Karnataka High Court
Sri B K R Rao Byndoor S/O Puttaih vs Smt. Vandana Bhat D/O Narasimha Prabhu on 23 October, 2010
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 23": DAY OF OCTOBER, 2010 BEFORE THE HO!\l'BLE MR. JUSTICE A.N. VENUGOPALA * WRIT PETITION No.3:o67/zrom,(GfM§§§PC§); BETWEEN: Sri B.K.R.Rao Byndoor Aged about 50 years, S/o. Puttaih, Residing at No.47, Sri Krishna, Huchappa layout," 15* Main road, S\/AVG Naga,r_,_' V Near Muciaiapalya', ' Bangalore »~ 5350 PETITIONER (By Sri7.,S.!¥i;Pati"E,. i 5 AND: 1. S%rhut.i*VandanaVVif':hat., "D7o;A..iNa'rasimhafirabhu, f :*..W/Q. Raahakrishna Bhat, " V ,_AgeCi«._abo'u_t_ "48 years, *"I'~.J4 . A _ " Reside at 'No.3, '._Brindava-_na 15' 'D' Main, "Cave:-éyri "Layout, Vijayanagara, 8a"n,g:.iore -- 560 040. S"';w1t. Nayana Rao Byandoor, 'W/0. Prof. B.K.Rao Byandoor, Aged about 40 years, Residing at No.47, Srikrishna, Huchappa Layout, 13' Main road, S.V.G. Nagar, Near Moodalapalya, Bangalore --- 560 072. 3. Sri Radhakrishna Bhat, S/o. late R.H.Bhat, Aged about 55 years, Residing at No.3, Brindavana 13' 'D' Main, Caveri Layout, Vijayanaga»ra,_ Bangalore -- 560 040. ,t;rEspa;ioEms (By Sri Prakash T.HebbAa_t}--Ad'-ll. R3; A 30 R2 dispensed with) ' * * -. This writ, .p.eti.i;ion;_'is filled .und*e_r Articles 226 and 227 of the Constit§_;tio;h~'of India praying"t'o'-quash the impugned order dated' "14:~9--.':2O1.Q..,.__p.21Ss'ed,_' by the Learned XII Additional Ci.W:..€3ivil"Ju.d'Qvé .a"t"i'Ba;ngalore on I.A.i\£o.3 in 0.8.No..v8i1a58/2.009%yid-e '~.Annex*...I.re ---- E) and allow the application.' This=p_'etitio'n for preliminary hearing in 'B' group this dayp,' t§'i_é;CO*1_.J rt""made the following: .....
0*ll'a..r§e§Vp§tid¢a.:ts 1 & 3/plaintiffs have filed o.s N'o._§3V158/2009:; in the City Civil Court, Bangalore, against respondent No.2/defendant for a decree of ejectment from "'l:"_the""pIaint schedule premises. The petitioner, who is the husband of the defendant, filed I.A No.3 dated 05.08.2010 /' X' under Order 1 Rule 10(2) CPC to permit him to get impleaded as additional defendant in the suit. V.--.___The plaintiffs filed statement or objections to LA No."3':;"..."fl7g:li'e4 trial court has dismissed I.A No.3 ho|ding'::"that',':.s:'their "
applicant is not a necessarygor».pro'_peri"party'./_i'f0r... if adjudication of the matter in displigtegby plar:irig',v on the decision of the Apex in the case-.:of'~--.k'AS'i*:URI " A vs. IYYAMPERUMAL, reported'"'lri"g_i--2OQ5 (3')'--vi<.r.:<:irz 1545. Aggrieved, the applicaunt in vh:aS.Vfi|ed this writ petition.
