Karnataka High Court
Shri. Nasirpasha Umarpasha Inamdar vs Shri. Saifulla S/O Mohammad Jaffar ... on 3 February, 2023
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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WP No. 100479 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
WRIT PETITION NO. 100479 OF 2023 (GM-CPC)
BETWEEN:
1. SHRI. NASIRPASHA UMARPASHA INAMDAR,
AGE. 65 YEARS, OCC-BUSINESS,
R/O 2384/1, AZAD GALLI,
BELAGAVI-590001.
2. SMT.TANVIRA W/O NASIRPASHA INAMDAR,
AGE. 53 YEARS, OCC. HOUSEHOLD WORK,
R/O 2384/1, AZAD GALLI, BELAGAVI-590001.
...PETITIONERS
(BY SRI. SANGRAM S.KULKARNI, ADVOCATE)
AND:
1. SHRI. SAIFULLA,
S/O MOHAMMAD JAFFAR GOUNDI,
AGE: 48 YEARS, OCC: BUSINESS,
R/O PLOT NO.93, 3RD CROSS,
NEW VEERBHADRA NAGAR, BELAGAVI-01.
CHANDRASHEKAR
LAXMAN
KATTIMANI
2. SHRI. KASIM M.MIRZA,
Digitally signed by
CHANDRASHEKAR
AGE 48 YEARS, OCC. BUSINESS
LAXMAN KATTIMANI
Location: High Court of
Karnataka, Dharwad
R/O 2386, AZAD GALLI, BELAGAVI-590001.
Date: 2023.02.07 11:59:28
+0530 ...RESPONDENTS
(BY SRI. MANOJ BIKKANNAVAR, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO, (1)
ISSUE A WRIT OF CERTIORARI AND QUASH THE IMPUGNED
ORDER DATED 13/10/2022 IA NO.7 PASSED BY THE COURT OF
1ST ADDITIONAL CIVIL JUDGE AND JMFC, BELAGAVI IN O.S.
NO.1119/2015 VIDE ANNEXURE-G.
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WP No. 100479 of 2023
THIS PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition is directed against the impugned order dated 13.10.2022 passed on I.A.No.7 in O.S.No.1119/2015 on the file of I Addl. Civil Judge and J.M.F.C. at Belagavi whereby the aforesaid application filed by the petitioners-defendants under Order I Rule 10(2) C.P.C. seeking impleadment of proposed defendants No.2 and 3 to the suit was rejected by the trial Court.
2. Heard learned counsel for the petitioners and learned counsel for the respondents and perused the material on record.
3. For the order proposed, notice to respondent No.2 is dispensed with.
4. A perusal of the material on record will indicate that respondent No.1/plaintiff instituted the aforesaid suit against respondent No.2/defendant for permanent injunction, mandatory injunction and other reliefs in relation to the suit schedule immovable property. The said suit is being contested by respondent No.2/defendant. Meanwhile, petitioners herein -3- WP No. 100479 of 2023 have also instituted a suit in O.S.No.284/2018 on the file of the Principal Senior Civil Judge, Belagavi for declaration, injunction and other reliefs in relation to the property mentioned in the plaint in the said suit. It is relevant to state that in the said suit, respondent No.1/plaintiff herein is arrayed as defendant No.2 while respondent No.2/defendant herein is arrayed as defendant No.3 and said suit is pending adjudication.
5. The petitioners filed the instant application-I.A.No.7 seeking impleadment in O.S.No.1119/2015 interalia contending that since the allegations are made by respondent No.1/plaintiff in the aforesaid suit O.S.No.1119/2015, the petitioners are both proper and necessary parties to the present suit. The said application having been opposed by the respondent No.1/plaintiff, the trial Court proceeded to pass the impugned order rejecting I.A.No.7 by placing reliance upon the judgment of the Apex Court in the case of Razia Begum V/s Anwar Begum reported in AIR 1958 SC 886 and in the case of Kasturi V/s Uyyamperumal and others reported in (2005) 6 SCC 733 by coming to the conclusion that the presence of the petitioners was neither relevant nor necessary for the purpose of adjudication of the issues in controversy between -4- WP No. 100479 of 2023 the parties and that even in the absence, an effective decree can be passed in the present suit. The trial Court also came to the conclusion that respondent No.1 being the dominus litus cannot be compelled or forced to implead the petitioners herein so long as reliefs. In the said suit, the reliefs are sought for by respondent No.1/plaintiff against the petitioners.
