IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JULY 2017 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.38409/2016 (GM-CPC) BETWEEN:
SMT.S.VIJAYALAKSHMI, WO. SHIVARAJ, AGED ABOUT 44 YEARS, RESIDING AT NO.139/3, KACHARAKANAHALLI, YASEEN NAGAR, BENGALURU – 560 084.
... PETITIONER (BY SRI.SYED ZAHAR FOR SRI.K.G.DEVARAJAIAH, ADVs.) AND:
1. L.CHANDRASHEKAR, S/O. LATE T.LAKSHMINARAYAN, AGED ABOUT 61 YEARS.
2. SMT.N.DHANALAKSHMI, W/O L.CHANDRASHEKAR, AGED ABOUT 53 YEARS.
3. C.SURUT KURAAR, S/O. L.CHANDRASHEKAR, AGED ABOUT 45 YEARS.
4. SMT.B.DIVYASRI, W/O C.SUNIL KUMAR, AGED ABOUT 24 YEARS.
5. SMT.C.SUSHMA, S/O. L.CHANDRASHEKAR, AGED ABOUT 30 YEARS.
6. SRI.L.MANJUNATH, S/O. LATE LAKSHMINAYARAN, AGED ABOUT 52 YEARS.
7. SMT.A.SUMITHRA, W/O. L.MANJUNATH, AGED ABOUT 46 YEARS.
8. SMT.M.LAVANYA, D/O. L.MANJUNATH, AGED ABOUT 21 YEARS.
9. KUM HARSHITHA, D/O L.MANJUNATH, AGED ABOUT 10 YEARS.
MINOR REPRESENTED BY HERE NATURAL GUARDIAN AND FATHER L.MANJUNATH.
ALL ARE RESIDING AT NO.126/A, KARIYANAPALYA, ST.THOMAS TOWN, BENGALURU-560 084.
10. SRI.G.V.PAVAN KUMAR, S/O. SRI.R.VISHWANATH, AGED ABOUT 36 YEARS, RESIDIGN AT 1-205, DSR SUNSHINE APARTMENT, KRISHNA REDDY LAYOUT, 1ST CROSS, BANASAWADI, BENGALURU – 560 043.
… RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA WITH A PRAYER TO SET ASIDE THE ORDER DATED 15.04.2016 PASSED BY THE VII ADDL. CITY CIVIL JUDGE FOR DISMISSING OF I.A.NO.II IN O.S.NO.5182/2014 VIDE ANNEXURE-F.
THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The plaintiff filed the present writ petition against the order dated 15.04.2016 on I.A.No.2 made in O.S.No.8182/2014 on the file of the VII Addl. City Civil and Sessions Judge, Bengaluru dismissing the application filed by the plaintiff under Order 1, Rule 10(2) r/w. Section 151 of Civil Procedure Code to implead Sri G.V.Pavan Kumar as defendant No.10 in the suit.
2. The plaintiff filed the suit in O.S.No.8182/2014 for permanent injunction against the defendants contending that she is the absolute owner in possession of the suit schedule property, morefully described in schedule. The defendants having no manner of right, title and interest in the suit schedule property are interfering with the possession.
3. The plaintiff filed an application in I.A.No.2 for impleading the proposed G.V.Pavan Kumar as defendant No.10 contending that defendants No.1 to 9 have entered into a registered agreement of sale with the proposed defendant No.10. Therefore, he is necessary and proper party to be impleaded in the suit. The trial Court, by the impugned order dated 15.04.2016 dismissed the application. Hence, the present writ petition is filed.
4. Though defendants No.1 to 9 are served with notice, they have not entered appearance and did not file any objections to the application filed by the plaintiff to implead the proposed defendant No.10.
5. I have heard the learned counsel appearing for the petitioner.
6. Shri. Syed Zahar, learned counsel for the petitioner vehemently contended that the impugned order passed by the trial Court, rejecting the application filed by the plaintiff to implead the proposed defendant is erroneous and contrary to material on record. He further contended that, the plaintiff filed the application to implead proposed defendant since, defendants No.1 to 9 executed an agreement of sale in favour of the proposed defendant No.10. Therefore, he is necessary and proper party to the suit. The same has not been considered by the trial Court and therefore, he sought to set aside the impugned order passed by the trial Court by allowing the writ petition.
7. Having heard the learned counsel for the petitioner, it is not in dispute that the plaintiff filed suit for permanent injunction contending that she is the absolute owner in possession of the suit schedule property and defendants No.1 to 9 are interfering with her possession. In the application for impleading filed by the plaintiff, it is only stated that defendants No.1 to 9 have entered into agreement with proposed defendant No.10.
8. It is not the case of the plaintiff that, on the basis of the agreement, the 10th defendant is also interfering with her possession. The suit in O.S.No.8182/2014 is filed only for injunction alleging that, defendants No.1 to 9 are interfering with her possession.
9. The affidavit filed in support of the application for impleading proposed defendant No.10 does not disclose the date of the agreement. But, Annexure-D produced along with the present writ petition indicates that the agreement is said to have been executed by defendants No.1 to 9 in favour of proposed defendant No.10 on 23.06.2014.
10. When a query is made by the Court to the learned counsel for the petitioner with regard to agreement, the learned counsel is not in a position to state before this Court, whether the proposed defendant No.10 has filed the suit for specific performance to enforce the agreement dated 23.06.2014 against defendants No.1 to 9. In the absence of enforcement of the agreement and in the absence of any suit filed, the proposed impleading defendant is not necessary and proper party in the suit for injunction filed by the plaintiff.
11. The trial Court, considering the entire material on record, recorded a finding that, the suit filed for permanent injunction is against defendants No.1 to 9 and the very allegation of the plaintiff in the plaint is that the cause of action arose on 20.10.2014. The presence of proposed defendant is not whispered anywhere in the application and moreover, the alleged agreement of sale dated 23.06.2014 whereas, the suit was filed on 28.10.2014.
12. Taking into consideration all these aspects and having regard to the facts and circumstances, absolutely, there is no merit in the application. Hence, the trial Court has rightly rejected the application and the same is in accordance with law. The petitioner has not made out any ground to interfere with the impugned order passed by the trial Court in exercise of powers under Article 227 of the Constitution of India.
Accordingly, the writ petition is dismissed.
Sd/- JUDGE VM