Karnataka High Court
Sri V Chandrashekaraiah S/O Late ... vs Smt Puttamma W/O Late Veeranna on 30 August, 2010
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 30TH DAY OF AUGUS7Ifi ':V" THE HON'BLE MR. JUSTICE WRIT PETITION No,12_47 O1f 2oo91 BETWEEN Sria V Chandrashekaraiah S/0 Late Veeranna H _ . Aged about 52_years_... _ ' R/at Rangermrhaili _, Solura Hoblii, I\/§aagadi"Taq. Ramanagara_'DiS'1i;!__ 9 " -- 3 V * ...Petitioner (By Sri r;,4anj:-;math:V,:'-Adv) ' AND 1' V H' M " 1. s.mt.PLi'ttamma A' 3 /0 late Veerannira "~.Age..d about Sfijféars T A _R/.at»RaTig€_:naha11i Village V S01_IT1'r' .H0i3.Ii_;.~ Magadi Taluk. 2.-..sr: V_Sh1fizai9udraiah S/0" late Veeranna AA _ Aged' about 30 years " R.V.Sadashivaaiah Son of late Veerarma Aged about 29 years Q no 4. Sri Vfihadaksharappa Son of late Veeranna Aged about 36 years R/ at Rangenahaili Soiura Hobli, Magadgi Taq. Ramanagara Dist. - 5. Smt. Lahthamma W/o Puttarevanna Aged about 45 years _ Honnanarayana Haili Vi11a'ge* Thyamagondulu Hzobii ' Nelamangala Ta1uk""~.. _ V Bangalore Rural District'; g} _ , - _ V 2 - Respondents
(Respondent Nos._1 and 3' de1ete'd_Vvide«,C'ourt order dated 1E3.06.2010){_" 'V {By Sri T.S-egsifiiagiriii"Ra.o';:'~.:AdV'forV'R5) 'filed under Articles 226 and 227 india, praying to quash the impugnediiéorder.hvide Ainnexure 'A' order (it. 23.09.2008 pasisegigi in o;s.ii1\m_1o2/97 allowing the IA dated i This fietition having been heard} reserved on 1442'.'Q'7"'."20'14'() d,a»rwL. coming on, this day for 'rpronoiiricement of orders. the Corirt made the following:
?> F exclusive possession of the same. The suit property is agricultural land. The defendants are the diyvivdedihsons of the plaintiff. It was alleged that they persons, were making hectic atteniptsjtof ' . the suit property. There is also lodged against the defendants. The herein' V' had filed his written,.-statern-e'n:t;_:contesting'Vtheisuit while denying that therel'llw.asl\'or any family arrangemenyt.-igit from the suit property;the_rgiff"are_ properties which are all if only on account of discord folk in the family. that the defendants were-- separately, but however, there ngonpartitionllollltlhe properties. The petitioner claims that" fact, in possession and enjoyment of the It is contended that the plaintiff was the third "wife of his father and the other defendants are her It is further alleged that the plaintiff and the * ~.----other defendants have in collusion set--up the alleged % family arrangement and the purported signature of the petitioner under the deed recording a V.---family arrangement, was forged. The petitioner is the son of the second wife of late veeganna; other defendants have taken a'dvar1tag--e_ of 7 and have used their learning tofd.efr--aud petfitionerdofp his legitimate share in the"f'e»fami1y that, the defendants have revenue entries in respect of the family A to~~.e;xe._.'lVL1'de the petitioner from the p.e'titi'or1e--r~:has challenged the corre'ctfne's.S':i:p of ':fitl1.§' ' ~ . fevenue' 'V entries in appropriate procefe-dings. -- alleged that even during the p61',1d_€ncv""of:Vthe,'-- su.itv,f"'the plaintiff has bequeathed the :,.pro'p.erty'Vfu'nder a registered gift deed dated favour of respondent No.5, who in turn, application seeking to implead herself in nthe That application was contested by the if g:p'cti*tioner. But, however, the same having been allowed, " - --the petitioner seeks to challenge the same. é 6
4. The learned Counsel for the petitio_n.e_r,.4llwhile reiterating the above circumstances, contends"
suit being one for bare injunctiJon,_filed_-'in' » up and the irnpleading applicant clairniiiig admittedly, executed durling~»..the hp-Sijldeunley suitr the applicant could,..r1ot l'tov..co.1:§1tinue the suit by Virtue of since the suit is for ifelieffioll the only issue that there was alleged with the suit property, and applicant would have no cause oflactionv':--toA"clairr1_ a right to participate as a co '~ . "i-The feaeen assigned by the trial court that the to be allowed in order to avoid rnultipiicit.yAl0f proceedings, is not a consideration on A.v;vphich..«lan application under Order 1 Rule 10(2) of the it '~_lCo-de of Civil Procedure, 1908 (hereinafter referred to as for brevity) could have been allowed. It is these 3 primary contentions, which are sought to be enlarged in the arguments put forth.
