IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NOS.9836-9837 OF 2014 (GM-CPC) BETWEEN:
1. SRI.P.V.SRINIVAS, AGED ABOUT 51 YEARS, S/O LATE VENKATARAMANAPPA, 2. SRI.P.V.MURTHY, AGED ABOUT 47 YEARS, S/O LATE VENKATARAMANAPPA, BOTH ARE RESIDING AT NO.11, SDM LANE, SULTANPET CROSS, BENGALURU – 560 053.
…PETITIONERS (BY SRI. C.SHANKAR REDDY, ADVOCATE) AND:
1. SRI. UMER FAROOQUE UDYAWAR, AGED ABOUT 58 YEARS, SON OF ABDUL RAHIMAN UDYAWAR, RESIDING AT NO.954, II FLOOR, 27TH A MAIN ROAD, 9TH BLOCK, JAYANAGAR, BENGALURU – 560 009.
2. SMT.MEHAR BANU, AGED ABOUT 50 YEARS, WIFE OF UMER FAROOQUE UDYWAR, RESIDING AT NO.954, II FLOOR, 27TH A MAIN ROAD, 9TH BLOCK, JAYANAGAR, BENGALURU – 560 009.
3. SRI. MOHAMED IDRIS SIDDIQUE, AGED ABOUT 49 YEARS, SON OF ABDUL RAZACK SIDDIQUE, RESIDING AT VI CROSS ROAD, OLD GURAPPANAPALYA, BEHIND AMJED BUILDING, BANNERGHATTA ROAD CROSS, BENGALURU – 560 081.
4. SMT BIBI ASMA, AGED ABOUT 39 YEARS, WIFE OF MOHAMED IDRIS SIDDIQUE, RESIDING AT VI CROSS ROAD, OLD GURAPPANAPALYA, BEHIND AMJED BUILDING, BANNERGHATTA ROAD CROSS, BENGALURU – 560 081.
5. SRI. ABDUL RAHAMAN SIDDIQUE, AGED ABOUT 47 YEARS, SON OF MEERAN MOHIDDIN SIDDIQUE RESIDING AT NO.90, ARASIKERE, BHATKAL, UTTARA KANNADA DISTRICT.
6. SMT. VIQUARUNNISSA, AGED ABOUT 37 YEARS, WIFE OF ABDUL RAHIMAN SIDDIQUE, RESIDING AT NO.90, ARASIKERE, BHATKAL, UTTARA KANNADA DISTRICT.
7. SMT. HOOR BANO, AGED ABOUT 41 YEARS, WIFE OF LATE ABDUL JALEEL DABAPU, RESIDING AT NO.1727/124, 39TH CROSS, ‘A’ MAIN ROAD, 9TH BLOCK EAST, JAYANAGAR, BENGALURU – 560 069.
BY THEIR GENERAL POWER OF ATTORNEY HOLDER.
SRI. ABDUL RAZAK, AGED ABOUT 53 YEARS, SON OF LATE ABDUL KALEEM SHERIFF, RESIDING AT NO.6/12, 1ST CROSS, 1ST D.V.BLOCK, R.T.NAGAR, BANGALORE – 560 032.
8. SRI. ABDUL JALEEL DABAPU, AGED ABOUT 56 YEARS, SON OF SRI. SHEIK FARID DABAPU, RESIDING AT NO.1727/124, 39TH CROSS, ‘A’ MAIN, 9TH BLOCK EAST, JAYANAGAR, BENGALURU – 560 069.
9. SRI. I. SYED SHAHZADHA, AGED ABOUT 56 YEARS, SON OF LATE ABDUL LATHEEF, 10. SMT. SHAHATAZ BEGUM, AGED ABOUT 51 YEARS, WIFE OF SRI.I. SYED SHAHZADHA, RESPONDENTS 9 AND 10 ARE RESIDING AT S.N.M. SCHOOL ROAD, ANDERSONPET, K.G.F. – 560 113.
KOLAR DISTRICT.
11. M/S. MOOKAMBIKA ENTERPRISES, NO.334/28, 14TH CROSS, 2ND BLOCK, JAYANAGAR, BANGALORE – 560 011.
A PARTNERSHIP FIRM, REPRESENTED BY ITS PARTNERS.
a. SRI. RAVI S SHETTY, AGED ABOUT 50 YEARS, SON OF SRI.SUNDAR SHETTY, RESIDING AT NITYANANDA NIVAS, R.A.ROAD, GOREGOAN EAST, MUMBAI – 63.
b. SMT. BEENA V SHETTY, WIFE OF K.VASUDEVA SHETTY, AGED ABOUT 39 YEARS, RESIDING AT DEVI PRASAD, ULIYARAGOLI, KAUP, UDUPI – 574 106.