6. While coming to the said conclusion, the trial Court has held as under:
"The proposed defendant No.2 and 3 have filed I.A U/O I Rule10 R/w Sec.151 of CPC to implead them as defendant No.2 and 3 in this suit.
2. In the affidavit filed in support of I.A it is submitted that property bearing CTS No.832/10/A2 where sub divided into 3 parts by the city survey authority and assigned 3 survey numbers as 832/10A2A, 832/10A2B and 832/10A2C and there after CTSNo.832/10A2B and 832/10A2C were cancelled by concerned by city survey authority. The proposed defendant No.2 is the absolute owner of CTS No.832/10/B measuring 20.90 square meters, CTS No.832/10C measuring 27.59 square meters and832/10A/2C measuring 93.64 square meters by virtue of registered gift deed dated 10.02.1971 executed by his grandmother Mrs.Halimbi W/o Sayyedsaheb Pasha Inamdar. The nameof proposed defendant No.2 is mutated as per gift -5- WP No. 100479 of 2023 deed as the property was gifted to proposed defendant No.2. Mrs.Halimbi W/o Sayyedsaheb Pasha Inamdar as no right, title and interest over the property. She has not transferred the right, title and interest of the property to her two daughters by name Mrs.Noorjahan Abdul Rauf Bukhari and Mrs.Hafeeza Begam Kadermiya Inamdar nor they challenged the gift deed dated 10.02.1971. The proposed defendants never executed any registered documents nor conveyed any right, title and interest in favour of Smt.Noorjahan Abdul Rauf Bukhari or in favour Mrs.Hafeeza Begam Kadermiya Inamdar. In O.S.No.1163/2010 the proposed defendant No.3 filed suit for declaration and consequential relief of permanent injunction against proposed defendant No.2 and the said suit ended in compromise. As per the compromise decree the proposed defendant No.3 became absolute owner of property bearing CTS No.832/10A2C measuring 93.64 square meters, CTS No.832/10C measuring 27.59 square meters and CTS No.832/10B measuring 20.90 square meters.
3. Further, it is submitted Mohamadkamil @ Kamil S/o Andulraouf Bukhari had filed application before ADLR Belagavi to fix the boundaries of CTS No.832/10/A2B and said order was challenged before DDLR Belagavi in CTS Appeal No.30/2014-15 but the said Appeal was allowed on 13.05.2015. The said order was challenged before JDLR Belagavi in Revision Petition No.12/2015-16. The said Revision was rejected on 19.05.2016. The proposed defendants challenged the -6- WP No. 100479 of 2023 Revision Petition in WP No.105145/2016 and same is pending for consideration. After the collecting the records from city survey authority the proposed defendants came to know that Mohamadkamil @ Kamil S/o Andulraouf Bukhari with his mother in collusion with their family members and revenue officials have mutated the name of Noorjahan Abdul Rauf Bukhari on the basis of bogus documents styled as affidavit. The Noorjahan Abdul Rauf Bukhari during the pendency of matter before DDLR Belagavi in RTS/AP/30/2014-15 executed sale deed infavour of plaintiff on 11.04.2014 and contended that said sale deed is not binding on them.
4. The proposed defendants have filed O.S No.284/2018 against the plaintiff and Mohamadkamil @ Kamil S/o Andulraouf Bukhari and same is pending for adjudication. Hence prays to allow the application.
5. Per contra, the plaintiff filed objection by dining all the contention taken by the proposed defendants. It is contended that in O.S No.284/2018 the I.A U/O XXXIX Rule 1 and 2 is dismissed and parties are directed to maintain status-quo. The proposed defendant No.2 and 3 neither proper parties nor necessary parties to the suit as their right cannot be adjudicated in this case. Hence prays to reject the I.A.
6. Heard on both side.
7. The plaintiff filed suit by seeking relief of permanent injunction and mandatory Injunction against the defendant. The plaintiff in order to prove his case -7- WP No. 100479 of 2023 examined himself as PW-1 and got marked Ex.P.1 to 13. During the stage of cross-examination an amendment application was filed and amendment carried out in the plaint. At this juncture the proposed defendant No.2 and 3 have come up with this application to implead them as necessary parties to the suit.