5. It is contended that the relief' granted, would confer a right "-in :pe'r9sonam--. to e_nfor'ce the same against the defen:(i'a,nts;"' not one which runs with the -..lia-rid-»c,_in florder-it that the irnpleading applicant Vta;:'oLri~:lf* 'Vested right in seeking to _con;ti:nuej:gth»e_:'V.«rsu.it"~?asV'Vaijco--plaintiff on the basis of have been executed in he'rMfavoi:1r pendency of the suit, without even the court be:_ingi«t__al;er-1 into confidence in respect of thegsarneii" cause loft. action is alien to the irnpleading Aapplic_ant'~_ancl&"therefore, the suit was rendered the plaintiff was no longer the owner of The irnpleacling applicant seeking to step pinto shoes of the plaintiff as plaintiff No.2 is hence ' Vnctpermissible.
Z
6. While on the other hand, the learned Counsel for the respondent No.5, who has conteste:'d_l'~~this petition, would assert that the suit indeed been gifted to respondent'No.5"'[§y:§~.;spo_iide,n'tVV' No.1 and the trial court has, in ;%aeic¢gfi:t:p;:nleof transfer, allowed the application the.said"3re'spondent' is not a stranger who has acquired title to theuésandiel passed in respect of theLVVsvVf._1it her interest, there to be made a party to the application has been »{l'l€I'€ is no substance in the writ. petition; VThe"'learned Counsel places reliance on v ., ptlielifoi-.lioWixfig j H liiarepnvdranath Shetty and Another Vs. Sri P.S. lemma mac Pisey and Others ILR 2009 KAR 2870 n2.h"lZ)éhurandhar Prasad Singh Vs Jai Prakash University " "and others 2001 AIR scw 2574.
3. Sapan Kumar Pandit Vs U.P.State Electricty Bqard and others 2001 AIR scw 2685. '
4. Babulal Khandelwal 81 Ors. Vs. Balkishfih <31 Ors. AIR 2009 SC 67.
5. Hanuman Ram Vs. Stat; 0f"R_eij'astha1iA 2009 SC 69.
5. Sahdeo Singh angihozmgrg. ..'::Ra_InchhabiIa and Others, AIR_1978vAPa.fr1fa.2-581 ' h
7. subhash'].chafi:;1§~a:h.jh3;r§; .H§r'hcov:nd Singh AIR 1978
8. MeIA{'a,V_ and Another Vs. Meka Pulla Ready hfzogjeh INDLAW AP 293 »A VTar€ihaman Stanakvisi Jain Sravak Sangh Vs. and another ILR 1984 Kar 889.
..:'On a consideration of the above and having hh fégafd to the facts and circumstances, the point for h consideration is:
10 "Whether in a suit for bare injunction,__ a transferee, pendente lite, is a proper ar1d_l'a_V necessary party to be irnpleaded?
