IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.VEERAPPA WRIT PETITION NO. 15884 OF 2016 (GM-CPC) BETWEEN:
SRI. R. BABU REDDY SON OF LATE SRI. K.M. RAMAIAH REDDY, AGED ABOUT 58 YEARS, RESIDING AT NO. 73, 8TH BLOCK, KORAMANGALA, BENGALURU-560 095.
(BY SRI. V B SHIVAKUMAR, ADV.) … PETITIONER AND:
SRI. K. M. RAMAIAH REDDY SON OF LATE MUNIYAPPA, AGED ABOUT 95 YEARS, (SINCE DEAD BY HIS LR PETITIONER) 1. SMT. JAYAMMA WIFE OF LATE M. RAMAIAH REDDY, AGED ABOUT 75 YEARS, NO. 277/3, 9TH "A" MAIN, 2ND BLOCK, JAYANAGAR, BENGALURU-560 011. (SENIOR CITIZEN BENEFIT NOT CLAIMED) 2. SMT. RANI REDDY WIFE OF SRI. RAVIKUMAR, AGED ABOUT 50 YEARS, NO.277/3, 9TH "A" MAIN, 2ND BLOCK, JAYANAGAR, BENGALURU-560 011.
3. SMT. SHAMALA RAJAGOPAL WIFE OF SRI. S.N. RAJAGOPAL, AGED ABOUT 48 YEARS, NO.277/3, 9TH "A" MAIN, 2ND BLOCK, JAYANAGAR, BENGALURU-560 011.
4. SRI. M.R. RAJASEKHAR SON OF LATE H. RAMAIAH REDDY, AGED ABOUT 55 YEARS, RESIDING AT NO.310, 6TH MAIN, HAL II STAGE, BENGALURU-560 038.
5. SMT. KANTHAMMA WIFE OF SRI. N. CHANDRASHEKHAR, AGED ABOUT 53 YEARS, RESIDING AT NO. 53, 1ST LOOR, BASAPPA ROAD, SHANTHINAGAR, BENGALURU-560 027.
6. SMT. LAKSHMI DEVI WIFE OF SRI. VENKATASWAMY, AGED ABOUT 58 YEARS, RESIDING AT NO. 498, I FLOOR, 3RD "A" MAIN, 16TH CROSS, HSR LAYOUT, 6TH SECTOR, BENGALURU-560 034.
7. M/S. BREN CORPORATION A PROPRIETARY CONCERN, HAVING ITS OFFICE AT 3RD FLOOR, BALAVANA, PLOT NO. 61, 5TH "A" BLOCK, KORAMANGALA, BENGALURU-560 095, REPRESENTED BY ITS PROPRIETOR, SRI. J. BOOPESH REDDY.
… RESPONDENTS (BY SRI. R V S NAIK, SENIOR COUNSEL A/W SRI. NITIN PRASAD & VIDUS NAIR, ADVOCATES FOR R4&5; SRI. AJAY SHANKAR RAO, ADVOCATE FOR R7;
NOTICE TO R1,2,3& 6IS HELD SUFFICIENT V.C.O DATED 26.02.2018 ) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 02.03.2016 ON THE INTERLOCUTORY APPLICATION NO.23 FOR IMPLEADMENT IN O.S.NO.2383/2008 PASSED BY THE XIV ADDL.CITY CIVIL JUDGE AT BENGALURU, PENDING CONSIDERATION AND DISPOSAL OF THE ABOVE W.P. VIDE ANNEX-A. AND ETC., THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner herein who is a plaintiff in O.S.No.2383/2008 on the file of the XIV Additional City Civil Judge at Bengaluru, has filed the present writ petition against the rejection order dated 02.03.2016 passed on IA No.23 filed under Order I Rule 10(2) read with Section 151 of Code of Civil Procedure, 1908 (‘CPC’ for short).
2. The plaintiff filed the suit for declaration that he is having right, title, interest, ownership and possession and for mandatory injunction to direct the defendant Nos.
2 to 7 to hand over the possession of the property in question in his favour and also seeking perpetual injunction restraining the defendants, their agents or any person claiming through or under them from alienating, encumbering or creating third party rights in respect of the property morefully described in schedule to the plaint measuring 2 acres 20 guntas and for other reliefs.
3. During the pendency of the suit, an application came to be filed for amendment of plaint seeking to reduce the extent of the suit schedule land. The same came to be allowed on 19.04.2008 reducing the land extent from 2 acres 20 guntas to 2 acres. Consequently, the Written Statement has been filed by the defendants 1 to 7 resisting the same. The trial court after framing the issues directed the plaintiff to pay the court fee for the market value of the suit schedule property and that was the subject matter of the CRP No.18/2013 before this Court which came to be dismissed on 29.03.2013.
