1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE19H DAY OF OCTOBER, 2016 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.529/2014 (GM-CPC) R ... PETITIONER BETWEEN: SRI BASAVARAJ @ MADHU, S/O B/M RAJENDRA, AGED ABOUT21YEARS, R/AT SIDDAGANGA EXTENSION, BEHIND HOTEL KUBERA, TUMKUR-572101. (BY SRI S. NAGARAJA, ADVOCATE ) AND:
1. SMT. SUVARNAMMA, W/O LATE MAHADEVAIAH, AGED ABOUT74YEARS, 2.
3. RAJENDRA B. M. S/O LATE MAHADEVAIAH, AGED ABOUT50YEARS, BOTH THE RESPONDENT NO.1 & 2 R/AT NO.611,16TH MAIN, MAJUNATHNAGAR, WEST OF CHORD ROAD, BANGALORE-560010. SMT. RANI @ T. M. SUMANGLA, W/O SHIVAKUMAR, 4.
5. 2 D/O LATE MAHADEVAIAH MAJOR, R/AT NO.7,RAILWAY PARALLEL ROAD, B.C.C. LAYOUT, BANGALORE-560 040. SMT. JAYAMMA, W/O A. G. SHIVASHANKAR, MAJOR, R/AT GOWDARA BEEDHI, CHIKPET,TUMKUR-572006. P. SHEKAR, 48 YEARS, S/O LATE A.D. PUTTANNA, NO.970, ARALEPET, TUMKUR-008. ... RESPONDENTS (BY SRI NARAYANA SHENOY, ADVOCATE FOR R3, SRI M.S. SHANKARAGULLI, ADVOCATE FOR R4, SRI. N. SURESH, ADVOCATE FOR R5, R1 & R2 DISPENSED WITH) …… THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED2012.2013 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMKUR ON I.A.II IN R.A.NO.115/2010 VIDE ANNEXURE-D. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
This is plaintiff’s writ petition against the order dated 20.12.2013 on I.A.No.2 made in R.A.No.115/2010 on the file of the II Addl. District and Sessions Judge, 3 Tumakuru, dismissing the application filed under Order I Rule 10 of Code of Civil Procedure to implead one P.Shekar, Son of late A.D.Puttanna, subsequent purchaser during pendency of the appeal as 5th respondent.
2. The petitioner herein filed suit in O.S.No.70/1996 for the relief of partition and separate possession against the defendants contending that the suit schedule properties are joint family properties and he is entitled to a share. The defendants filed written statement, denied the plaint averments and contended that the suit schedule properties are not joint family properties and suit is not maintainable, etc. After contest, the Trial Court dismissed the suit by judgment and decree dated 25.02.2010.
3. Aggrieved by the said judgment and decree of the Trial Court, the petitioner/plaintiff filed R.A.115/2010 4 on the file of the II Addl. District and Sessions Judge, Tumakuru. It is the case of the petitioner before the lower appellate Court that during pendency of the said appeal, defendants have sold item No.1 of the suit schedule property in favour of one P.Shekar. Therefore, filed application under Order I Rule 10 r/w Section 151 of Code of Civil Procedure to implead the said P.Shekar/subsequent purchaser as 5th respondent in the appeal, contending that sale executed by the defendants in favour of the impleading applicant is with an intention to defraud the plaintiff’s legitimate share and therefore, sought to implead him as 5th respondent as he is proper and necessary party to the proceeding, in order to avoid multiplicity of the proceedings.
4. The respondents have not filed objections to the application. The proposed impleading applicant filed objections denying the averments made in the application and contended that the application is not 5 maintainable and he is not aware of the appeal proceedings pending between the parties and that he is the bonafide purchaser.
5. The Trial Court, after hearing both the parties, by the impugned order dated 20.12.2013 has dismissed the application holding that the proposed applicant is not a necessary and proper party to the proceeding. Hence the present writ petition is filed.