8. In order to implead proposed defendants as defendant No.2 and 3 in this suit they have to prove there presence in this suit is necessary in order to enable the court effectually and completely to adjudicate upon and to settle all the questions involved in the suit.
In Kasturi vs. Uyyamperumal and others reported in (2005) 6SCC 733, the Hon'ble Apex Court observed that "it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings (2) no effective decree can be passed in the absence of such party."
In Razia Begum Vs. Anwar Begum, reported in AIR 1958 SC886, the Hon'ble Apex court laid down the following broad principles:-
"(1) That the question of addition of parties under R.10of Order1 of the code of Civil Procedure, is generally not one of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case, but in some cases, it may raise controversies as to the power of the court. In contradistinction to its inherent -8- WP No. 100479 of 2023 jurisdiction or, in other words of jurisdiction in the limited sense in which it is used in S.115 of the code.
(2) That in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject-matter of the litigation;
(3) Where the subject-matter of litigation, is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party. It would be in a better position effectually and completely to adjudicate upon the controversy.
(4) The cases contemplated in the last proposition, have to be determined in accordance with the statutory provisions of Ss.42 and 43 of the Specific Relief Act.
(5) In Cases covered by those statutory provisions the court is not bound to grant the declaration prayed for. On a mere admission of the claim by the defendant. If the court has reasons to insist upon a clear proof apart from the admission.
(6) The result of a declaratory decree on the question of status, such as in controversy in the instant case, affects not only the parties actually before the court but generations to come, and in view of that consideration, the rule of present interest as evolved by case law relating to disputes about property does not apply with full force: and -9- WP No. 100479 of 2023 (7) The rule laid down in S.43 of the Specific Relief Act, is not exactly a rule of res-judicata."
9. On perusal of plaint the relief sought is permanent injunction and mandatory injunction. There is no relief claimed against proposed defendants or properties of proposed defendants. The proposed defendants claimed that CTS No.832/10A2B and 832/10A2C were cancelled by concerned city survey authority. The suit schedule property is CTS No.832/10/A2B measuring 31.21 square meters. On perusal of copy of plaint in O.S 284/2018 filed by proposed defendants the suit schedule property is 832/10A2 measuring 516 square yards. The suit schedule property of this case and O.S No.284/2018 are different. The proposed defendants have not produced any documents regarding cancellation of CTS No.832/10A2B and 832/10A2C.
10. On perusal of the plaint averments of O.S No.284/2018 the plaint averments are re-iterated in the affidavit of this I.A No.7. More than that O.S No.284/2018 is filed against Mohamadkamil @ Kamil S/o Andulraouf Bukhari and this plaintiff by seeking declaration of ownership of suit property and declaration of sale deed dated 11.04.2014 as null and void. The proposed defendant have not explained how their presence before the court is necessary for effective adjudication of this case. The proposed defendants filed a suit by seeking their relief in the O.S No.284/2018. Hence the same relief cannot be adjudicated in this case. The plaintiff in this case has
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WP No. 100479 of 2023 not claimed any relief pertaining to properties of proposed defendants. Hence this court is of a considered view that the proposed defendants are neither proper parties nor necessary parties. Hence I proceed to following;
:ORDER:
The IA No.8 filed by proposed defendantNo.2 and 3 is hereby rejected.
Addl. issues framed.
For plaintiff evidence on amendment plaint by 03.11.2022."
7. Upon reconsideration, revaluation and re-appreciation of the entire material on record, I am of the considered opinion that the impugned order passed by the trial Court does not suffer from any infirmity or illegality and has not occasioned failure of justice warranting interference under Article 227 of the Constitution of India as held in the case of Radhyesham V/s Chabbinath reported in (2015) 5 SCC
473. Accordingly, I do not find any merit in the petition and the same is dismissed. It is however made clear that the petitioners shall not be bound by any findings, order, judgment or decree to be passed in O.S.No.1119/2015 and same will not affect or prejudice their rights and contentions in the suit
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WP No. 100479 of 2023 schedule property or in O.S.No.284/2018 pending before the Principal Senior Civil Judge, Belagavi referred to supra.
8. All rival contentions between the parties in O.S.No.1119/2015 and O.S.No.284/2018 kept open and no opinion is expressed on the same.
SD JUDGE CLK List No.: 1 Sl No.: 17