Karnataka High Court
The Church Of South India vs Ubmc Trust Association on 10 June, 2019
Author: Krishna S.Dixit
Bench: Krishna S. Dixit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JUNE 2019
BEFORE
THE HON'BLE MR.JUSTICE KRISHNA S. DIXIT
WRIT PETITION NO.52544 OF 2018(GM-CPC)
BETWEEN
The Church of South India
Trust Association, a company
Registered under the Company's Act 1913,
Represented by its power of Attorney Holders,
1.Rt.Rev.Bishop; Mohan Manoraj,
Bishop, Karnataka Southern Diocese,
2. Mr.Vincent Palanna,
Treasurer,
Bishop, Karnataka Southern Diocese,
Both at Balmatta,
Mangaluru.
... Petitioners
(By Sri.Sailesh S.Katarey, Advocate)
AND
1. UBMC Trust Association
Of SK and Coorg,
Represented by its
Chairman,
Mr.Ronald Manohar Karkada,
UBMC Jubilee Complex,
Mission Compound,
Udupi-576 101.
2. Joseph Karkada,
S/o. Late S.Karkada,
Aged about 83 years,
Door No.5-4-64,
Near UBMC Jubilee Church,
Mission Compound,
Udupi-576 101.
... Respondents
(By Sri. Vishwanath R.Hegde, Advocate for C/R1)
-2-
This writ petition is filed under Article 227 of Constitution of
India praying to set aside the order dated 10.09.2018 vide
Annexure-A passed by the learned 3rd Additional Civil Judge and
JMFC, Udupi in O.S.NO.485/2013 on IA.No.11 and allow the
impleading application NO.11 filed by applicant/petitioner.
This Writ Petition coming on for Preliminary Hearing this
day, the Court made the following:
ORDER
Petitioner, an intending party to the suit in O.S.No.485/2011 filed by the first respondent - plaintiff against the second respondent - defendant is invoking the writ jurisdiction of this Court for assailing the order dated 10.09.2018 made by the trial Court rejecting its application in IA No.11 filed under Order 1 Rule 10(2) read with Section 151 of CPC, 1908 whereby the request for its impleadment as the second defendant to the suit is negatived. The respondent - plaintiff has entered Caveat through its counsel. Notice to second respondent - defendant is dispensed with since it is not a contesting party.
2. Learned counsel for the petitioner argues that the suit of the contesting respondent - plaintiff is, inter alia, for a decree of mandatory injunction against the second respondent - defendant for vacating the subject premises and to pay the damages for the illegal occupation at the rate -3- of Rs.2,000/- pm; this property prima facie belongs to the applicant herein; the Court below by misconstruing the concept of discretion and of proper & necessary party has negatived petitioner's request for impleadment virtually by holding a mini trial; the petitioner having placed before the trial Court prima facie material to show its litigable interest in the subject property, ought to have been permitted to come on record as the second defendant since he is a proper party if not a necessary party; the wrong approach of the trial court with the misconstrued legal concepts has resulted into passing of the impugned order which merits invalidation and that the petitioner be permitted to be impleaded to the said suit.
3. Learned counsel for the Caveator respondent vehemently contends that the impugned order of the trial Court is well reasoned; absolutely no material is placed by the petitioner to justify his claim for invalidation of the impugned order; the material which the petitioner had placed before the trial Court seeking his impleadment having been duly considered, and the leave for impleadment having been rightly denied, there is absolutely no reason for indulgence of Writ Court in the matter in its restrictive jurisdiction under Article -4- 227 of the Constitution of India. So contending, he seeks dismissal of the writ petition.
4. I have heard the learned counsel for the petitioner and the learned counsel for the Caveator respondent. I have perused the writ petition papers.
5. The contention of petitioner's side that they have a litigable interest qua the subject property is prima facie substantiated by the following observation of the Division Bench of this Court in RFA No.280/2001 to which the petitioner herein was party as respondent No.1.
"...........The possession of the schedule property is with defendants 1,3 (petitioner herein), and 40. Other defendants, who are working with them in various capacities are in possession of or in control of or in management of the plaint schedule property". Again at para 188 it is observed "It is therefore clear, that all the sit schedule properties are in possession of defendant No.1,3 (petitioner herein), 40 who are not entitled to the same. They got into possession of the property under registered documents which are void ab initio. Having got into possession, the third defendant (petitioner herein) is acting as a trustee of all the suit schedule properties ...."-5-
In deciding the application for impleadment what the Court has to consider essentially is the existence of a prima facie litigable interest and the likely adverse impact if the suit is decreed without the applicant as a party eo nomine. The Apex Court in the case of RAZIA BEGUM VS. SAHEBADI ANWAR BEGUM AND OTHERS, AIR 1958 SC 886 has laid down the principles for deciding who is a necessary/proper party. What prejudice would be caused to the parties to the suit if impleadment is allowed, also could be one of the relevant factors which the Court below has not adverted to. Other error apparent on the face of the impugned order is Court's understanding the concept of discretionary power. It has long been settled position of law that the discretion means according to the rules of reason and justice. In the present case, the reason and justice warrant the leave being granted to the petitioner to get impleaded as a defendant to the suit. An argument to the contrary cannot be sustained without causing a great injustice and a huge loss to the petitioner.
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In the above circumstances, this writ petition succeeds; the impugned order is set at naught; the petitioner's application filed under Order 1 Rule 10(2) read with Section 151 of CPC, 1908 is favoured; petitioner is permitted to be impleaded as a defendant to the suit in question; it is open to the petitioner to file his Written Statement / Counter Claim within six weeks.
No costs.
Sd/-
JUDGE HB/ag