Karnataka High Court
Sri.K.Ganesh Babu vs Dr.Hafeezur Rahaman on 13 September, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE R. NATARAJ
WRIT PETITION NO.5860/2021 (GM-CPC)
BETWEEN:
SRI. K.GANESH BABU
S/O LATE SRI. KRISHNAMURTHY SETTY
AGED ABOUT 56 YEARS,
R/AT 'CHAITANYA', NO.26/1-1,
2ND CROSS, M.T.LAYOUT, 13TH CROSS,
MALLESHWARAM,
BEHIND MES COLLEGE,
BENGALURU-560 003.
...PETITIONER
(BY SRI. BIPIN HEGDE, ADVOCATE)
AND:
1. DR.HAFEEZUR RAHAMAN
S/O LATE A.ABDUL AZEEZ
AGED ABOUT 80 YEARS,
2. SHRI SHAFEEQUR RAHAMAN
S/O LATE A. ABDUL AZEEZ
AGED ABOUT 74 YEARS,
BOTH R/AT NO.559, MINA,
2ND MAIN, TEACHERS COLONY,
KORAMANGALA
BENGALURU-560 034.
3. SRI.NAJEEBUR RAHAMAN
S/O LATE A. ABDUL AZEEZ
AGED ABOUT 66 YEARS,
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R/AT AREHALLI VILLAGE,
BELUR TALUK, HASSAN DISTRICT,
PIN-573 101
4. MRS. KAMARUNNISA
D/O LATE ABDUL AZEEZ
W/O LATE ABDUL GANI
AGED ABOUT 91 YEARS,
5. MRS. FARHATH HAYATH
D/O LATE A. ABDUL AZEEZ
W/O LATE C.R.MOHD. HAYATH
AGED ABOUT 72 YEARS,
BOTH R/OF AREHALLI VILLAGE
BELUR TALUK, HASAN DISTRICT
PIN-573 101.
REPRESENTED BY THEIR GPA HOLDER
SRI. NAJEEBUR RAHAMAN
AGED ABOUT 66 YEARS,
R/OF AREHALLI VILLAGE,
BELUR TALUK, HASSAN DISTRICT,
PIN-573 101.
6. SRI. SYED AFROZ
S/O LATE SYED GHOUSE
AND LATE SMT.RAHAMATHUMMISA
AGED ABOUT 67 YEARS,
R/O AREHALLI VILLAGE,
BELUR TALUK, HASSAN DISTRICT,
PIN-573 101.
7. SRI. SYED SHERAZ
S/O LATE SRI. SYED GHOUSE AND
LATE SMT.RAMAHATHUMMISA
AGED ABOUT 67 YEARS,
8. MRS. SAIRA RAFATH
D/O LATE SRI. SYED GHOUSE AND
LATE SMT. RAHAMATHUNNISA
AGED ABOUT 51 YEARS,
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BOTH ARE RESIDENTS OF
AREHALLI VILLAGE, BELUR TALUK
HASSAN DISTRICT
PIN-573 101
REPRESENTED BY GPA HOLDER
SRI. SYED AFROZ
S/O LATE SYED GHOUSE,
AGED ABOUT 67 YEARS,
R/O AREHALLI VILLAGE,
BELUR TALUK, HASSAN DISTRICT
PIN-573 101.
9. SRI. T.V.NARAYANA MURTHY
S/O T.V.VENKATARAMAIAH
AGED ABOUT 59 YEARS,
R/AT NO.7, 3RD CROSS,
SHANKARAPURAM,
BENGALURU-560 004.
10 . SMT. S.KUSUMA KUMARI
W/O SRI. S.VENKATESHWARLU,
AGED ABOUT 68 YEARS,
R/AT FLAT NO.201,
USHA KIRAN APARTMENT,
NO.25, HAUDINE ROAD, ULSOOR,
BENGALURU-560 042.
11 . SMT. PARIJIT PRAKASH
W/O P.N.PRAKSH
AGED: MAJOR,
R/AT GANAKALLU VILLAGE,
BENGALURU SOUTH TALUK
BENGALURU DISTRICT-560072.
