Karnataka High Court
Sri Nanda vs Sri Srinivas Murari Naik on 5 September, 2013
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5TH DAY OF SEPTEMBER, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.8610/2008 (GM-CPC)
BETWEEN:
SRI NANDA
S/O.BABU TALEKAR
AGED ABOUT 52 YEARS,
OCC:AGRICULTURE,
R/O.MADHEWADA, ASNOTI,
KARWAR TALUK AND DISTRICT.
... PETITIONER
(BY SRI S.S. SAJJAN FOR SRI RAVI G. SABHAHIT,
ADVOCATE)
AND :
SRI SRINIVAS MURARI NAIK
AGED ABOUT 32 YEARS,
PERMANENT R/O.BALNI,
NOW AT KODIBAG,
KARWAR, KARWAR DISTRICT.
... RESPONDENT
(NOTICE HELD SUFFICIENT)
THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE IMPUGNED ORDER PASSED BY CIVIL JUDGE
2
(SR.DN.) KARWAR IN O.S. NO.18/2005 DATED 18.03.2008
ON I.A. NO.3 AT ANNEXURE-A.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Petitioner has filed O.S. No.18/2005 in the court of the Prl. Civil Judge (Sr.Dn.) Karwar. Suit was instituted on 07.02.2005, to pass a decree for specific performance of agreements dated 17.02.1998 and 31.01.2003, in respect of the two items of the properties, described in the schedule of the plaint and for grant of consequential reliefs. Defendants, by filing a written statement, as per Annexure-C, on 16.04.2005, have contested the suit. Respondent filed I.A. No.3 vide Annexure-D, under Order 1 Rule 10 (2) read with section 151 C.P.C., to permit him to come on record of the suit as defendant No.8 and contest the suit by filing the written statement and counter claim, on the basis of an agreement of sale dated 19.01.2002 allegedly 3 executed by husband of defendant No.4 and father of defendant Nos.5 and 6, to an extent of 0-10-0 out of 0- 20-0 property standing in his name in Sy. No.84/1+2, having total area of 1-16-0 of Savantawada village. Though statement of objections was filed by the plaintiff and the defendant No.7, learned trial Judge allowed I.A. No.3, on the ground that the total extent of the property is 20 cents and the applicant has claimed 16 cents and if the suit is decided, the applicant would be put to great hardship. By observing that the burden with regard to the execution of agreement lies on the applicant and that the plaintiff and defendant No.7 will have a chance to disprove the case of the applicant during trial, the I.A. No.3 was allowed. Assailing the said order, this writ petition has been filed.
2. Learned Advocate for the petitioner contended that the learned trial Judge has committed material error and illegality in allowing I.A. No.3 and permitting 4 the applicant to come on record as defendant No.8. He submitted that the respondent-applicant being neither a necessary nor a proper party in the suit for specific performance of the contract, on account of a mis- direction adopted, an irrational order having been passed, interference is warranted.
3. Perused the Writ record.
4. In Anil Kumar Singh v. Shivnath Mishra Alias Gadasa Guru, (1995)3 SCC 147, in a suit for specific performance, the respondent, who was not a party to the contract, but wanted to implead as a defendant on the ground that he has acquired subsequent interest as a co-owner by virtue of a decree obtained from the Court, was held, not entitled to come on record as defendant, having regard to the provisions of Section 15 and 19 of Specific Relief Act, 1963 (hereinafter referred to as the 'Act' for brevity). 5
5. In a suit for specific performance, whether a stranger to an agreement of sale, i.e the suit document can be added as a party, in view of section 15 of the Act, is the question which the trial Court ought to have posed to itself, while deciding I.A. No.3. Clause 1 of Section 15 of the Act, entitles a party to the contract to seek specific performance of such contract. Indisputedly, the applicant-respondent herein, is a third party to the suit agreements and does not, therefore, fall within the category of "performance to the agreement". The applicant-respondent herein, also does not come within the ambit of section 19 of the said Act, which provides for relief against parties and persons claiming under them. The said aspect has been made clear by the Apex Court in the case of Kasturi v.
Iyyamperumal and others, (2005)6 SCC 733.
6. The proper course for the applicant in I.A.No.3, is to have instituted a separate suit seeking specific 6 performance of the alleged agreement of sale in his favour and seek clubbing of the suits, for determination. The learned trial Judge has committed material error and illegality in passing the order dated 18.03.2008 and allowing the applicant in IA 3 to come on record as defendant No.8. The impugned order being irrational, can not be upheld.
In the result, petition is allowed and the impugned order is quashed. I.A. No.3 filed in the suit is dismissed. However, it is open to the respondent-applicant in I.A. No.3 to institute separate suit, if he so desires and seek enforcement of the alleged agreement of sale dated 19.1.2002.
No costs.
Sd/-
JUDGE hnm/