IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JULY 2017 BEFORE THE HON’BLE MR.JUSTICE JAYANT PATEL WRIT PETITION NO.31675/2017 (GM-CPC) BETWEEN:
VDB CELADON APARTMENT OWNERS ASSOCIATION (REGD) HAVING ITS OFFICE AT NO 23/3, 23/4, 26/1 SHIVANAHALLI, JAKKUR MAIN ROAD, YELAHANKA, BANGALORE - 560064 REPRESENTED BY ITS PRESIDENT ...PETITIONER (BY SRI.MUJTABA H, ADVOCATE) AND:
1. SRI. PRAVEEN PRAKASH SON OF SRI B.L.VISHWAKARMA AGED ABOUT 39 YEARS RESIDING AT A - 204, VDB CELADON HOUSING COMPLEX, SHIVANAHALLI VILLAGE, YELAHANKA HOBLI, YELAHANKA TALUK, BANGALORE - 560064 2. SRI SELVARAJ ARUMUGHAM SON OF LATE ARUMUGHAM K N AGED ABOUT 46 YEARS RESIDING AT C- 403 VDB CELADON HOUSING COMPLEX, SHIVANAHALLI VILLAGE, YELAHANKA HOBLI, YELAHANKA TALUK, BANGALORE - 560064 3. SRI NARASIMHA SWAMY SON OF LATE VEDALA SIMHADRI AGED ABOUT 37 YEARS RESIDING AT A - 401 VDB CELADON HOUSING COMPLEX, SHIVANAHALLI VILLAGE, YELAHANKA HOBLI, YELAHANKA TALUK, BANGALORE - 560064 4. SRI NARESH PRASAD P SON OF SRI A KUMARAN NAIR AGED ABOUT 45 YEARS RESIDING AT A - 403 VDB CELADON HOUSING COMPLEX, SHIVANAHALLI VILLAGE, YELAHANKA HOBLI, YELAHANKA TALUK, BANGALORE - 560064 5. SRI VIVEK NAIR SON OF SRI G C NAIR AGED ABOUT 36 YEARS RESIDING AT A - 102 VDB CELADON HOUSING COMPLEX, SHIVANAHALLI VILLAGE, YELAHANKA HOBLI, YELAHANKA TALUK, BANGALORE - 560064 6. SRI G SURIYA NARAYAN SON OF LATE R GOPALA KRISHNA IYER AGED ABOUT 53 YEARS RESIDING AT B - 404 VDB CELADON HOUSING COMPLEX, SHIVANAHALLI VILLAGE, YELAHANKA HOBLI, YELAHANKA TALUK, BANGALORE - 560064 7. M/S VALUE DESIGNBUILD PRIVATE LIMITED NO 14, 3RD MAIN, 3RD PHASE, 2ND STAGE, DOMLUR , BANGALORE - 560071 REPRESENTED BY ITS MANAGING DIRECTOR MR. KOSHY VARGHESE ...RESPONDENTS THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.16.2.2017 PASSED BY THE LEARNED XV ADDL. CITY CIVIL JUDGE, BANGALORE ON INTERLOCUTORY APPLICATION I.A.NO.10 FILED BY THE PLAINTIFFS [R-1 TO 6] IN O.S.NO.7911/2015 VIDE ANNEX-A AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER The present petition is directed against the order dated 16.02.2017 passed by the lower Court whereby the petitioner is impleaded as the party under Order 1 Rule 10 (2) read with Section 151 of The Code of Civil Procedure, 1908.
2. I have heard Mr.Mujtaba H., learned Counsel for the petitioner.
3. The contention raised on behalf of the petitioner was that the petitioner is not concerned with the builder-original defendant. It was submitted that the petitioner is an Association formed of various members who is looking after the maintenance facility but the builder-original defendant has not given accounts and the other fund, if any, of all members for the purpose of maintenance. It was also submitted that no relief is prayed against the petitioner in the plaint by the original plaintiffs and therefore the petitioner ought not to have been impleaded as the party. Hence, this Court may interfere.
4. As such, it is undisputed position that the main subject of the suit is pertaining to common facility to be enjoyed by all the residents of the Apartment and the same was also required to be originally maintained by the builder. It is not the case of the petitioner that the petitioner is not looking after the maintenance facility of the Apartment.
5. Under the circumstances, the subject can be said as related to maintenance facility and as the petitioner is looking after the maintenance facility of all members, the presence of the petitioner is required for adjudication and further if any order is passed for maintenance facility or continuation of the maintenance facility in favour of the original plaintiffs or otherwise, the petitioner is also necessary party to the proceeding, since the maintenance facilities are now subsequently taken over and are now being looked after by the petitioner. It is a different matter that the petitioner may have defence available in law in the main suit proceeding, but thereby it cannot be said that the petitioner is third party to the litigation which is not concerned with the subject matter of the suit.
6. If the aforesaid aspect is considered read with the reasons recorded by the learned Trial Judge it cannot be said that there is any error of jurisdiction committed which may call for interference in exercise of the power under Article 227 of the Constitution.
7. Hence no case is made out for interference.
Therefore the petition is dismissed.
8. It is observed that rights and contentions of both the sides in the civil suit shall remain open to be considered in accordance with law.
Sd/- JUDGE JT/-