IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.23355 OF 2019 (GM-CPC) BETWEEN:
SRI P.N.JANARDHAN S/O. P.M. NARAYANAGOWDA AGED ABOUT 43 YEARS RESIDING AT HALESOMARASANAHALLI VILLAGE, HUTHUR HOBLI KOLAR TALUK KOLAR DISTRICT – 560 101 ... PETITIONER (BY SRI S. VISWESWARAIAH, ADVOCATE) AND:
1. SRI CHANDRAPPA S/O. LATE YALAGHIRIYAPPA AGED ABOUT 48 YEARS RESIDING AT GANGAPURA VILLAGE HUTHUR HOBLI KOLAR TALUK KOLAR DISTRICT – 560 101 2. SRI AYYAPPA @ JAYAPPA S/O. LATE NARAYANAPPA AGED ABOUT 63 YEARS 3. SMT. KAMALAMMA W/O. JAYAPPA @ AYYAPPA AGED ABOUT 56 YEARS 4. SRI. RAVINDRA BABU S/O. JAYAPPA @ AYYAPPA AGED ABOUT 35 YEARS 5. SRI. VENKATESH S/O. JAYAPPA @ AYYAPPA AGED ABOUT 29 YEARS NOS.2 TO 5 ARE RESIDING AT SERESANDRA VILLAGE SHAPUR POST HUTHOOR HOBLI KOLAR TALUK KOLAR DISTRICT – 560 101 ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 26.02.2019 (ANNEXURE-A) PASSED BY THE COURT OF THE III ADDITIONAL SENIOR CIVIL JUDGE & JMFC AT KOLAR ON I.A.NO.4 IN OS.NO.81/2018 AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner whose application for impleadment is rejected vide impugned order in O.S.No.81/2018 is grieving against the same by invoking the writ jurisdiction of this Court.
2. The learned counsel for the petitioner banking upon the decision of the Apex Court in the case of BALURAM VS. P.CHELLATHANGAM & ORS in Civil Appeal Nos.10940-10941/2014, disposed off on 10.12.2014 submits that a person who holds in the agreement to buy the property is a necessary party in terms of paras 19 and 22 of the said decision, which reads as under:
“19. Referring to suits for specific performance, this Court in Kasturi [(2005) 6 SCC 733], held that the following persons are to be considered as necessary parties: (i) the parties to the contract which is sought to be enforced or their legal representatives; (ii) a transferee of the property which is the subject-matter of the contract. This Court also explained that a person who has a direct interest in the subject-matter of the suit for specific performance of an agreement of sale may be impleaded as a proper party on his application under Order 1 Rule 10 CPC. This Court concluded that a purchaser of the suit property subsequent to the suit agreement would be a necessary party as he would be affected if he had purchased it with or without notice of the contract, but a person who claims a title adverse to that of the defendant vendor will not be a necessary party.
22. Let us consider the scope and ambit of Order 1 Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice.”
3. The Apex Court at para – 19 specifies two classes of persons who arguably can be the necessary parties into which the petitioner does not fall and even para-15 cannot be banked upon since it deals with a case in which trust property was involved. Section 54 of the Transfer of Property Act in so many words states that an agreement to sell per se does not create vested interest in the subject property; therefore, the petitioner is neither a necessary nor a proper party as rightly held by the Court below.
In the above circumstances, no indulgence is granted in this writ petition. However, it is open to the petitioner to file a proper suit or take up other proceedings, if he so chooses, in accordance with law.
It is open to the petitioner to take benefit of the alleged admission of the defendant made in his Written Statement filed in the subject suit, in accordance with law.
Sd/- JUDGE KTY