""" 'Srif,'S.lyif.Patii;Ciearngled'advocate appearing for the petitiorierl that, LA No.3 has not been consideredlflin Vfthey';coAr<recii'V perspective by the trial court. the decision' in the case of Kasturi (supra) has _'_n'oT_ap..p:i'icat»i4on::and the reliance placed to deny the relief prayed ivn.'f."Ai:i\io.3, is wholly erroneous. Thirdly, the fact '*._that the applicant in I.A No.3 and the defendant in the suit husband & wife respectively and that they along with their children are residing in the plaint schedule premises ',»' g I being not in dispute, taking into consideration the disharmony, which had crept in the family on account of a complaint having been lodged by the wife against-«..,tia.e husband under Section 498--A and S06 IPC charge sheet being filed in C.C.No..3.2.86/20-10'andthefactu "' it that, the defendant has admitted"-i,hayirng compromise with the plaintiffs,'*-~.yvhichi.iiirouid",:dEsil_oidge.5the appiicant and his children the Vgvvscheduie premises, has not been"'Et.ep.t the ratio of the decision reportved B. P. ACHALA ANAND vs.__ A'rt%;;>'::'.,_ has not been noticedggandlt -and hence, the impugned order is Sri" T. Hebbar, learned counsei respondents 1 & 3 firstiy contended that, l"1;Axt---i',\io,'3:'&V"w--as*li;,'fiVled with maiafide intention for wrongful V -V gain; Secoiidly, there is no jural relationship between the and the applicant in LA No.3. Thirdly, the .' defenjdant in the suit was the tenant since the premises is (L was obtained on lease by her and the notice of termination was served upon her. Fourthiy, the defendantvyhalving initially remained absent and having been piaced'*-e_xp_'arte,' subsequently came forward and agreed ._and"l handover vacant possession of th,e',j.p'l.ai'n.t' property, in view of which, a,.mem0ra.nd'tim o,f"'c0.n'1pror'nise was filed on 21.07.2010. LearMfie.tj,nco_gunsé;-subinitai that, to P"0'CVaCt the DF0C€€di'i'lg.3_"$«- ar--iVAdWi.vvVi'th,_fiulteriorHnfioytive, the petitioner filed I_._A submits that, the trial the facts and circumstances.ifi_of4t.h.e No.3 being untenable, has rigihtiy Learned counsel submits that, the impug.n4ed_'o'a'der,' irrational nor illegal for being interfered .._vvith in exercise of supervisory jurisdiction
4.V_,"lr:'3i_{e;eping in view the rival contentions, I have 'v..,perusedA':. the writ petition papers. The point for co_ns'i_deration is: \§ 2* v"'« Whether the impugned order is irrational and illegal and whether the applicant is entitled to be permitted to come on record of the suit?
5. The facts which are not in dispute plaintiffs are the owners of the plaint The defendant/respondent No.2,___h,as been""the'V"ten.aratu therein, since from 15.06.2007. V'--.The_"rentcpayablfef:"iro"i'i.u_:
February 2009 is at the rate ':$ff4:2.s.4,ooo"/« .peirv:'mVo'i1--t.hV, firhe tenancy of the defendant wa_S...VV?§erm.i_Vnate.d issue of a legal notice on 16.11.2000,.' The;'pre'mvise's.,.having not been vacateiiilffafndrthe not been delivered, suit seekingvx'-eje«ctment»"wa's~.ini'sti'tuted on 21.12.2009. Despite service of sL}mV'mo,n'S. fhe'"defendant did not appear and was "VV';--v_Apia'c_e'd e->.:<parte. application made, the order placing 'exparte was set--aside. The plaintiffs and the'diefen.d'aéf;ti:;filed a memorandum of compromise petition '<._under*(V5r:der 23 Rule 3 CPC on 21.07.2010. Though the ":l.V'_defe"nidant appeared and admitted the compromise petition, since her counsel remained Ebsent and there was V'.
r none to identify her, the compromise was not recorded. LA No.3 was filed on the next date of hearing .i.e., 05.08.2010, to which statement of objections was_4vfiVl_e-d'io_n 16.08.2010.
6. In the case of B.P.ACHAE..A ANAND'7(su9iFs§§;'the,' facts were that, Smt.B.P.Acha|a Arianqd"(A_pbel1;an0t)0«was*:the":