6. 7. I have heard the learned counsel for the petitioner. Sri S. Nagaraja, learned counsel for the petitioner vehemently contended that the impugned order passed by the lower appellate Court is opposed to law and contrary to the provisions of Order I Rule 10 of Code of Civil Procedure. He further contended the proposed impleading applicant has purchased the property knowing fully well the pendency of the proceedings between the parties and therefore he is necessary and 6 proper party in order to avoid multiplicity of the proceedings. Therefore, he sought to allow the application by setting aside the impugned order.
8. In view of the arguments advanced by the learned counsel for the petitioner, the only point that arises for consideration is: “Whether the lower Appellate Court is justified in dismissing the application filed under Order I Rule 10 of Code of Civil Procedure to implead one P.Shekar, subsequent purchaser, as 5th respondent?.” 9. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the petitioner.
10. It is undisputed fact that the present petitioner who is appellant before the lower Appellate Court filed R.A.No.115/2010 before the II Addl. District and Sessions Judge, Tumakuru, against the judgment and decree dated 25.02.2010 made in O.S.No.70/1996 7 dismissing the suit filed for partition and separate possession. It is also not in dispute that the plaintiff contended that the suit schedule properties are joint family properties of plaintiff and defendants. The suit was resisted by filing written statement. It is alleged that during pendency of the appeal, the defendants sold the property in favour of the impleading applicant. It is the specific case of the proposed impleading applicant that he was not aware of the proceedings and was a bonafide purchaser. It is well settled law that any person who purchases property during pendency of the proceeding, he is bound by the decree passed by the Court and if the vendor succeeds, he is entitled to the property and if the vendor does not succeeds, he is not entitled, in view of the provisions of Section 52 of the Transfer of Property Act, 1882, which reads as under: “52. Transfer of property pending suit relating thereto- During the [pendency]. in any court having authority [within the limits of India excluding the State of Jammu and Kashimir]. or 8 established beyond such limits]. by [the Central Government]. of [any]. suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.” 11. Order I Rule 10 of the Code of Civil Procedure gives vide discretion to the Court to deal with any such situation which may result in prejudicing the interest of affected party if not impleaded in the suit or appeal and whether the impleadment of the subsequent purchaser is necessary and vital for the decision of the appeal will have to be examined. Order I Rule 10(2) of Code of Civil Procedure covers two types of cases. (a) of a party who ought to have been joined but not joined and is a necessary party; and 9 (b) of a party without whose presence, the question involved in the suit cannot be completely and effectively decided. The former is called ‘necessary party’ and the latter is called ‘proper party’. Sub Section (2) of the Order I Rule 10 of Code of Civil Procedure, therefore, is attracted when the question is covered by any one of the above.
12. The question of addition of parties under Order I Rule 10 is one of judicial discretions, which has to be exercised in the facts and circumstances of a particular case. In some cases, it may raise controversy as to the power of Court in contra distinction to its inherent jurisdiction or, in other words, of jurisdiction in the limited sense in its use under Section 115 of the Code of Civil Procedure.
13. It is undisputed fact that the impleading applicant has purchased item No.1 of the suit schedule property during pendency of the appeal. The said act is 10 prohibited by operation of Section 52 of the Transfer of Property Act,1882, to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant/petitioner except with the order or authority of the Court.
14. Admittedly, in the present case, the impleading applicant or the defendants have not obtained the order or authority of the Court before alienation is made in respect of item No.1 in favour of the proposed impleading applicant. Therefore, the alienation obviously would be hit by the doctrine of lis pendence by operation of Section 52 of the Transfer of Property Act, 1882.