8. The case law cited at the bar brieflfj,r_/rveferrned to, in Dr. Narendranath Sphettyl/'Vs lease supra'; the; were as follows:
The first respondent_.'t'hle'rfelir_ill.lfi§vas thelpllaintiff in a suit for partition and T he first defendant in executed a sale deed in of the suit schedule prope:_irtiesl_' therein, on the footinéthatitwafsf:..Ath:_e'*tr:endors of self--acquired property andgthe petitioner was put in possession of the same. Duri.n§l.f:'thfea_pendency of the suit, the first defendant representatives were brought on record. The--- su.it.was thereafter decreed. The legal heirs of the it defendant challenged the same and were ultimately 'before the Apex Court in an appeal after having "unsuccessfully contested the proceedings before the 5 lower Courts. The Apex Court modified the judgment and decree to hold that the plaintiff was to 11/ 40111 share in the property in one of and 1/10th share in anotherwitem._--""'Wi:.iie'w:it observed that he was not at all entit.1ed'reto'Aai*iy'sh.arc;_in yet another item. '1'he*p_etitione-rs' in thefcase loeforef this Court being purchaser_s_C:_tiie_» properties} pendente lite, had filed an -the Apex Court, seeking legivcp. to to impleaded themselves of the judgment.
apex Court. The Court declinedll such an application. The plaintiff Cath_er'eai'~ter'v. had initiated the final decree &pf9.{':ee'dings. said proceedings, the petitioners application to implead themselves cl*a__irni_ng proper and necessary parties, on the footing ppthatztiiey had purchased item No.2 of the plaint' it uscheduled properties. That application was rejected. 'V »-This Court was therefore, addressing the question 3 whether a purchaser of the property, pendete lite, in a suit for partition could be impieaded in finval_::'-decpree proceedings.
9. This Court placed reiiarice4on_7the"iigidgrriéentaodf'ye the Supreme Court in the caselfiof Choudhary and Another._V:pViV_ Visiznu Hdai-i«:._;19atii antic' Others (AIR 1983 SC I2.a<é'r'},V:A."p'wherein' held as follows: __ V p "6. Section 52 ' Property Act that a transferee nip-endednte :'interest in an immovable property isbthe subject matter of a suit 'ufrom anydiof the parties to the suit will be in somtar as that interest is concerned "thVe.V:'_iproceedings in the suit. Such a is a representative in interest of .. tihedparty from whom he has acquired that interest. Rule 10 of Order 22 of the Civil Procedure Code clearly recognises the right of a transferee to be impleaded as a party to § 13 the proceedings and to be heard before any order is made. It may be that if he doesvnotjh apply to be impieaded, he may default on account of any order the proceedings. But if, impleaded as a party and has got to be so irnp1eaded".and 3 can also prefer an appeal. again_st"Aar1 order made in the said pro-r:'eedin'g~s_ butiwithvj the leave of the appeiiiate. he is not already br_ought,..o.ri_ record. [osition of a person" ';i'n't:er'es.t....had devolved on d'L-V1rin,q the pendencv pro-cee»din,q is somewhat of...oa_riVr V. 'siiiit . or :'simila.rVt"o._'t.hei pp o.sitvio1'1 -of an heir or a legatee of a 'partv..iVh'o dies"dnrin,q the pendencv of a . suit 4"or_'Vav.p.roc'eedin,q. or an official receiver oI.rer'the assets of such a party on _V insolvencv. An heir or a legatee or an .A;o_ffi;,";i_alV.d'v'vV"receiver or a transferee can participate in the execution proceedings even "though their names rnav not have been it I shown in the decree preliminary or final."
and this Court heid that Order XXII Rule 10 CPQ, deals with the procedure in case of assignment befo1~*e"a's'fina1 order in a suit and that, in the case of an creation or devoiution of any. ._inte'rest"*duringr_ thek pendency of the suit, the suit lesave' be continued by or against person to or 'eporr iévhorn' such interest has conie orV.rdestfo1Ved..'and'eventiassurning that the petitioners were not proper parties, they -¢j:V0:1.1Id assignees under Order is Even though an 1 Rule 10 CPC, the labeilingss and the Court could always treat the eerrre as are under Order xxn Rule 10(1) cpc. V or consideration therefore, according to'--.this.-Coifut, was that it was to be addressed whether the 1"eiief couid be granted in favour of the applicant and would be a question which could be gone into during the course of the proceedings and cannot be said 5 at the very threshold and this Court also relied upon the judgment in Phoolchand Vs. Gopal La}. AiR."~ll£_36_'1"~».v{SC 1470, to hold that insofar as partit_ion concerned, if an event transpi_res._afte.i=? the'<p~rel'irninaryll't. decree which necessitates a rnodiiiication'-olf the the Court can and shoulld.V:vg:lir1._odifAy' the_vsh:ai*es"'allotted}V but this can only b.€...do'n&e;"'so'g':'long as lithe. final decree has not been passed and vtlie-.petitioners were entitled to, be '-_~ and necessary parties.