wife of H.S. Anand (Respondent i\lo_.2}._nTheir_greiat'iorssh~ip"~_ got estranged in the year 1983.;a*n,d the---h_usba.nd'':.deseVrted 0' the wife. The matrimomal hoi-ne'was"'a.._tenanted'"premises owned by S.Appi Reddy' Husband left behindglyhilsly the tenanted premises and mo:_(e'd.. awalyulto_0"re_sii*-d.e,.--~in a lodge. Proceedings for dissolution °'efV"ina'r.ria'geV*'between the said spouses was «--..Ainit~i'.a;t'ecj'--.in the year"'1*991 and the marriage stood dissolved __b"y:a"de'cree"of divorce based on mutual consent on 3-12- ifi..SV0.:'?..g:'.nand had taken on tenancy the ground floor '\_portion_"o:.f the building from S.Appi Reddy. H.S. Anand in the house with his children, including his wife 0 smt. Achala. The landlord/S.Appi Reddy served a notice x"
1. upon H.S. Anarid on 28-11-1991 and initiated proceedings under Section 21 (1) (a) & (h) of the Karnataka':.:l'§e.nt Control Act, 1961 and demanded delivery of the premises. Eviction petition having the tenant, l~£.S.Anand appeared iri:__the.cobrt,yaad'----d'e*fevri_'d'edc the suit. On account of.'-l:_l'ie Vstrained,»"rrta,t4rii'mo;ni'ail relationship between him and 'Vh'i's_:wi_fue Ariand, he discontinued his residé:.1ce.'_Vln :itVena*nt_ed premises and was not serious__in cori.testi.nt.;"__VVthe*"'evictiVon proceedings. Smt.Achaia under Order 1 Rule 10 iy:m'pliea"drnent in the eviction petitiort so as"v.'jto:°g'ete:h-d'against the eviction. The applicatioriyvlas the trial court on 30~1--1993. Saidi§A:ordi'er waVs"<f;VuvVesti:r)ned by filing a revision petition in ith'is__an order dated 2~12~1993, the Revision 1'.Pei1«i.ii.'.'F.iri.')liV\i"~&.V'u_<"Eyl'S-'s__ aiidvied under Section 21(1)(h) of the Act by V --V hol'ti'ing""vfQ|.1a't'.V'H.S.Anarid was the tenant and directed both 9' iiqitiiet..defe'ndants to surrender the possession to the landlord 'Ab-yiiipiermitting the tenant to continue in the front portion "only. The landlord challenged the said order by filing a /T 1 revision petition. The impugned order was modi__fiee:i. Aggrieved, Smt./Achaia filed special leave petition/'apples'! before the Horfbie Supreme Court, wherein __it:.. held as foiiows: _ "13. The position of law which e1;nerges».on oo1fifj"o«if17t' reading of the Rent Control Letgisitation ifersonai Laws providing for rightttorrnainteiianeethe will include the right to residence. 'era vviti'e,-.AinVcl§uding a deserted or divorcedV:i'Wife_, r{iay"bevvte'xa_rnined. The Rent Control Law makes_v'l'provisionfigrotection of the tenant notiioniy for oWn~?b.enefit but also for the ben€fi__.t~o'f re'sidin*g:for' entitled to reside with him must provide for. A decree' 'fo:r"evictionV'vvould deprive not only the te'nant of but members of his family (including the also suffer eviction. So long , as thettttenarithvdeflends himself, the interest of his family .E":II}Es€'(1{]1b'erS Ihnerge-s"with that of the tenant and they too _VVarve'«prote.eted. The tenant cannot, by collusion or by ydeltiiberatevjirejudieial act. give up the protection of law A to Bdetrinient of his family members. So long as a decree for eviction has not been passed the members V " 4_ of the family are entitled to come to the court and seek _.:leave to defend and thereby contest the proceedings and such leave may be granted by the court if the court is satisfied that the tenant was not defending --
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10 by collusion, connivance or neglect -- or was acting to the detriment of such persons. Such a situation would be rare and the court shall always be on its guard in entertainirig any such prayer. But the existertc'e_l'o_f such a right flows from what has hereinabove and must be recognized. Pe1'sons'resitling with the tenant as rr1erI1bers""of.'his falrriily' obviously be aware of the litigati:o1c1.. will be for them to act.c'd4iligentlyl"*and capproachl:';th'e court promptly and in ariyiease be--forei.V"dpeerele of eviction is passed as dAe1.ay°<de'feats equ.ityV/Such a prayer or any disp-1 rte _so__ug;';_1~t. .t'c._'i:-_<3.l lfaised post--dec1'ee by a member of family may not be entertained:by_the§;eotirti.:" .4 it noticing the said portion of the olrduer, by a reference to para 36 and noting that,llt'i1eVre-is allcorhpromise between the spouses in ~«so5:Qjfib.3rc28s,zA2o1o',i' ''''' "on account of which the s.petitliornieflaeeused was acquitted and by making reference tot-the in the case of Kasturi (supra), has ll."-'~___V'-»dismisseri* LA No.3.
