Karnataka High Court
Sri M Ramaiah vs Sri Chinnappa Since Deceased By His Lr'S on 29 November, 2022
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RSA No. 2056 of 2007
C/W RSA No.2057 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO.2056 OF 2007 (SP)
C/W
REGULAR SECOND APPEAL NO. 2057 OF 2007 (INJ)
BETWEEN:
SRI M. RAMAIAH
SINCE DEAD BY LR'S.
1(a) SMT.JAYAMMA,
W/O LATE RAMAIAH,
AGED ABOUT 70 YEARS.
1(b) SRI H.R. VIJAYAKUMAR,
S/O LATE RAMAIAH,
AGED ABOUT 52 YEARS.
1(c) SRI S.SRINIVAS
S/O LATE RAMAIAH,
AGED ABOUT 47 YEARS.
APPELLANTS 1(a) to 1(c)
ARE RESIDING AT NO.28,
REDDY'S COLONY, HONNENAHALLI VILLAGE,
RAJANAKUNTE POST, YELAHANKA,
Digitally signed BENGALURU - 560 064.
by BELUR
RANGADHAMA 1(d) SMT.JALAJAKSHI,
NANDINI
Location: HIGH
W/O RAJAPPA,
COURT OF AGED ABOUT 45 YEARS,
KARNATAKA RESIDING AT KEMPENAPALYA,
KANCHIGANAHALLI POST,
BIDADI HOBLI,
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RSA No. 2056 of 2007
C/W RSA No.2057 of 2007
RAMANAGARA DISTRICT - 562159.
(CAUSE TITLE AMENDED AS PER COURT ORDER DT: 27.05.2022)
...APPELLANTS
(COMMON IN BOTH APPEALS)
(BY SRI. V. F. KUMBAR., ADVOCATE)
AND:
SRI CHINNAPPA,
SINCE DECEASED BY HIS LR'S.
1. SMT.MUNIANJANAMMA,
SINCE DEAD REPRESENTED BY LR'S
WHO ARE ALREADY ON RECORD
V/O DATED 23.09.2021 R2
TO R6 ARE THE LRS OF R1
2. SMT.SANJEEVAMMA H. C.,
D/O. LATE CHINNAPPA,
W/O. RAMAKRISHNAPPA
AGED ABOUT 56 YEARS.
3. SRI HANUMAREDDY H. C.,
S/O. LATE CHINNAPPA,
AGED ABOUT 54 YEARS.
4. SMT. MUNIYAMMA H. C.,
D/O. LATE CHINNAPPA,
W/O. LATE NAGAREDDY,
AGED ABOUT 52 YEARS.
5. SRI MUNIREDDY H. C.,
S/O. LATE CHINNAPPA,
AGED ABOUT 50 YEARS.
6. SMT.LAKSHMAMMA H C,
D/O. LATE CHINNAPPA,
W/O. ESHWAR REDDY,
AGED ABOUT 42 YEARS,
ALL THE RESPONDENTS ARE
RESIDING AT HONNENAHALLI VILLAGE
RAJANUKUNTE POST,
YELAHANKA TALUK,
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RSA No. 2056 of 2007
C/W RSA No.2057 of 2007
BENGALURU NORTH TALUK - 560 024.
7. SRI K.S.KRISHNAREDDY,
S/O LATE K. SUBBARAYAPPA,
AGED ABOUT 56 YEARS,
RESIDING AT CHILAKALANERPU VILLAGE,
CHINTAMANI TALUK,
CHIKKABALLAPUR DISTRICT
(EARSTWHILE KOLAR DISTRICT)
PRESENTLY RESIDING AT,
NO.4, VRINDHAVAN,
KRISHNAREDDY RESIDENCIES,
KUMBARAKUNTE CROSS,
RAJANAKUNTE-MADAPPANAHALLI ROAD,
RAJANAKUNTE, BENGALURU NORTH TALUK,
BENGALURU - 560 064.
(AMENDMENT CARRIED OUT AS PER COURT ORDER DT: 29.11.2022)
...RESPONDENTS
(COMMON IN BOTH APPEALS)
(BY SRI.S.SREEVATSA, SR., ADVOCATE
A/W K.R.NAGARAJA, ADVOCATE
AND SRI.S.VEMAREDDY, ADVOCATE FOR R2 TO R6
SRI.K.N.SHIVAREDDY, ADVOCATE FOR R7,
V/O DATED 23.09.2021-R2 TO R6 ARE TREATED AS LRS OF R1)
THIS RSA NO.2056/2007 IS FILED U/S 100 CPC AGAINST THE
JUDGMENT AND DECREE DATED 26.07.2007 PASSED IN
R.A.NO.55/2001 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT-II, BANGALORE RURAL DIST, BANGALORE, ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 28.02.2001 PASSED IN O.S.NO.191/1996 ON THE FILE OF
THE PRL. CIVIL JUDGE (JR. DN.) BANGALORE.
