.1/1, 5TH CROSS, SUDAMANAGAR, BENGALURU-560027.
3. MR.B.R.SATYANARAYANA, SINCE DEAD BY LRS (a) SMT.B.GAYATHRI DEVI, AGED ABOUT 55 YEARS, W/O.LATE B.R.SATYANARAYANA (b) SMT.CHAYADEVI, AGED ABOUT 29 YEARS, D/O.LATE B.R.SATYANARAYANA (c) SRI.B.S.VIJAYA BHASKAR, AGED ABOUT 27 YEARS, S/O.LATE B.R.SATYANARAYANA, ALL ARE R/AT NO.39, ‘CHAMUNDI’, 5TH MAIN, JAYANAGAR, 5TH BLOCK, BENGALURU-560011.
4. MR.V.NARAYANA REDDY, SINCE DEAD BY LRS (a) SMT.N.HEMA @ HEMAVATHI, AGED ABOUT 50 YEARS, D/O.LATE V.NARAYANA REDDY, W/O.LATE H.M.CHANDRA REDDY, R/AT HALANAYAKANAHALLI, CARMELARAM POST, SARJAPURA ROAD, BENGALURU-560035.
(b) SMT.N.ANURADHA, AGED ABOUT 46 YEARS, D/O.LATE V.NARAYANA REDDY, W/O.MR.S.NARAYAN, R/AT NO.1/2, NEW NO.617, VEERAPPA REDDY LANE, ARAKERE VILLAGE, BANERUGHATTA MAIN ROAD, BENGALURU-560076.
(c) SMT.N.ANITHA, AGED ABOUT 44 YEARS, D/O.LATE V.NARAYANA REDDY, W/O.MR.ASHOK KUMAR, R/AT NO.10/6, YELLAPPA REDDY LAYOUT, OPP: OXFORD PUBLIC SCHOOL, ARAKERE VILLAGE, BANERUGHATTA ROAD, BENGALURU-560076. …RESPONDENTS.
(BY SRI.G.PAPI REDDY, ADVOCATE FOR R1 V/O DT.14.12.16 NOTICE TO R2, R3(a-c), R4 (a-c) ARE HELD SUFFICIENT R2, R3 (a to c) AND R4 (a to c) ARE SERVED) ******* THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA WITH A PRAYER TO QUASH THE ORDER DTD.3.2.2016 PASSED BY THE LEARNED X ADDL. CITY CIVIL AND SESSIONS JUDGE AT BENGALURU ON I.A.NO.17 IN O.S.NO.1549/2005 FILED BY THE PETITIONER UNDER SECTION 151 OF CODE OF CIVIL PROCEDURE (ANNEX-E).
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN B-GROUP THIS DAY, THE COURT MADE THE FOLLOWING: -
ORDER Though the writ petition is listed for preliminary hearing in ‘B’ Group, with consent of learned counsel on both sides, it is heard finally.
2. The petitioner herein has been impleaded as defendant No.4 in O.S.No.1549/2005, which is pending on the file of the Court of X Addl. City Civil and Sessions Judge at Bengaluru. That suit has been filed by the 1st respondent – plaintiff seeking the relief of declaration that he is the absolute owner of the suit schedule property and for a consequential relief of mandatory injunction directing the defendants to remove the unauthorized foundation laid in the suit schedule property and to deliver possession of the said property. As already noted, during the pendency of the suit, the suit schedule property was sold by defendant No.1 to defendant No.4. Petitioner herein on coming to know of the said fact filed an application under Order I Rule 10 of the Code of Civil Procedure, 1908 (CPC), seeking impleadment of the purchaser of the suit schedule property i.e., the petitioner herein and subsequent to his impleadment, he filed his written statement. He filed an application seeking permission to re-open the case to recall PW.2, so as to cross-examine him and also to recall CW.1, the Court Commissioner so as to cross-examine the said persons. By impugned order dated 3.2.2016, the said application has been dismissed. Being aggrieved defendant No.4 in the suit, has preferred this writ petition.
3. I have heard learned counsel appearing for petitioner and learned counsel appearing for respondent No.1. Notice to respondent Nos.3 (a to c) and respondent Nos.4(a to c) are held sufficient. The other respondents are served and unrepresented. I have perused the material on record.
4. It is noted that the petitioner herein has purchased the suit schedule property during the pendency of the suit. He has been impleaded in the suit in substance under Order XXII Rule 10 of CPC, though the application was filed by the plaintiff under Order I Rule 10 of CPC. When once a party is impleaded to the suit on the basis of creation or devolution of any interest, assignment etc., during the pendency of the suit, by an application filed for impleadment, such a party is entitled to participate as a proper party in the suit, as if he was impleaded in the first instance as he has interest in the subject matter of the suit like all the other defendants, as in the instant case, from whom he has purchased the suit property. Merely because his vendor has already cross-examined PW.2 and CW.1, it would not cause any impediment for defendant No.4 / petitioner herein to also cross-examine the said witnesses. He has every right to do so, being arrayed as defendant No.4 and having been permitted to file his written statement. In addition, he is entitled to let in his independent evidence in the suit. Fourth defendant has to protect his right, title and interest in respect of the suit schedule property. Therefore, the trial Court ought to have allowed the application filed by the fourth defendant / petitioner herein and permitted him to cross-examine PW.2 and CW.1, though the said witnesses might have been cross-examined by the vendor of the petitioner.
5. In the circumstances, the impugned order dated 3.2.2016 is quashed. The application filed by the petitioner is allowed. The petitioner is permitted to cross-examine PW.2 and CW.1. He is also permitted to let in independent evidence in the matter. The trial Court is directed to dispose of the suit in accordance with law.
6. As the suit is of the year 2005, all the parties to the suit are directed to co-operate with the trial Court for expeditious disposal of the suit.
7. Interim order of stay granted by this Court dated 23.08.2017 stands vacated.
Sd/- JUDGE NG* CT: RG