4. Thereafter, petitioner filed one more application to amend the plaint in respect of 2 acres 20 guntas. The said application came to be allowed on 05.03.2014. Subsequently, the petitioner filed application under Order XXXIX Rule 1 and 2 of CPC which came to be rejected by the trial court on 02.12.2014 directing the parties to expedite the matter without taking any unnecessary adjournments. Challenging the said order, petitioner- plaintiff filed MFA Nos.8357-58/2014 before this Court and the said MFAs came to be dismissed on 11.02.2015. Thereafter the petitioner filed the present application under Order I Rule 10(2) read with Section 151 CPC to implead the proposed impleading applicant as defendant No.8 – M/s BREN Corporation, a proprietary concern contending that during the pendency of the present suit defendant Nos. 1 to 7 who have entered into a registered Joint Development Agreement and also right to transfer of the property in favour of the proposed defendant. If the developer takes over the property, the entire suit would be rendered infructuous and that apart, third party rights will be created and therefore, the proposed 8th defendant is a necessary and proper party to resolve the issue pending between the parties. The said application came to be resisted by the defendants.
5. The trial court considering the application and objections by the impugned order dated 02.03.2016 rejected the said application. Hence the present writ petition.
6. I have heard the learned counsel for the parties to the lis.
7. Sri. V.B. Shivakumar, learned counsel appearing for the petitioner contends that the impugned order passed by the trial court rejecting the application filed is erroneous and contrary to the material on record. He further contends that admittedly, the respondent Nos. 2 to 7 entered into a Joint Development Agreement with the proposed respondent and therefore, he is a necessary and proper party. This aspect has not been considered by the trial court.
8. He further contends that the trial court erred in rejecting the application only on the ground that it is only the apprehension of the defendants that there are no documents to prove that respondent Nos. 2 to 7 have entered into Joint Development Agreement with the proposed defendnat. He would further contend that the respondents 2 to 7 having not disputed the Joint Development Agreement entered into by them, the proposed respondent would be a necessary party to the present proceedings resolve the issue pending between them. Therefore, he sought to allow writ petition.
9. Per contra, learned Senior Counsel Sri.
R.V.S.Naik appearing for respondent Nos. 5 to 7 justify the impugned order stating that the suit was filed in the year 2008, the petitioner is dragging the matter and not proceeding with the case and on two occasions, amendment application came to be filed one for reduction and another one for enlargement and ultimately, two applications were filed for injunction, ultimately, the CRP and MFAs before this Court came to be rejected. Therefore, he prays for dismissal of the writ petition.
10. Having heard the learned counsel for the parties, it is an undisputed fact that the plaintiff filed a suit for declaration permanent injunction and possession raising various contentions. The defendants filed written statement denying the averments made in the plaint and sought for dismissal of the suit. It is also not in dispute that earlier application for reduction of the suit schedule property came to be allowed and another application filed for seeking to increase the measurement to 02 acres 20 guntas as originally sought for came to be allowed on19.04.2014. It is also not in dispute that the application filed by the plaintiff was resisted by the defendants by filing objections. The trial court considering the application for impleading has held that the proposed defendant is not necessary and proper party to the suit mainly on the ground that basically the plaintiff has filed suit for declaration that he is the owner of suit schedule property, mandatory injunction to direct the defendant Nos. 2 to 7 to hand over the possession of the property in question in his favour and also for perpetual injunction restraining the defendants and their agents from alienating or creating third party rights in property in question.
11. It is the specific case of the petitioner - plaintiff that the defendant Nos. 2 to 7 are said to have executed a Joint Development Agreement in favour of the proposed defendants on 16.06.2016 in respect of the property in question and their apprehension that if the 8th defendant is permitted to be impleaded, the entire suit renders infructuous. Though the respondents have filed objections, have not disputed the fact that they have entered into a registered Joint Development Agreement with the proposed defendant if the proposed defendant is impleaded as a party, no prejudice will be caused to the defendants 2 to 7.
12. It is a well settled law that when substantial justice and technical considerations are pitted agaisnt each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done on technicalities. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
13. For the reasons stated above, the learned trial judge is not justified in rejecting the application for impleadment when the defendant Nos. 2 to 7 have admittedly entered Jointed Development Agreement with right of transfer of property in favour of 8th respondent.
14. In view of the above, the impugned order dated 02.03.2018 passed by the XIV Additional City Civil Judge at Bengaluru on I.A.No.23 in O.S.No.2383/2008 is hereby quashed. Writ petition is allowed. Permission is accorded to the petitioner to implead the proposed applicant as eighth respondent.
15. Since the suit is of the year 2008, the learned trial judge is directed to expedite the matter and dispose of the original suit within a period of six months from the date of receipt of copy of this order and parties are hereby directed to co-operate with the Court to dispose of the same and to pass appropriate orders in accordance with law.
16. At this stage, learned counsel for both the parties assure that they will cooperate for speedy disposal of the suit. The said submission is placed on record.
In view of the disposal of the main petition, IA No.1/2018 stands disposed off as having become infructuous.
Sd/- JUDGE Bsv