Karnataka High Court
Ravindra vs Smt.Lalitha on 27 July, 2022
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WP No. 106791 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
WRIT PETITION NO. 106791 OF 2016 (GM-CPC)
BETWEEN:
RAVINDRA
S/O BASAVANTHAGOUDA MALIPATIL
AGE: 50 YEARS,
OCCUPATION: AGRICULTURAL,
RESIDENT OF KAVALOOR,
TQ: KOPPAL,
DISTRICT: KOPPAL.
...PETITIONER
(BY SRI. D L LADKHAN.,ADVOCATE)
AND:
1. SMT.LALITHA
W/O JADEGOUDA PATIL
AGE: 60 YEARS, OCCUPATION: AGRICULTURE
AND HOUSEHOLD,
ANNAPURNA
CHINNAPPA R/O GOURI ANGALA STREET
DANDAGAL KOPPAL.
Digitally signed by
ANNAPURNA CHINNAPPA
TQ & DISTRICT: KOPPAL.
DANDAGAL
Location: HIGH COURT OF
KARNATAKA, DHARWAD
BENCH, DHARWAD 2. SIDDANAGOUDA
S/O JADEGOUDA MALIPATIL
AGE: 35 YEARS, OCCUPATION: AGRICULTURE
R/O GOURI ANGALA STREET
KOPPAL.
TQ & DISTRICT: KOPPAL.
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WP No. 106791 of 2016
3. BHARANGOUDA
S/O JADEGOUDA MALI PATIL
AGE: 33 YEARS,
OCCUPATION: AGRICULTURE
R/O GOURI ANGALA STREET
KOPPAL.
TQ & DISTRICT: KOPPAL.
4. SMT.SHIVAGANGA @ NIRMALA
W/O MAHANTHGOUDA PATIL,
AGE: 30 YEARS,
OCCUPATION: HOUSE WIFE
R/O. HARTHI.
TQ: GADAG.
5. SMT.SHIVALEELA
W/O N. SHIVARAJ
AGE: 28 YEARS,
OCCUPATION: HOUSEWIFE
R/O. KARIGNUR,
TQ. HOSPETE
DIST: BELLARY.
6. AJMEER ALI
S/O KHAJAMAINUDDIN
AGE: 33 YEARS,
OCCUPATION: AGRICULTURE
R/O. HALEBANDIHARLAPUR,
TQ: KOPPAL.
DISTRICT: KOPPAL
...RESPONDENTS
(R1 TO R3 & R6 SERVED;
R4 & R5 HELD SUFFICIENT)
THIS WP IS FILED UNDER ARTICLE 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
PASSED ON DATED:23.07.2016 PASSED BY SENIOR CIVIL
JUDGE, KOPPAL, ON I.A.NO.11, AT ANNEXURE-E, AND ALLOW
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WP No. 106791 of 2016
THE APPLICATION FILED BY PETITIONER AT I.A.NO.11/2015
UNDER ORDER 1 RULE 10(2) READ WITH SECTION 151 OF
CPC DATED:26.08.2015 AT ANNEXURE-C IN O.S.NO.64 OF
2013 PENDING ON THE FILE OF SENIOR CIVIL JUDGE,
KOPPAL AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY. THE COURT MADE THE
FOLLOWING.
ORDER
The petitioner aggrieved by the order on I.A.No.11/2015 dated 26.08.2015 passed in O.S.No.64/2013 by the Senior Civil Judge, Koppal, has filed this writ petition.
2. Brief facts leading as to filing of this writ petition are as under:
The petitioner filed a suit for specific performance of contract against respondent Nos.1 to 5. During the pendency of the suit, respondent Nos.1 to 5 sold the said suit property in favour of respondent No.6. The petitioner filed an application for impleading respondent No.6 as proposed defendant No.6. Proposed defendant is the proper and necessary party to the suit. The said -4- WP No. 106791 of 2016 application was opposed by respondent No.6 by filing a objection. The trial Court after hearing the parties, rejected the application vide order dated 23.07.2016. The petitioner aggrieved by the same, has filed this writ petition.
3. Inspite of service of notice, none appeared for the respondents.
4. Heard the learned counsel for the petitioner.
5. Learned counsel for the petitioner submits that the trial Court has committed an error in rejecting the application filed by the petitioner. He submits that in order to buttress his argument has placed the reliance on the decision of this Court in W.P.No.203791/2018 disposed of on 09.01.2019 in the case of Allisab V/s Mallappa and others. Hence, on these grounds, he prays to allow the writ petition.
6. Heard and perused the records and submissions made by the learned counsel for the petitioner. -5- WP No. 106791 of 2016
7. It is not in dispute that the petitioner has filed a suit for specific performance of contract against respondent Nos.1 to 5. During the pendency of the suit, respondent Nos.1 to 5 have sold the suit schedule property in favour of respondent No.6. The petitioner filed an application under Sub-rule (2) of Rule (10) of Order 1 of CPC to implead respondent No.6 as proposed defendant No.6. In order to consider the contention of the parties, it is necessary to consider Sub-rule (2) of Rule (10) of Order 1 CPC.
8. Sub-rule (2) of Rule (10) of Order 1 CPC reads as under:
"(1) XXX (2) Court may strike out or add parties-The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of -6- WP No. 106791 of 2016 an person wpho ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."
