Karnataka High Court
Sobha Innercity Technopolis Pvt. Ltd., vs Sobha Carnation Apartment on 26 June, 2019
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NOs. 47555-47556 OF 2018 (GM-CPC)
BETWEEN:
1.SOBHA INNERCITY TECHNOPOLIS PVT. LTD.,
A COMPANY REGISTERED UNDER THE
PROVISIONS OF COMPANIES ACT,
HAVING ITS REGISTERED OFFICE
AT NO.E-106, SUNRISE CHAMBERS,
ULSOOR ROAD, BANGALORE-560042
REP BY ITS AUTHORISED SIGNATORY,
MR.N.KESHAVA MURTHY
2.SOBHA DEVELOPERS LIMITED
A COMPANY REGISTERED UNDER THE
PROVISIONS OF COMPANIES ACT,
HAVING ITS REGISTERED OFFICE
AT SOBHA, SARJAPUR-MARATHALLI
OUTER RING ROAD,
DEVARABISANAHALLI,BELLANDUR POST,
BANGALORE-560103
REP BY ITS AUTHORISED SIGNATORY
MR.N.KESHAVAMURTHY
... PETITIONERS
(BY SRI. K SUMAN, ADVOCATE)
AND:
1.SOBHA CARNATION APARTMENT
OWNERS ASSOCIATION
AT SOBHA CARNATION APARTMENT COMPLEX,
SITUATED IN SY.NO.100/7, 98/2A,
98/2B, AND 98/1 (PART) OF BELLANDURU VILLAGE,
BANGALORE-560103
REP BY ITS AUTHORISED REPRESENTATIVE
SRI. VENKATARAMAN RAJA
S/O SUBRAMANIAN VENKATARAMAN
AGED 56 YEARS,
RESIDING AT FLAT NO.2013,
SOBHA CARNATION APARTMENT COMPLEX,
SITUATED IN SY.NO.100/7, 98/2A,
98/2B AND 98/1(PART) OF
2
BELLANDURU VILLAGE, BANGALORE-560103
2.THE BANGALORE DEVELOPMENT AUTHORITY
SANKEY ROAD, NEAR 5TH MAIN ROAD,
KUMARA PARK WEST,
GUTTAHALLI, BENGALURU-560020
KARNATAKA,
REP BY ITS COMMISSIONER
3.M/S INDUS VALLEY HOMES PVT LTD
OFFICE AT NO.6/A, 2ND FLOOR,
KOBRA EXCELSIOR, 7TH MAIN, I BLOCK,
KORAMANGALA, BANGALORE-560034
REP BY ITS DIRECTOR
... RESPONDENTS
(BY SRI. S S SRINIVASA RAO (NOC))
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
IMPUGNED ORDER VIDE ANENXURE-A DATED 23.07.2018
PASSED BY THE XXXVII ADDITIONAL CITY CIVIL JDUGE,
BANGALORE, CCH-38, IN O.S.NO.3061 OF 2013 ALLOWING
TWO I.As FILED BY R-1 UNDER ORDER I RULE 10(2) OF THE
CODE OF CIVIL PROCEDURE, 1908 AND UNDER ORDER VI
RULE 17 OF THE CODE OF CIVIL PROCEDURE, 1908.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The petitioners being defendant Nos.1 and 2 in respondents' civil suit in O.S.No.3061/2013 inter alia for a decree of declaration etc. are invoking the writ jurisdiction of this Court laying a challenge to the order dated 23.07.2018, a copy whereof is at Annexure-'A' whereby the Court below has favoured two applications of the first respondent-plaintiff viz., one filed under Order I Rule 10(2) of CPC, 1908, for impleadment of proposed defendants 3 3 and 4 and the other one filed under Order VI Rule 17 of CPC, 1908, for amendment of the plaint. After service of notice, the contesting respondents have entered appearance through their counsel and resist the writ petitions.