The material facts in the case of KASTURI K.""--l.l:W(si.1pra) were that, the appellant filed suit against \:2» I1 respondent Nos.2 & 3 for specific performance of a contract, entered into between the 2"" respondent acting as a power of attorney holder for the 3" responfid..e_nt_:'o_n one hand and the appellant on the other, contracted property. In the said suit, respor'i'dent_».l:\£'o«s.=1 'v 4 to 11, who were not parties toa__the~ec.ont'ra.ct','"-set'tip ciaim of independent tit|e'a_.nd p'o_ssessio'n'+'Covetilthe contracted property and appl'ica:tvi:onVVVf: to get themselves added in thesuit The trial cou rt allowed the app|ication:A.orq.:'thellorour'id'._.th:Va.t-,'V'"the appiicants were claim.i4n€;i:V ' the contracted property a-no to have a direct interest in the su i:i3'ectc~:-_'_rna_t't'e*r: and their presence would be necegssary to d"eci_d:e the controversy raised in the suit. Said lioideir _was.,:u-pheld in the revision petition and when ,...b,€u'El§StioV'ne'dv_,.oelfore the Apex Court, by noticing Section 19 of the Specific Relief Act, 1963, it was held that, the uptrovéisioh is exhaustive on the question as to who are the 'p.arti'es against whom a contract for specific performance "may be enforced and in view of the clauses (a) to (e), the 't /' rt 12 persons seeking addition in the suit for specific performance of the contract for sale who were not claiming under the vendor but are claiming adverse to the..ti:tleVof the vendor do not fall in any of the categories _ in sub--sections (a) to (e) of section 19 if Relief Act and hence are not necessarjyapiarties-. V"'Thefs_a'ida_r decision has no application *ot"4--..what'soe've.Vr na'tLiji~e..,tHo_:3the instant case, but has been mecha'nica.l_ly applied byithe trial court, while passing thVe'4--irfipAugne_d3f'o'rder:."i
9. Keeping in1.v'iawf'the__'fa_ct';thati,' the defendant and the'p'e'ti'tiotn_er'lEeing"th'e wife'"£thusband are residing in the suit'--.premis-egg.,:a:i0'ng.._:li;«.<.i.tt--: their children and that, the tenant hasf"joxi'ned',-. ha'nd's"'with the plaintiffs and filed a "V"«...Corn.p':ro;jnisez petit'io"n"'on 21.07.2010 and admitted the "'r.__e'>'<.e_cuti:on,iof,_tl}e same shows that, her actions were pre,i_utdicia,l"to'the interest of the members of the family, "V..,includi'n_g':. the applicant/petitioner. Keeping in view the 'T"_deci"s'i_on of the Apex Court in the case of B.P.ACHALA ANAND (supra), more particularly the portion extracted /,,r'' {c supra, in my opinion, the trial court has failed to exercise the jurisdiction vested in it in accordance with iavy.'.',:h:'The trial court has not examined LA No.3 in perspective, keeping in view the facts and..circums.tancels"f of the case, more particularly the fli,ing_. petition on 21.07.2010 and,th,_e adfvefrse would have brought on the me'rn_t)'ers of theiifamiiy of the defendant, more pai*ti_ct-Iarl'y spouses had differences, which lead,.,_t_o'_Vfilin_g 'com-Vplaint and the resuita nt char%:;e'«s,h:eVetv:i-n above factors, the petitioner, who in occupation of the suit premises, entitledA'-.to"'~'come on record of the suit and '3"~..,cor~i.test,.;-thesuitx'fil'e'd*"against his wife in his capacity as a ,.__ten_ant satisfying two conditions, namely: 0' (1v),'"ft_hat the tenant has given up the contest or is not interested in contesting the suit and such giving up by the tenant/wife shall prejudice the husband, who is residing I \t n the premises; and ":1 i4 (2) the scope and ambit of the contest or defence would not be on a footing higher or largel"e':tb.an that of the tenant herself.
11. In other words, the petiitioner/'_huslfibahdilwoulci-._p be entitled to raise all such pleas "end2'.fclieiirni'tri'a!s"ptiiei?leefi;jA as would have been available» to"~ithe tenarit_h'eprs'e_lf"~a.nd no * i' more, so long as, by availingVythefberlefit ofthe pfovisions under the Transfer of P'roperty'e__A}ct;, A.te-nant would have been entitled to_sta_y in_"th'e"p:rerri«ises, husband too can continue togstlay -..his.."ri:gvhtVtomresidence, subject to allfsiichpdobligations including the paymentoi'-rent/ar.reailrs--.towiiich the defendant/tenant is a su bject.
A _ the4}ess__ult, the writ petition stands allowed and the i"'irn:p--ugnedu_"o_rdi§'r"'"stands quashed. LA No.3 filed in the trial court stvands allowed. The petitioner shall be entitled to pa~rti_cipVate in the proceedings of the suit subject to the kcoridiltions stated supra and also discharge the liability to "pay the arrears of rent/damages. k *7.
15 The suit is one for ejectment and is required to be tried and disposed of expeditiously. In view of the provisions under Karnataka (Case Flow Managehje-in't'i.ih Sub-Ordinate Courts) Rules, 2005, the directed to try and dispose of the sigitexped~i'Li'ov--uslv.'f: if The plaintiffs shall adduce and«.cor_npIete'vthei.r evidence within a period of o'n:e'~..montri..fro.nj'v_;th*e"V"d'at'e a if copy of this order is plaiced on.it'hene_rec"Or_d ofthe trial court. The defendants shall addulcelli-ailid' their side of evidence with_i.nCoVri-e date the plaintiffs' side eg1id%ein'ce'jiv:,i_s Eii;dse'd'.i,:" Trse""tr'ieI court is directed to disposexiof thesuitvfithin_:lone.~month from the date the trial of thesuit is"~co'm.pV|'ete;., V A f In theeci-rvcumstances of the case, parties are directed to 'E:§'ear"th'evi.r_ refspective costs. Sd/-3 JUDGE