(BY SRI.B.G.SRIRAM, ADVOCATE FOR R7 ... RESPONDENTS RETIRED AS PER ORDER DATED 10.01.2019 (I.E. TODAY); SRI. G.MANIVANNAN, ADVOCATE FOR R9 AND R10;
SRI. RAVI L VAIDYA, ADVOCATE FOR R11(a) AND (b); R5, R6 – SERVED AND UNREPRESENTED VIDE ORDER DATED 01.08.2016;
NOTICE TO R1 – R4 AND R8 ARE HELD SUFFICIENT) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 29.11.2013 VIDE ANNEXURE – R MADE IN I.A.NO.VIII IN OS.NO.5735/05, ON THE FILE OF THE I ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY, BANGALORE & REJECT THE SAID APPLICATION AND ETC., THESE WRIT PETITIONS COMING ON FOR PRL.HEARING ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitions are take up for hearing with the consent of the parties. Same is heard finally. Mr. Sriram B. G., learned counsel appearing for respondent No.7, is permitted to retire from the case.
2. The petitioners have assailed the validity of the order dated 29.11.2013 passed by the trial Court by which an application filed by the respondent No.11 for its impleadment as plaintiff No.8 in the suit, has been allowed.
3. The facts giving rise to filing of these petitions briefly stated are that the plaintiffs 1 to 7 had filed the suit seeking the relief of declaration of title. During the pendency of the suit, they sold the suit property in favour of the respondent No.11 by a registered sale deed. Thereupon, respondent No.11 filed an application under Order I Rule 10 of the Code of Civil Procedure, 1908, on the ground that during the pendency of the suit, the suit property has been assigned in its favour by virtue of a sale deed. The aforesaid application has been allowed by the trial Court. In the aforesaid factual background, this petition has been filed.
4. The learned counsel for the petitioners submitted that the trial Court ought to have appreciated that the respondent No.11 had purchased the property in violation of the order of injunction and therefore he could not be impleaded in the suit. It is further submitted that the aforesaid fact was brought to the notice of the trial Court. However, the trial Court did not take note of the same. He further submitted that after its impleadment, the respondent No.11 has filed a memo for deletion of the name of the petitioners from the suit, as well as for recording the compromise arrived at between the parties. Therefore, the application was filed in collusion with plaintiffs 1 to 7.
5. In support of his submission, learned counsel for the petitioners has placed on record the decisions of the Supreme Court in the case of ‘SURJIT SINGH & ORS. VS. HARBANS SINGH & ORS. (1995) 6 SCC 50’, AND ‘VIDUR IMPEX & TRADERS PVT. LTD. & ORS. VS. TOSH Apartments Pvt. Ltd. & Ors. c/w Bhagwati Developers Pvt. Ltd. Vs. Tosh Apartments Pvt. Ltd.’, (2012) 8 SCC 384.
6. On the other hand, learned counsel for the plaintiffs 1 to 7 has submitted that they have no objection to allow the application filed by the respondent No.11. It is further submitted that the petitioners claim interest in respect of the suit property by virtue of an agreement which is earlier in point of time and the petitioner has already filed a suit seeking the relief of specific performance of the contract and therefore his interest is fully protected. It is further submitted that the order passed by the trial Court neither suffers from any jurisdictional infirmity apparent on the face of the record, nor any error warranting interference of this Court in exercise of its power under Article 227 of the Constitution of India.
7. I have considered the submissions made by the learned counsel for the parties and perused the records.
8. Admittedly, respondent No.11 has purchased the property during the pendency of the suit. Thus, respondent No.11 is vitally interested in the result of the litigation, namely the suit for declaration of the title. From the very perusal of the impugned order it is evident that the petitioners have not produced the copy of the plaint or copy of the I.A. filed in O.S.No.16659/2005 to show the property involved in the suit. In the absence of particulars of the property involved in the suit in which an injunction was granted, the trial Court has held that it is not possible to hold that respondent No.11 has purchased the property in violation of the order of injunction.
9. For the aforementioned reasons, the decisions relied upon by the learned counsel for the petitioner in the case of ‘SURJIT SINGH & ORS. VS. HARBANS SINGH & Ors.’ and ‘Vidur Impex & Traders Pvt. Ltd. & Ors. vs. Tosh Apartments Pvt. Ltd. & Ors. c/w Bhagwati Developers Pvt. Ltd. Vs. Tosh Apartments Pvt. Ltd.’ (supra),has no application to the facts of the case.
10. The trial Court while dealing with the application, has held that the interest in the property has been assigned to respondent No.11 by virtue of a sale deed and therefore he is a necessary party to the lis. It is also pertinent to mention here that impleadment of respondent No.11 has not been opposed by plaintiff Nos.1 to 7. The discretion to deal with the prayer for impleadment has been exercised on sound process of law by the trial Court. The impugned order neither suffers from any jurisdictional infirmity nor any error apparent on the face of the record warranting interference of this Court in exercise of powers under Article 227 of the Constitution of India. Even otherwise it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution cannot be exercised to correct all errors of a judgment of a Court acting within its limitation. It can be exercised where the orders is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. [See: ‘JAI SINGH AND OTHERS VS. M.C.D. AND OTHERS’, (2010) 9 SCC 385, ‘SHALINI SHYAM SHETTY VS. RAJENDRA SHANKAR PATIL’, (2010) 8 SCC 329 and ‘RADHE SHYAM AND ANOTHER VS. CHABBI NATH AND OTHERS’, (2015) 5 SCC 423]. In the instant case, the impugned order is not passed in violation of fundamental principles of law and justice warranting interference of this Court under Article 227 of the Constitution.
11. In the result, I do not find any merit in the writ petitions. The same fails and are hereby dismissed.
Sd/- JUDGE RD