9. Sub-rule (2) of Rule (10) of Order 1 CPC empowers the Court at any stage of the proceedings, either upon or without an application of either party, to join or strike off the name of such persons, whether as plaintiff or defendant, as may be necessary, in order to enable such Court to effectually and completely adjudicate and settle all the questions involved in the suit. Question of addition of a party under Rule 10 of Order 1 CPC is one of judicial discretion, which has to be exercised in the facts and circumstances of each case that may be obtained. There cannot be any straight jacket formula in this regard. A person may be added as a party to the proceedings, either as plaintiff or defendant, wherein he/she ought to have been joined as a party has not been added or when -7- WP No. 106791 of 2016 his/her presence is necessary in order to dispose of the suit completely and effectively and expression "ought to have been joined" as found in sub-rule (2) of Rule 10 of Order 1 CPC apparently refers to necessary parties in the sense that such suit cannot be effectively disposed of without their presence on record. To put it differently, a necessary party is one in whose absence the Court cannot pass an effective decree at all. Proper party is one whose presence before the Court would be necessary to ensure that all matters in dispute are effectually and completely determined. The only reason which makes it necessary to make a person as a party to the action is, he should be bound by ensuing results and all questions arising between parties could be settled in that suit. Therefore, it must be construed that a dispute, which cannot be effectively settled unless he/she is a party, would be a necessary party. To put it differently, presence of party would be necessary to advance the cause of justice. -8- WP No. 106791 of 2016
10. The object of Order 1 Rule 10 CPC is to permit striking out or adding parties by the Court at any stage of the proceedings. In other words, a person may be added as a party under 2 contingencies; namely, (a) when he ought to have been joined as plaintiff/defendant, and is not joined as such; or (b) when, without his presence the question in the suit cannot be completely decided. The power of Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is, whether the right of a person may be affected if he is not added as a party? Such right, however, will include necessarily an enforceable legal right. Under Order 22 Rule 10 of CPC an application for substitution by a subsequent transferee can be made even though devolution of interest occurred when the case was pending for trial. The Hon'ble Apex Court in the case of Amit Kumar Shaw and Another Vs. Farida Khatoon and Another reported AIR 2005 SC 2209 has held doctrine of lis-pendens suit pending before the Court and -9- WP No. 106791 of 2016 transferee has no right to be impleaded as a party to the suit, but transferee pendente-lite can be added as a proper party, if his interest in subject matter of suit is substantial and not just peripheral. It is further held that Section 52 of Transfer of Property Act is based on equity and good conscious to protect parties to litigation against alienation by their opponent during the pendency of litigation. It has been held that a Court has a discretion to make him as a party. It is further held that:
"16. The doctrine of lis pendens applies only where the lis is pending before a Court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the Court has a discretion to make him a party. But the transferee pendente lite can15 be added as a proper party if his interest in the subject matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, whether the transfer is of the entire interest of the defendant; the latter
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having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party; under Order XXII Rule 10 an alienee pendente lite may be joined as party. As already noticed, the Court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The Court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where the transferee pendente lite is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case."
Further, the Hon'ble Apex Court in the matter of Kasturi Vs. Iyyamperumal and Others reported in (2005) 6 SCC 733 has held that a person claiming
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WP No. 106791 of 2016 independent title over the suit property would not be a necessary and proper party in a suit for specific performance and in the said case, the appellant i.e., Kasturi had filed a suit against respondents 2 and 3 therein for specific performance of a contract and in a said suit respondents 1 and 4 to 11, who were undisputedly parties to the agreement of sale filed an application to added to the suit, which came to be allowed and confirmed in revision. On the facts obtained in the said case, it has been held by the Hon'ble Apex Court that twin test are to be satisfied for determining the question as to who is a necessary party namely, (1) there must be a right to some relief against such party in respect of controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such parties. It has also been further observed by the Apex Court in the case of Kasturi (supra) that respondents 1 and 4 to 11 in the said case did not seek their addition in the suit on the strength of the contract in respect of which the suit for specific
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WP No. 106791 of 2016 performance of the contract for sale had been filed and they had based their claim on independent title and possession of the contracted property. Hence, it was held that if they are added or impleaded in the suit the scope of the suit would get enlarged from suit for specific performance to a suit for title and possession, which is impermissible in law.
11. In the instant case, at the cost of repetition it requires to be noted that the writ petitioner is intending to bring respondent No.6 who has purchased the property during the pendency of the suit. In fact the claim of respondent No.6 was not an independent and adverse to the title of respondent Nos.1 to 5. The trial Court has committed an error in rejecting the application filed by the petitioner. The issue involved in the present case is an identical to the issue involved in W.P.No.203791/2018, wherein the Co-ordinate Bench of this Court in an identical matter has allowed the application filed under Sub-rule (2) of Rule (10) of Order 1 of CPC. Considering the law laid
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WP No. 106791 of 2016 down by the Co-ordinate Bench of this Court in the case of Allisab (supra), I proceeded to pass the following:
ORDER
a) The writ petition is allowed.
b) The impugned order on I.A.No.11/2015 dated 26.08.2015 passed in O.S.No.64/2013 by the Senior Civil Judge, Koppal is hereby set aside.
c) IA filed by the petitioner is allowed.
d) The petitioner is directed to implead respondent No.6 as defendant No.6.
e) Learned counsel for the petitioner shall carryout necessary amendment in the cause title and to furnish amended cause title before the trial Court.
SD/-
JUDGE SSB