15. The Hon’ble Supreme Court while considering the provisions of Section 52 of the Transfer of Property Act, in the case of Sanjay Verma vs. Manik Roy and others reported in AIR2007SC1332 held as under:
11. “Section 52 postulates a condition that the alienation will in no manner affect the right of any party under any decree which may be passed in the suit, unless the property was alienated with the permission of the Court. Therefore, the alienation obviously will be hit by the doctrine of lis pendence.” 16. The Hon’ble Supreme Court while considering the provisions of Order I Rule 10 of Code of Civil Procedure, in the case of Vidur Impex and Traders Pvt. Ltd. And others vs. Tosh Apartments Pvt. Ltd. And others with Bhagwati Developers Pvt. Ltd. Vs. Tosh Apartments Pvt. Ltd. And others reported in AIR2012SC2925 at paragraphs 37 and 38 held as under: “37. In the light of the above, we shall now consider whether the learned Single Judge and the Division Bench of the High Court committed an error by dismissing the appellants’ application for impleadment as parties to Suit No.425/1993. At the cost of repetition, we 12 consider it necessary to mention that respondent No.1 had filed suit for specific performance of agreement dated 13.9.1988 executed by respondent No.1. The appellants and Bhagwati Developers are total strangers to that agreement. They came into the picture only when respondent No.2 entered into a clandestine transaction with the appellants for sale of the suit property and executed the agreements for sale, which were followed by registered sale deeds and the appellants executed agreement for sale in favour of Bhagwati Developers. These transactions were in clear violation of the order of injunction passed by the Delhi High Court which had restrained respondent No.2 from alienating the suit property or creating third party interest. To put it differently, the agreements for sale and the sale deeds executed by respondent No.2 in favour of the appellants did not have any legal sanctity. The status of the agreement for sale executed by the appellants in favour of Bhagwati Developers was no different. These transactions did not confer any right upon the appellants or Bhagwati Developers. Therefore, their presence is not at all necessary 13 for adjudication of the question whether respondent Nos.1 and 2 had entered into a binding agreement and whether respondent No.1 is entitled to a decree of specific performance of the said agreement. That apart, after executing agreement for sale dated 18.3.1997 in favour of Bhagwati Developers, the appellants cannot claim to have any subsisting legal or commercial interest in the suit property and they cannot take benefit of the order passed by the Calcutta High Court for appointment of an arbitrator which was followed by an order for appointment of receiver because the parties to the proceedings instituted before that Court deliberately suppressed the facts relating to Suit No.425/1993 pending before the Delhi High Court and the orders of injunction passed in that suit.
38. We are in complete agreement with the Delhi High Court that the application for impleadment filed by the appellants was highly belated. Although, the appellants have pleaded that at the time of execution of the agreements for sale by respondent No.2 in their favour in February 14 1997, they did not know about the suit filed by respondent No.1, it is difficult, if not impossible, to accept their statement because the smallness of time gap between the agreements for sale and the sale deeds executed by respondent No.2 in favour of the appellants and the execution of agreement for sale by the appellants in favour of Bhagwati Developers would make any person of ordinary prudence to believe that respondent No.2, the appellants and Bhagwati Developers had entered into these transactions with the sole object of frustrating agreement for sale dated 13.9.1988 executed in favour of respondent No.1 and the suit pending before the Delhi High Court. In any case, the appellants will be deemed to have become aware of the same on receipt of summons in Suit No.161/1999 filed by respondent No.2 for annulment of the agreements for sale and the sale deeds in which respondent No.2 had clearly made a mention of Suit No.425/1993 filed by respondent No.1 for specific performance of agreement for sale dated 13.12.1988 and injunction or at least when the learned Single Judge of the Delhi High Court entertained IA No.625/2001 filed by respondent 15 No.1 and restrained respondent Nos.2 and 4 from transferring possession of the suit property to the appellants. However, in the application for impleadment filed by them, the appellants did not offer any tangible explanation as to why the application for impleadment was filed only on 4.2.2008 i.e. after 7 years of the passing of injunction order dated 22.1.2001 and, in our considered view, this constituted a valid ground for declining their prayer for impleadment as parties to Suit No.425/1993.” 17. The Appellate Court considering the provisions of Order I Rule 10(2) of the Code of Civil Procedure and Section 52 of the Transfer of Property Act, held that any alienation made by the defendant during pendency of the appeal would be hit by the doctrine of lis pendence and therefore the proposed impleading applicant is not a necessary and property party, in order to enable the appellate Court to adjudicate all the questions effectively. Same is in accordance with law. 16 18. For the reasons stated above, the point raised for consideration has to be answered in the negative holding that the petitioner has not made out any case for interference with the order passed by the lower appellate Court. Accordingly, Writ Petition is dismissed. kcm Sd/- JUDGE