IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.7318/2019 & 9209-9210/2019(GM-CPC) BETWEEN:
1. SMT. SUGUNA W/O KESHAVA, AGED 33 YEARS, 2. CHI. RAHUL K S/O KESHAVA, AGED 15 YEARS, BEING A MINOR, REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN THE PETITIONER NO.1 HEREIN BOTH ARE R/O NO.30, 2ND MAIN, DATTATHREYANAGARA, HOSAKERAHALLI, BANGALORE-560085.
(BY SRI MALLA REDDY B. V., ADVOCATE) AND:
1. KESHAVA S/O LATE D. T. DEVARAJ, AGED 43 YEARS, 2. D MANJUNATHA S/O LATE D T DEVARAJ, AGED 46 YEARS, 3. D MURTHY S/O LATE D T DEVARAJ, AGED 39 YEARS, ... PETITIONERS 4. D SATHISH S/O LATE D T DEVARAJ, AGED 37 YEARS, RESPONDENTS No.1 TO 4 ARE R/O KALLUR VILLAGE, KASABA HOBLI, SHIVAMOGGA TALUK-577201.
5. MOHAMMED HIDAYATH, S/O MOHAMMED BASHA, AGED ABOUT 32 YEARS, R/AT OPP AMRUTHA RICE MILL, OLD MANDLI, N.T ROAD, SHIVAMOGGA -577201.
... RESPONDENTS … THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 28.11.2018 (ANNEXURE-C) PASSED ON I.A.NO.III FILED UNDER ORDER I RULE 10 READ WITH SECTION 151 OF CPC IN O.S.NO.219/2017 ON THE FILE OF THE III ADDL. CIVIL JUDGE & JMFC COURT, SHIVAMOGGA, CONSEQUENLTY, PERMIT THE PETITIONERS TO IMPLEAD THE RESPONDENT-5 HEREIN AS PARTY DEFENDANT BEFORE THE TRIAL COURT, CONSEQUENLTY;
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The plaintiffs have filed the present writ petitions against the order dated 28th November, 2018 passed on I.A.III made in O.S.No.219/2017 dismissing the application filed by them under Order 1 Rule 10 r/w Section 151 of the Code of Civil Procedure.
2. The plaintiffs filed a suit for partition and separate possession in respect of the suit schedule properties contending that the suit schedule properties are the joint family properties of plaintiffs and defendants. Respondent Nos.1, 2 and 4, who are defendant Nos.1, 2 and 4 though were represented through their Counsel did not file their written statement and respondent No.3-defendant No.3 was placed exparte. During the course of the proceedings, the 5th defendant-respondent No.5 filed I.A.III under Order I Rule 10 r/w Section 151 of the Code of Civil Procedure to implead the proposed defendant No.5- respondent No.5. The trial Court by the impugned order dated 28.11.2018 rejected the said application. Thereafter, the petitioners-plaintiffs filed an application – I.A.IV under Order 47 Rule 1 r/w Section 151 of the Code of Civil Procedure to review the order dated 28.11.2018. The said application was also rejected. Aggrieved by the said order, the present writ petitions are filed by the petitioners-plaintiffs.
3. I have heard the learned Counsel for the petitioners.
4. Sri Malla Reddy, learned Counsel for the petitioners-plaintiffs contended that during the pendency of the proceedings, defendant Nos.1 and 2 executed a registered Agreement of Sale in favour of the proposed defendant No.5 and therefore, defendant No.5 is a necessary and proper party to implead him in the suit. He further contended that the trial Court without considering the material on record proceeded to reject the application which would lead to multiplicity of proceedings. Therefore, he submits that as there is an Agreement of Sale entered into between defendant Nos.1 and 2 and proposed defendant No.5, the proposed defendant No.5-respondent No.5 is a necessary and property party. Hence, he sought to allow the writ petitions.
5. Having heard the learned Counsel for the petitioners, it is not in dispute that the plaintiffs filed a suit for partition and separate possession in respect of the suit schedule properties. During the pendency of the proceedings, it is the apprehension of the plaintiffs that the defendants have undertaken to alienate the suit schedule properties in favour of the impleading applicant. In case the plaintiffs succeed in the suit, it will lead to multiplicity of proceedings and therefore, the proposed defendant No.5 is a necessary and proper party to the suit. The trial Court considering the application and objections has recorded a finding that the plaintiffs have filed this application for impleading on the ground that the proposed defendant is going to purchase the suit schedule properties and the proposed defendant No.5 has not purchased the suit schedule properties. At the first instance when the suit was filed, exparte order of temporary injunction was granted restraining the defendants from alienating the suit schedule properties, which has not been extended. With regard to the contentions urged in the application, plaintiffs have not produced any document to show the negotiation between defendant No.1 and the proposed defendant No.5. Therefore, the trial Court held that the reason assigned by the plaintiffs in the application is not a ground to implead defendant No.5 Hence the application was rejected since defendant No.5 was neither necessary nor proper party.
6. The learned Counsel for the petitioners contended that at the time of filing of the application, the registered Agreement of Sale dated 9.3.3017 was not produced before the trial Court and therefore, the learned Judge has recorded a finding that the plaintiffs have not produced any documents. Even after assuming that the registered Agreement of Sale said to have been executed by the proposed defendant is culminated into Sale Deed, still it is hit by the provisions of Section 52 of the Transfer of Property Act. Ultimately, if the plaintiffs succeed in the suit for partition, the subsequent purchaser cannot claim any equity. It is not the case of the Agreement Holder that the defendant colluding with the plaintiffs will deprive their rights and the applicant- Agreement Holder has not filed any application for impleading. It is only the plaintiffs, who have filed the application on apprehension.
7. In view of the above, the impugned order passed by the trial Court is just and proper. The petitioners have not made out any ground to interfere with the impugned order in exercise of powers under Article 227 of the Constitution of India.
Accordingly, writ petitions are dismissed.
Sd/- Judge Nsu/-