IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA W.P.NOs.55125/2016 AND 59133/2016 (GM-CPC) BETWEEN:
1. SRI. V. THIPPESWAMY S/O LATE VEERANNA, AGE 55 YEARS, 2. SMT. H.ANNAPURNA W/O V.THIPPESWAMY AGE 50 YEARS, 3. SRI. T. RANJIT KUMAR S/O V.THIPPESWAMY AGE 23 YEARS, 4. SRI. RAKESH KUMAR S/O V.THIPPESWAMY AGE 21 YEARS, ALL ARE RESIDING AT: ANNAPOORNA NILAYA, 5TH CROSS, J.C.R.EXTENSION, CHITRADURGA-577522 (By Sri.K P BHUVAN, ADV.,) AND:
1. SRI. MOHAMED RAHAMATHULLA S/O LATE ABDUL AZEEZ SAB, ... PETITIONERS AGE 57 YEARS, R/O RAMDAS COMPOUND, GOPALAPURA ROAD, CHITRADURGA-577522 2. SRI. N. VASANTHAGUPTA S/O N. RAJAGOPAL SHETTY, AGE 40 YEARS, 3. SMT.N.V.SANDHYA GUPTA W/O N. VASANTHA GUPTA AGE 33 YEARS, RESPONDENTS-2 AND 3 ARE R/AT: 4TH BLOCK, KANNIKA ROAD, MEDEHALLI ROAD, CHITRADURGA CITY-577522 ... RESPONDENTS (BY SRI. MADHUKAR NADIG, ADV., FOR R2 & R3, NOTICE TO R1 DISPENSED WITH VIDE ORDER DATED 20.09.2017) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE COMMON ORDER ON I.A.NOS.3 & 4 IN O.S.NO.148/2015 DATED 20.06.2016 PASSED BY THE LEARNED SR.CIVIL JUDGE, CHITRADURGA VIDE ANNEX-J.
THESE WRIT PETITIONS COMING ON FOR PRLY. HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners herein are the plaintiffs in O.S.No.148/2015, which is pending on the file of the Principal Senior Civil Judge and CJM at Chitradurga. That suit has been filed by them seeking the relief of specific performance of an agreement of reconveyance dated 08.01.2013. During the pendency of the suit, petitioners became aware of the fact that the suit schedule property has been sold by respondent No.1 (defendant No.1 in the suit) to defendants-2 and 3 herein. Therefore, two applications were filed by the petitioners herein before the trial Court. The first application was filed under Order I Rule 10(2) of the Code of Civil Procedure, 1908 (for short ‘CPC) to array respondents-2 and 3 herein as defendants in the suit and the second application was filed under Order VI Rule 17 read with Section 151 of CPC seeking amendment of the plaint. By the impugned order dated 20.06.2016, both the applications have been rejected. Being aggrieved, the plaintiffs have preferred these writ petitions.
2. I have heard learned counsel for the petitioners and learned counsel for respondents-2 and 3 and perused the material on record. Notice to respondent No.1 has been dispensed with vide order dated 20.09.2017.
3. Having regard to the judgment of the Hon’ble Supreme Court in the case of Baluram vs. P.Chellathangam and others (AIR 2015 SC 1264) as well as in the case of Kasturi vs. Iyyamperumal and Others (2005 (6) SCC 733), in a suit for specific performance of an agreement, a person who has purchased the suit schedule property whether before filing of the suit or after filing of the suit, is a necessary party to such a suit. The Hon’ble Supreme Court has held that a necessary party is a person, who ought to have been joined as a party and in whose absence no decree can be passed by the Court. If a necessary party is not included, the suit itself is liable to be dismissed.
4. In a suit for specific performance of an agreement, the necessary parties are: i) parties to the contract, which is sought to be enforced or if they are dead, their legal representatives and ii) transferee of the property, which is the subject matter of the contract. A person who has direct interest in the subject matter of the suit of an agreement of sale may be impleaded as a party or his legal representatives under Order I Rule 10(2) of the CPC. That a purchaser of the suit property subsequent to the sale agreement would be a necessary party, as he would be affected if he had purchased with or without notice of the contract, but a person claiming an independent title and possession adversely to the title of vendor is not a necessary party, since an effective decree can be passed in his absence and no relief can be claimed against such a party.
5. In the circumstances, the trial Court was not right in dismissing the application filed under Order I Rule 10(2) of CPC and consequently, the application seeking amendment of the plaint. The impugned order is, therefore, quashed. The applications filed by the petitioners/plaintiffs in the suit are allowed. Respondents-2 and 3 are directed to be impleaded as defendants-2 and 3 in the suit. The petitioners are permitted to amend the plaint. Respondents-2 and 3 are permitted to file their written statement after the amended plaint is filed.
Writ petitions are allowed in the aforesaid terms.
No costs.
Sd/-
JUDGE TL