2. Learned counsel for the petitioners argues that the application for impleadment of petitioners' transferee pendente lite and the application for amendment of the plaint concerning the transfer pendente lite could not have been favoured by the Court below inasmuch as the doctrine of lis pendens enacted under Transfer of Property Act, 1882 would have taken care of the apprehension of the respondent/plaintiff; similarly, he contends that the impleadment of BDA again is uncalled for and legally impermissible in the absence of statutory notice required under section 64 of the BDA Act, 1976; succinctly, the counsel submits that neither the transferee pendente lite nor the BDA is a proper party to the suit, much less a necessary party. So arguing, he seeks allowing of the Writ Petitions.
3. Learned counsel appearing for the respondents per contra submits that it is a settled legal position that in 4 the absnce of a transferee pendente lite, the trial of a suit can go on, is true; but it is open to the dominus litis to add the buyer pendente lite to the array of parties to the suit, to avoid possible complications which may arise because of non-impleadment; petitioners do not have any locus standi to challenge impleadment of BDA at all on the ground now urged; in any event, either the impleadment or the amendment of pleadings would not in any way prejudice the case of the petitioners; so contending, they seek dismissal of the Writ Petitions.
4. I have heard the learned counsel for the petitioners; I have heard the learned counsel for the respondents and I have perused the Petition Papers.
5. The suit is for a decree of declaration of title; the subject property is comprised in a plan approved by the BDA; although, BDA is neither a necessary party nor a proper party, it's presence would facilitate in throwing light on the likely issues that may possibly crop up in the suit. Impleadment of BDA is not challenged by the BDA; it is strange that the defendants in the suit challenge BDA's impleadment without demonstrating any prejudice caused by such impleadment. Thus, the petitioners do not have 5 any locus to maintain the challenge to the impleadment of the BDA. Their contention as to the absence of statutory notice under section 64 of the BDA Act, as a sine qua non for impleading the BDA, does not avail to them since a section is intended to protect the BDA from unwarranted litigations being launched against it; others cannot seek refuge under the said provision. This view is consistent with the decision of this Court in the case of Smt.Siddamma Vs. BDA, (2011) 1 KLJ 23.
6. The challenge to the impleadment of transferee of the petitioners is also liable to be rejected set at naught in view of the decision of the Apex Court in the case of Amit Shaw Kumar Vs Farida Khatoon, (2005) 11 SCC 403 at para 16, it is observed 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 wherein, his predecessor-in- interest happens to be a party. The Jharkand High court in the case of Anita Soni Vs. Smt.Minadevi, (2018) SCC Online Jhar 1155 at para 9 has discussed about this 6 aspect of the matter in the light of the decision of the Apex Court.
7. The contention that the doctrine of lis pendens enacted in Section 52 of the Transfer of Property Act, 1882 will look after the interest of the plaintiff side and therefore, the buyer pendente lite need not be brought or permitted to the array of parties to the suit or proceeding, is a poor solace to the dominant litis, especially when such alienation or encumbering of the property in the lis is accomplished sans leave of the Court. I hasten to add that such a contention ill-lies in the mouth of the transferor pendente lite, especially when no likely prejudice to the challenger, by such impleadment is demonstrated.
8. The impleadment of persons as parties to the litigation obviously necessitates alteration or addition of pleadings either in the cause title or in the body of the pleadings or in the prayer column, depending upon the purpose for which such impleadment is done. Keeping this in view, the trial Court in its accumulated wisdom has exercised the discretion according to rules of reason and justice which cannot be subject matter of re-look at the hands of the Writ Court exercising restrictive supervisory 7 jurisdiction under Article 227 of the Constitution of India, especially when no prejudice occasioned thereby having been shown.
In the above circumstances, these Writ Petitions being devoid of merits, stand rejected.
However, it is open to the petitioners to file Additional Written Statement within a period of four weeks.
The observations made hereinabove shall not influence the trial and the decision making in the suit.
No costs.
Sd/-
JUDGE *alb/-.