in xflhurandhar Prasad Singh's case _supra. _th-e_f,act's are as follows:
A .,'i'he'«.ap,pel1ant had filed a suit for a declaration to declare' -t'l3.at=Vlthe termination of his services from an edncational institution by the Secretary of the governing iibody, as being illegal. In the suit, the governing body had entered appearance, but no written statement was 3 E6 I filed and the suit was decreed exparte for all purposes and the defendants were restrained from giving 'effect to the order of termination. The _}'LIdgII1_;€'1'1tl.:u"d§E>t:6I'S however, did not comply with the decree»,--c appellant to take out execution decree. In the execution .::as_e, anA.objection}w,as filled the Principal of the _University objecting t0 the decree on the ground that4_Aduring"' the suit, the institution' unit of the jelrstivliidllle"governing body ceased to existllandl. was not impleaded as a party to suit, Atvhe'"'decree was unexecutable. Even the Iiendency of the execution case, the "i:g.f1stitvut.io'nf-again became a constituent unit of yet another lvdlljiniversity and that University also filed a AA similar' objection in the execution. The executing court lglaliowed the execution and the matter was carried in ~7:1'evision to the High Court. The matter was remanded é to the executing Court to consider the objections raised afresh. After permitting the parties to adduce eiddence on such remand, parties did adduce evidencVe'infpp_ori. of their respective cases. The objections..w,ei*eV ultimately.' re'ected b the executin court.-,- i7vh.i.c.h 'was'--i_a«-sin challenged by way of revision before" the set aside the order of the which was then challenged beforerl' The questions that arose for Aconsideraiion th:e.vl'Apex Court were as follows; 2 " .
_ in derlrolution of interest _ " of a suit as '*-__postu1alteld' Order 22 Rule 10 of the__lCode,' decree passed against the "l'p_redece'ssor--in-interest without bringing J,,th:e"--successor--ir1--interest on the record make the decree nullity and the "same can be executed against such a person who was not impleaded as party?
2. Whether application under Order 22 Rule 10 seeking leave of the Court is required 8 under law to be filed by that person alone upon Whom interest has devolved the pendeney of the suit and by else
12. The Apex Courtghl consideration of the case law_ on th=ell'pointl,l5.»eld tha;t.t'1ie"'lp decree was passed againstllllllthe' goveriiing of the College, which was the leave of the Court against the University of the original defendant Such an omission did ab iniiio, so as to invoke the appIir::ation"* 47 of the Code and entail disinissal of lexeeutipcin. The validity or otherwise of a llcieereefi be challenged by filing a properly ll or taking any other remedy available under on the ground that the original defendant absented himself from the proceedings of the suit after appearance as it had no longer any interest in the 8 l subject of dispute or did not purposely take interest in the proceeding or colluded with the adversary or any other ground permissible under iaw and further as follows:
10. Procedure in case of assignment be_foI'er».fi'na1 order in suit.{1) In other cases of an creation or devolution of any pendency of a suit, thei's_t_1it rnay; by Court, be continued by againstlthe"'pers.lo;n to or upon whom such interesit"l'1a,s: clorne or devolved.