THIS RSA NO.2057/2007 IS FILED U/S 100 CPC AGAINST THE
JUDGMENT AND DECREE DATED 26.07.2007 PASSED ON CROSS
OBJECTIONS IN R.A.NO.55/2001 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-II, BANGALORE RURAL DISTRICT,
BANGALORE, DISMISSING THE CROSS OBJECTIONS FILED AGAINST
THE JUDGMENT AND DECREE DATED: 28.02.2001 PASSED IN
O.S.NO.519/1994 ON THE FILE OF THE PRL.CIVIL JUDGE (JR.DN),
BANGALORE RURAL DISTRICT, BANGALORE DISMISSING THE SUIT
FOR PERMANENT INJUCTION.
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RSA No. 2056 of 2007
C/W RSA No.2057 of 2007
THESE APPEALS, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel Sri.V.F.Kumbar, appearing for the appellants and the learned Senior counsel Sri.S.Sreevatsa along with learned counsel Sri. K.R. Nagaraja and the learned counsel Sri. Vema Reddy, appearing for respondents No.2 to 6, and the learned counsel Sri.K.N.Shivaredy, appearing for respondent No.7.
2. RSA No.2056/2007 is filed by the plaintiff in O.S.No.191/1996 on the file of the Principal Civil Judge (Jr. Dn.) Bangalore Rural district, Bangalore.
3. The said suit was filed seeking specific performance to enforce the agreement dated 18.03.1988 alleged to have been executed by the defendant in respect of Sy. No.28/1 measuring *1 acre situated in Itgalpura village, Bangalore North taluk.
4. The suit was resisted by the defendant on the premise that a blank signed paper, signed by the defendant *Corrected vide Court order dated:20.12.2022.
-5-RSA No. 2056 of 2007 C/W RSA No.2057 of 2007 which was handed over to the plaintiff as a security for the loan transaction is stated as an agreement for sale and accordingly he has prayed for the dismissal of the suit.
5. It is also relevant to note that O.S.No.519/1994 is filed by the very plaintiff against the same defendant seeking relief of injunction to protect his possession in respect of the same property on the premise that he has already taken possession of the property based on the agreement dated 18.03.1988. The suit was initially decreed exparte. Later on, the application filed by the defendant, the exparte decree was set aside, and subsequently, both O.S.No.519/1995 and O.S.No.191/1996 are clubbed together and common evidence was recorded and decided by a common judgment.
6. The Trial Court decreed the suit for specific performance. However, the relief of injunction is rejected on the premise that the plaintiff's possession over the suit property is not established.
7. Defendant filed an appeal challenging the judgment and decree passed in a suit for specific performance in -6- RSA No. 2056 of 2007 C/W RSA No.2057 of 2007 R.A. No.55/2001 on the file of Fast Track Court-II, Bangalore Rural District. In the said appeal there was cross-objection by the plaintiff, though it is not numbered.
8. The Fast Track Court heard the cases together and in terms of judgment and decree dated 26.07.2007 allowed the appeal filed by the defendant and rejected the cross-appeal filed by the plaintiff. The First Appellate Court concluded that the agreement dated 18.03.1988 is interpolated to save the period of limitation and accordingly the First Appellate Court concluded that the suit is barred by limitation. Both the Courts held that the suit property is sold during the pendency of the suit for injunction and the transaction is hit by the doctrine of lis pendence.
9. Aggrieved by the judgment and decree allowing the appeal and dismissing the cross-objection, the plaintiff is in this regular second appeal.
10. These appeals were admitted on 12.10.2009 to consider the following substantial question of law: -7- RSA No. 2056 of 2007 C/W RSA No.2057 of 2007
Whether on facts the lower appellate Court has erred in law in holding Ex.P2- agreement of sale materially tampered?
11. On 12.06.2021, an application is filed under Order I Rule 10 sub-rule 2 of Code of Civil Procedure, 1908 by the applicant who seeks to come on record as respondent No.7. It is the case of the applicant that he has purchased the property- in question under registered sale deed dated 26.11.1994. The applicant seeks to come on record on the premise that by the time the suit for specific performance was filed in the year 1996, he had already acquired the title over the property based on the registered sale deed dated 26.11.1994.
12. This application is opposed by the learned counsel for the appellant. Learned counsel for the appellant would submit that the property was purchased on 26.11.1994 when the suit for injunction was filed and the application seeking was pending before the Trial Court. He would submit that the purchaser has purchased the property during the pendency of the appeal is governed by the rule of lis pendency. Based on -8- RSA No. 2056 of 2007 C/W RSA No.2057 of 2007 this, he would submit that respondent No.7 is not a necessary party to the proceeding.