12 . SMT. RAMAMMA
W/O LATE SONNE GOWDA
AGED ABOUT 65 YEARS,
R/O GANAKALLU VILLAGE,
KENGERI HOBLI, BENGALURU SOUTH,
BENGALURU DISTRICT-560072.
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13 . SRI .GALICHOUDAPPA
S/O LATE GALIYAPPA
AGED ABOUT 90 YEARS,
R/O GANAKALLU VILLAGE,
KENGERI HOBLI,
BENGALURU SOUTH TALUK-560072.
...RESPONDENTS
(BY SRI. V.B.SHIVAKUMAR, ADVOCATE FOR RESPONDENT
NO.9;
SRI. RAMESH P. KULKARNI, ADVOCATE FOR RESPONDENT
NO.10;
NOTICE SERVED ON RESPONDENT NO.3;
VIDE ORDER DATED 18.11.2021 SERVICE OF NOTICE TO
RESPONDENT NOS.11 TO 13 STAND WAIVED;
VIDE ORDER DATED 18.11.2021 ISSUANCE OF FURTHER
NOTICE TO RESPONDENT NOS.1 TO 8 STAND DEFERRED;
VIDE ORDER DATED 24.03.2021 COPY SERVED ON SRI.
PRASHANTH CHANDRA S.N., ADVOCATE FOR RESPONDENT
NOS.1 TO 8 IN TRIAL COURT)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 06.03.2021 VIDE ANNEXURE-A
PASSED BY THE 24TH ADDITIONAL CITY CIVIL JUDGE
BENGALURU CITY, CCH-6 IN O.S.NO.9897/2006 AND
CONSEQUENTLY ALLOW THE IA NO.11 FILED BEFORE THE
TRAIL COURT BY THE PETITIONER/APPLICANT UNDER ORDER
22 RULE 10 READ WITH SECTION 151 OF C.P.C.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
The petitioner being the applicant in O.S.No.9897/2006 before the XXIV Addl. City Civil and Sessions Judge, Bengaluru (CCH-6), has filed this writ petition challenging the correctness of the order dated 06.03.2021 passed therein, by which, an application filed by him under Order XXII Rule 10 of the Code of Civil Procedure, 1908 (henceforth referred to as 'CPC' for short) to substitute him as a plaintiff, was rejected.
2. The parties shall henceforth be referred to as they were arrayed before the Trial Court.
3. The suit in O.S.No.9897/2006 was filed to declare that the plaintiffs are the absolute owners and for perpetual injunction in respect of land measuring 1 acre 5 guntas in Sy.No.3/3, which was re-numbered as Sy.No.3/3B and later incorporated as Sy.No.3/3B1 in the revenue records and situate at Ganakallu village, Kengeri Hobli, Bengaluru South Taluk.
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4. The petitioner herein purchased the suit property from the plaintiffs in terms of a sale deed dated 06.05.2016. He therefore, filed an application under Order XXII Rule 10 of CPC seeking substitution in the place of the plaintiffs as an assignee.
5. This application was opposed by the defendants, who contended that the petitioner was a pendente lite purchaser and therefore, did not step into the shoes of the plaintiffs. They claimed that the sale deed dated 06.05.2016 was a bogus document. They further claimed that the petitioner had allegedly entered into an agreement on 14.08.2014 and was fully conscious of the pendency of the suit and later, got a sale registered on 06.05.2016. They contended that the petitioner was a fence sitter, who waited for more than 4½ years before filing an application for substitution in the place of the plaintiffs. They claimed that the plaintiffs filed an application on 02.11.2020 to implead the petitioner but withdrew it without reserving liberty. Thereafter, the 7 petitioner filed the present application. They claimed that the petitioner was not entitled for substitution in the place of the plaintiffs.