(2) the attachment of an appeal th:,erefrlorn5'V_., deenied to be an interest entitling' who procured such attachnient to tl:.¢'llt>;e.i1efit of sub--ru1e {L}. vvlanguaygenf Rule 10 referred t above does vtsuggest that leave can be sought by that alone upon whom the interest has it It simply says that the suit may be continued by the person upon Whom such an if '"--.interest has devolved and this applies in a case vvhere the interest of plaintiff has devolved. Likewise, in a case where interest of defendant has Z 20 devolved, the suit may be continued against such a person upon whom interest has devolved,VVbut'ein either eventuality, for continuance of against the persons upon whom the i1'1.terestVVlh--as.'.4:
devolved during the pendeneyof the"suite;-VI,ieavejgo}«.my it the court has to be obtainedl, If laid "down leave can be obtained1.by_.thafpersonagalonelupon whom interest of party""toj'ithe has devolved during its pendpencyf' may be preposterous resultsassuclilladipartypmight not be knowing about Vcorisequently not feasible "for leavejland if a duty is cast an eventuality he would "--b>y..Vthe"'*d.ec%ree even in cases of failure _for::leaV'e'. As a rule of prudence, initial ciuty plaintiff to apply for leave in_case"'the'.factu1u'":of devolution was within his a AAor'w:th due diligence could have been lu1o_vm=.,_by___ him. The person upon whom the devolved may also apply for such a A"-leave' that his interest may be properly rep,resented as the original party, if it ceased to it Ilhave an interest in the subject matter of dispute virtue of devolution of interest upon another person, may not take interest therein, in ordinary S course, which is but natural, or by colluding with the other side. If the submission of Shri accepted, a party upon whom intefrestggs..__'I1la_sV"
devolved, upon his failure to apply for be deprived from challenging*' »cogrre4ctniess'4of' decree by filing a properly c'onst'i'tuted._s'uit ground that the original .party°h_a'ving invterjestf in the subject of dis'pute, di(l._f_ not properly prosecute or defenel thel"l'it-igation' or,fi'ir1'~doing so, colluded with the"'*advei"sar_§.'.ufllingrtother party, in our view, may alsov:'seel«:- for example, where plaintiff' s'uit"'for':~fpartition and during its undivided interest in ,the {3Vopa1'cerfary in favour of the cointestirigv'defer1dant',*--in that event the contesting defendant the interest of the original plaintiff " hasdevolved has no cause of action to ._':I;".1"0,-"E':_,A€.3(,'u'[€ the'v--suit, but if there is any other co» sharer '*.vho__'is supporting the plaintiff, may have a a,ct'ion to continue with the suit by getting A *---hirnself transposed to the category of plaintiff as it is " vvell settled that in a partition suit every if 'defendant is plaintiff, provided he has cause of 'action for seeking partition. Thus, we do not find any substance in this submission of learned 6 Ix.) l\.) counsel appearing on behalf of the appellant __and hold that prayer for leave can be made not onllyplplby the person upon whom interest has devolved','__fpi;1t_l"
also by the plaintiff or any other party'~l.or.person ll interested." o It was on that footing, thatpthe was:Valylo"wed;:."'v_l "
13. in Bahulal respondent No.1 had filed a of estate of his deceased--pare_n'ts, whoi' 'parents of the other . pelnldency of the suit.
respondent'A'~~:ll\loiiIi3 plaintiff, filed an applioation the appellants as parties to the suitfllwho eh~all'enge'd the alienation of two items oi' th'el*p1j<;e)l:perties'.l""That application was allowed and the permitted to be amended, whereby, the apjpellants;1..V_*who were before the Apex Court, were impleaded as defendants to the suits inspite of their l"--ll_AAobpje'Ctions that, respondent No.8 was a Company, in Wwhich, the appellants were only shareholders and that. 3 they were not in any way reiated to the parties _to the suit and therefore, the order was sought ' 1.'.
questioned, on the ground that in 101'" y administration of the estate»~~of_ aim tiled' transactions entered into by could not be called into Vq--u_:e'stion'V'and those' with Whom such transacti0'irs,_:'had_flbeeneritered into, were not necessary part:a¢s§' held that in an administration considering the grant of having an interest in the e:s'tat'e' towadzminister the estate, has also extent of the estate of the deCf"ised the' of his death to facilitate the of thvemestate to all the heirs of the deceased. called upon to determine the right and title of__vt12e.f~parties in the properties of the estate, but to ascertain the extent of the properties of the estate. it 'Consequently, the impleadment of persons who may be ~~-involved in some transaction or the other concerning 3 i the estate, may become necessary parties in the administration suit and accordingly, the appeal was dismissed.