13. Learned counsel for the proposed respondent No.7 would submit that the judgment in a suit for injunction binds only the vendor and his purchaser to the extent that the vendor should not interfere in the possession of the property which is alleged to be in the hands of the plaintiff and not beyond that. He would also rely upon the judgment of this Court in the case of Smt. Narainamma vs. H.M.Krishnappa reported in ILR 2015 Karnataka 474. By referring to the said judgment he would contend that in the suit for specific performance of a contract, the person who has purchased the property prior to the filing of the suit is also a necessary party to the suit as certain defences are to the purchaser who has purchased the property without notice of prior agreement for sale.
14. This Court finds that there is merit in the submission of the learned counsel for proposed respondent No.7. The respondent no. 7 has purchased the property before filing the suit for specific performance. Though the suit property is purchased when an earlier suit for injunction was pending -9- RSA No. 2056 of 2007 C/W RSA No.2057 of 2007 hearing, the right to contest the suit for specific performance is not taken away. The defence under Section 19(1)(b) of the Specific Relief Act is available to him if takes such a defence. For this reason, this Court finds that the presence of respondent No.7 is also necessary for the adjudication of the case on hand.
15. Accordingly, I.A.No.1/2021 for impleading proposed respondent No.7 has to be allowed, and accordingly the same is allowed.
16. Since this Court is of the view that the presence of present respondent No.7 is impleaded is necessary for adjudication of the case on hand, as he claims to have acquired right over the property based on the registered sale deed dated 26.11.1994, the matter requires to be remanded to the Trial court by setting aside the judgment and decree passed by the Trial Court as well as the judgment and decree passed by the First Appellate Court.
17. This Court has also considered the contentions raised before the Trial Court as well as the First Appellate Court
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RSA No. 2056 of 2007C/W RSA No.2057 of 2007 and has also considered paragraph No.3 in the plaint in O.S.No.519/1996. Admittedly, the suit for injunction was filed before the Trial Court in the first instance. Plaintiff would contend that the defendant tried to interfere in the possession of the property with an intention to alienate the suit schedule property as such he was constrained to file a suit for injunction. Thereafter the suit was decreed and later on an application filed by the defendant to set aside the exparte decree application was allowed and the exparte decree was set aside. Thereafter he filed a suit for specific performance.
18. Under this circumstance, this Court is of the view that the Trial Court has to frame specific issues as to whether the 2nd suit seeking specific performance is hit by Order II Rule 2 of the Code of Civil Procedure. No such issue was framed by the Trial Court. Hence, this Court would direct the Trial Court to frame the specific issue "whether the 2nd suit for specific performance is hit by Order II Rule 2 of the Code of Civil Procedure? Trial Court shall give a finding on this issue.
19. It is also made clear that since respondent No.7 is allowed to come on record, Trial Court shall permit respondent
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RSA No. 2056 of 2007C/W RSA No.2057 of 2007 No.7 to file a written statement and cross-examine the plaintiff and his witnesses, if they are alive. Respondent No.7 is also at liberty to lead evidence in support of his contention and the plaintiff is permitted to cross-examine respondent No.7 who claims to have purchased the property on 26.11.1994.
20. As far as finding relating to the lis pendency is concerned, the sale in favour of the 7th respondent admittedly has taken place during the pendency of the suit for injunction. The rule of lis pendency cannot be applied to reject the contention of the respondent in a suit for specific performance. However, the said rule can be applied only in respect of the injunction suit, to mean that the judgment in the suit for injunction would bind the purchaser as he is the purchaser during the pendency of the said suit. However, said rule cannot be applied to reject his claim relating to the title if he succeeds in a suit for a specific performance.
21. Since respondent No.7 is impleaded on his application before this court, it should be deemed that the suit against respondent No.7 is filed on the date of this order and not from the date of the suit.
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RSA No. 2056 of 2007C/W RSA No.2057 of 2007
22. For the aforementioned reasons, the appeal has to be allowed.
23. Accordingly, I pass the following:
ORDER
(i) The judgment and decree dated 26.07.2007 passed by the First Appellate Court in RA. No.55/2001 on the file of Fast Track Court - II, Bangalore Rural district, and the judgment and decree dated 28.02.2001 passed by the Trial Court in O.S.No.191/1996 on the file of Principal Civil Judge (Jr. Dn.) Bangalore Rural District, Bangalore are set aside.
(ii) The Trial Court shall give findings on all issues afresh in addition to the issues framed by this Court. Nothing is expressed by this Court on the merits of the case.
(iii) Since all the parties are present before this Court, parties are directed to appear before the Trial Court on *05.01.2023 without awaiting further notice from the Trial Court.
*Corrected vide Court order dated:20.12.2022.
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RSA No. 2056 of 2007C/W RSA No.2057 of 2007
(iv) The Trial Court shall endeavor to expedite the matter.
Since the matter is remanded back to give an opportunity to the proposed respondent No.7, there is no need to answer the substantial question of law.
Sd/-
JUDGE GVP