6. The Trial Court after considering the contentions urged, held that the petitioner being a power of attorney from the plaintiffs had executed a sale deed conveying the suit property to himself. It held that the claim of the plaintiffs was contested by the defendants and the transaction in favour of the petitioner was during the pendency of the suit and therefore, in view of the judgment of the Hon'ble Supreme Court in Amit Kumar Shaw and another vs Farida Khatoon and another [(2005) 11 SCC 403] held that an alienee pendente lite may or may not be joined as a party to the proceeding. It also referred to a judgment of the Madras High Court in Raghunath Dass Harakchand vs. Purushotham Dass [AIR 1936 Madras 7414] that the Court cannot exercise discretion to allow an applicant to come on record when there is unexplained delay in doing so. The Trial Court 8 hence rejected the application in terms of the order, which is impugned in this petition.
7. The learned counsel for the petitioner submitted that there is no prohibition for a person to purchase a property which is the subject matter of the suit but, such purchaser is bound by the final outcome of the suit and his rights will always be subject to the final outcome of the suit. He submitted that the petitioner had purchased the suit property from the plaintiffs and therefore, was entitled to be substituted in the place of the plaintiffs.
8. The learned counsel for the respondent Nos.9 and 10 reiterated the contentions that they urged before the Trial Court.
9. I have considered the submissions made by the learned counsel for the parties.
10. As rightly contended by the learned counsel for the petitioner, Section 52 of the Transfer of Property Act, 9 1882 does not prohibit the alienation of the property, which is the subject matter of the proceedings. It only subjugates the right of such purchaser to the final outcome of the suit and he would be bound by the same. In the case on hand, the plaintiffs had allegedly executed a power of attorney and an agreement of sale based upon which the petitioner had executed a sale deed conveying the suit property in his own name. Therefore, the petitioner in a way is an assignee of the suit property.
11. Order XXII Rule 10 of CPC provides for representation of such party to a suit by an assignee and the same is extracted below:-
"10. Procedure in case of assignment before final order in suit.--(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an 10 interest entitling the person who procured such attachment to the benefit of sub-rule (1)."
12. The Hon'ble Apex Court in the case of Thomson Press (India) Limited vs. Nanak Builders and Investors Private Limited and others (2013) 5 SCC 397 has considered the position of a transferee pendente lite and had held that such transferee steps into the shoes of the party in a suit and therefore, is entitled to pursue the suit as an assignee and representative in interest. Likewise, the Hon'ble Apex Court in the case of Amit Kumar Shaw, supra, has reiterated the same and held as follows:
"12. Under Order 22 Rule 10, no detailed inquiry at the stage of granting leave is contemplated. The court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution. The question about the existence and validity of the assignment or devolution can be considered at the final hearing of the 11 proceedings. The court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit."
13. A Co-ordinate Bench of this Court in Mrs. Pushparekha vs. Smt. Abhirami Srikanth and others [ILR 2015 KAR 4521] has also held that an assignee is entitled to seek for substitution in a proceeding. Though the plaintiffs have not disowned the agreement and Power of Attorney in favour of the petitioner and have not contested the sale in his favour, the Trial Court has suspected the legitimacy of the sale deed, which was wholly unjustified.
14. In view of the above, the petitioner was entitled to come on record as an additional plaintiff in the suit. However, since the sale deed under which the petitioner claims to have purchased the suit property shows that such sale deed was executed by him conveying the suit property unto himself, it is appropriate to permit him to come on record as a co-plaintiff instead of 12 substituting him in the place of the plaintiffs. This would also avoid confusion as the pleadings in the suit would be with reference to the plaintiffs and not to the petitioner herein.
15. In that view of the matter, this writ petition is allowed. Consequently, the impugned order dated 06.03.2021 passed by the XXIV Addl. City Civil and Sessions Judge, Bengaluru, in O.S.No.9897/2006 is set aside. The petitioner is permitted to come on record as a co-plaintiff in the suit. It is open for the defendants to file their additional written statement, if necessary and the Trial Court may proceed to adjudicate the suit in accordance with law and as expeditiously as possible.
Sd/-
JUDGE PMR