14. From a reading of the above ca;s'e"<la_si,: 51.: is seen that on facts, none of the above jud--,§rn,eiits«relate». to the fact situation pertaining to_-A-the dpresent'"ea_sex;on hand. Insofar as the addition of 'partiesiv'u'1id»e.rQrder Rule 10 CPC is concerned, ..l}\p.e;: Clourtvnin the case of Razia Begum Vs. Beg.u;n"," 1958 SC 886, has held as follows':
oi'-aidvdition of parties under Rule 10 oi"__Order»_i1 'Code of Civil Procedure, is __ gene1=al1y.n'0tA'one°uof initial jurisdiction but of a judicial? discretion to be exercised in View of all the 3 "and circumstances of a case: that in a suit * property the party sought to be added A shoiuldlrllhave a direct interest as distinguished from .. aieoilnmercial interest in the subject-matter of a _ iitigation, and that where the subject--matter of a 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 Q EU U1 of the opinion that by adding that party, it would be in a better position effectually and completely"*.to adjudicate upon the controversy. The Court held that Order 1, Rule 10(2) requireslg r-
$ and the Division Bench of they construction."
Court, in the case of Orsfl Vs. Chappidi Naraplfieddy---ari§i. Cirs. 2006-..(3}'§ALD 516 has held as follows:
"From éIl'}1*,.,.eon§?e(}tu's 20f' "--all--.....the aforesaid jud," "to._L1ch«ijng"' ~u_._1§on' present aspect, would emerge: Firstly, for the: purpose." a transferee pendente 1ite;sthe,Vfact_slland. c3;rcL1.mstances should be gone "into aridbasing on the necessary facts, the g Cjauiig canljjerrnit such a party to come on 're:cord.r'either under Order 1 Rule 10 C.P.C. or r 22 Rule 10 C.P.C., as a general p'rinc.iplle: Secondly, a transferee pendente lite is " not entitled to come on record as a matter of ,, right: Thirdly, there is no absolute rule that it such a transferee pendente lite, with the leave of the Court should, in all cases, be allowed to S 26 come on record as a party; Fourthly. the impleadment of a transferee pendente lite would depend upon the nature of the suit and appreciation of the material available on record_;__ Fifthly, where a transferee p€IlC1€I'1t€, lite does ask for leave and come on record that obviously be at his peril, and the suit"A.rnay:Aibe'll improperly conducted by the..pl,aintiff"ori Sixthly, merely becauseg: f pendente lite does not cornefion concept of his (transferleep pehridentel'lite}Tnotl:
being bound by the does larisefiand consequently he Arvifould.'_lAbe§.bpouridby the of the litigation, thougii fqrirepresented; Seventhljgfthe s.aleV'ii<ai1sacti.oI1V-peridente lite is '_hit of Section 52 of the l"i<an'sfer* Act; and, Eighthly, a transfereeplp_endente lite, being an assignee of interest" inlilthei property, as envisaged under & l of C.P.C., can seek leave of the it i. t:o"_f:ome on record on his own or at the ' instfancelof either party to the suit".
" From a reading of Section 52 of the Transfer 01' Projfiz'-erty Act, where during the pendency of the suit, the H__}l)I'Op€1"lZy which was the subject matter of the suit, can 3 J1'/apddt' t V
17. Further, the judgment and decree that may ultimately be rendered is, in respect of the with which it was alleged that the 4' seeking to interfere. Therefore, 9 j applicant has sufficient inteitesti'-A.'tb'd pfctect property from such int,erfei=en~ce the and hence, the trial Co'1.1_rt Was'j.iistified inV"'a1i'cWing the application by the AccQrd.Vin§,EIy,w' the Writ paetiticiipdisw dismissed. Sd/1, Iudge