Full Judgment Text
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®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
TH
DATED THIS THE 26 DAY OF AUGUST 2014
BEFORE:
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos.6588-6589 OF 2012 (GM-CPC)
BETWEEN:
1. Jayantilal N Shah,
Son of Late N.P.Shah,
Aged about 81 years,
Residing at No.221,
st
1 Floor, Nagarthpet,
Bangalore – 560 002.
2. Esha G Shah,
Daughter of Sri Girish J Shah,
Aged about 22 years,
Residing at No.5/1,
North Public Square,
Basavanagudi,
Bangalore – 560 004.
3. Punit N Shah,
Son of N.J.Shah,
Aged about 26 years,
Residing at No.106,
Venkateshwara Market,
2
120 Avenue Road,
Bangalore – 560 002.
… PETITIONERS
(By Shri. S.S. Naganand, Senior Advocate for Shri. S. Sriranga,
Advocate)
AND:
1. Smt. Nagarathna Murthy,
Wife of A. Ramesh Murthy,
Daughter of Late D.S.Hanumantha Rao,
Aged about 57 years,
rd
Residing at No.29, 3 Cross,
Judicial Officer’s Layout,
nd
RMV 2 Stage,
Bangalore – 560 094.
2. Smt. Andalu,
Daughter of Late V.N.Shankar,
Aged about 85 years,
Residing at No.55,
Annaswamy Mudaliar Road,
Kondanda Rama Layout,
Opposite to Ulsoor Lake,
Bangalore – 560 043.
3. Smt. Kavitha Shankar,
Daughter of Late V.N.Shankar,
Aged about 56 years,
Residing at No.55,
Annaswamy Mudaliar Road,
Kondanda Rama Layout,
Opposite to Ulsoor Lake,
Bangalore – 560 043.
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4. Rajkumar Menon,
Son of Late K.T.B.Menon,
Aged about 65 years,
Residing at Sun Plaza,
nd
2 Floor, No.19,
Chetty Road,
Chennai – 600 006.
5. R. Venkatesh,
Son of Late M.V.Ramanna,
Major,
Residing at No.21/1,
th
11 Cross, Katthriguppa Main Road,
Bangalore – 560 050.
6. S. Raghunath,
Son of Late H.S.Shankar,
Major,
th
No.306, 17 C Main,
rd
3 Block, Rajajinagar,
Bangalore – 560 010.
…RESPONDENTS
(By Shri. Basavaraj R Bannur and Shri. K.V.Hirmath, Advocates
for Respondent No.1
Shri. W.M. Sundaramurthy, Advcoate for M/s. Sundaraswamy
and Sundaraswamy, Advocates and Legal Consultants for
Respondent Nos. 2 and 3
Shri. H.S. Ramamurthy, Advocate for Respondent No.4
Respondent No.5 served)
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These Writ Petitions filed under Articles 226 and 227 of the
Constitution of India praying to call for the records in
O.S.No.562/2010 and to set aside the order dated 14.2.2012
passed by the Senior Civil Judge and JMFC., Devanahalli vide
Annexure – K on I.A.No.3 and 4 under Order 1 Rule 10(2) read
with Section 151 of CPC., and dismiss the said application.
These Writ Petitions having been heard and reserved on
19.08.2014 and coming on for pronouncement of Orders this day,
the Court delivered the following:-
O R D E R
This writ petition is filed in the following circumstances.
The petitioners no.1 to 3 are said to be arraigned as
defendants no.3 to 5 in a pending civil suit in OS 562/2010, on the
file of the Court of the Senior Civil Judge and JMFC, Devanahalli.
Respondent no.4, herein is said to be the plaintiff in that suit. The
plaintiff has sought for a declaration that he is the absolute owner
of the agricultural land measuring in all about 105 acres,
comprising several parcels bearing individual survey numbers, of
Shettarahalli, Devanahalli taluk. The plaintiff is said to have
purchased the same under a sale deed dated 8.10.1969. The same
are said to be more fully described in the Schedule to the plaint. It
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is stated that defendants no.1 and 2 were the power of attorney
holders of the plaintiff. The said power of attorney granted in
favour of the said defendants is said to have been revoked
subsequently. But notwithstanding such revocation, the said
defendants 1 and 2 are said to have executed sale deeds in respect
of the suit properties, fraudulently, in favour of the defendants 3 to
5, the petitioners herein. The plaintiff is thus said to have sought
for a declaration that the 13 sale deeds said to have been executed
by Respondent no.5 herein, in favour of the petitioners, in respect
of the suit Schedule properties, as being null and void. And is also
said to have sought for injunctory reliefs restraining the petitioners
from alienating the suit properties or from creating any charge on
the same.
The petitioners are said to be contesting the suit and have
filed their written statement to contend that the fourth respondent
herein had initially entered into agreements to sell the suit
properties as on 20.1.1994 and had thereafter executed sale deeds,
through the fifth respondent acting as power of attorney holder, as
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on 9.4.2008. And are said to have asserted that they are the
absolute owners of the property.
It is said that respondents 1 to 3, of whom neither the
plaintiff nor the defendants had spoken and were apparently not
concerned with, had filed applications (IA no.III and IA no.IV)
seeking leave of the court to be joined as defendants in the suit. It
was said to have been claimed that their father had been conferred
with occupancy rights by way of a re-grant, in respect of portions
of the suit properties, under Section 5 of the Mysore (Personal &
Miscellaneous) Inams Abolition Act, 1954. And that they have
succeeded to the same. And are said to have claimed absolute
ownership of the said properties. The petitioners are said to have
resisted the application by filing their objections. It was urged
that the said respondent were neither proper or necessary parties to
be impleaded as defendants. The very claim of the said
respondents 1 to 3 was disputed. It was pointed out that the lands
said to have been inherited by the said respondents were not any
part of the suit properties. In that, it was asserted that in the year
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1958, there had been a re-survey of the suit properties and the
survey numbers assigned to the lands were different from the
numbers indicated in the purported re-grant made in favour of the
father of respondents 1 to 3 as claimed.
The trial court however, is said to have allowed the
applications holding in favour of the said respondents. It is that
which is sought to be challenged in the present writ petition.
2. The learned Senior Advocate, Shri S.S.Naganand,
appearing for the counsel for the petitioners would contend that
the very application of the respondents was misconceived, having
regard to the fact that the plaintiff has not claimed any relief as
against the applicants.
It is contended that the dispute is as between the plaintiff
and the petitioners on their respective title deeds. The applicants
seeking to set up an independent title in such a suit is totally
incongruous. The claim, if any, ought to be agitated in an
independent suit. And that such a suit has in fact been instituted
by the first respondent, in OS 391/2012, on the file of the Court
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of the Senior Civil Judge, Devanahalli, which is said to be
pending as on date. A copy of the plaint in the said suit is
produced. It is pointed out that the petitioners and the plaintiff are
named as the defendants in the said suit.
It is contended that on principle, the questions involved in
the suit would mean only those questions concerning the parties to
the suit and not questions concerning any third-party. In deciding
whether a party is a necessary party, the court would have to
determine whether any relief can be granted to the plaintiff or the
defendant, without the presence of such a party. When the claim
of the applicants was totally alien to the rival claims of the
plaintiff and defendant, there was no necessity for the presence of
the applicants. It is contended that by the impugned order the trial
court has imposed the applicants on the parties to the suit, which
is contrary to the settled principle.
It is urged that the purported cause of action of the
applicants being permitted to be urged by the applicant –
respondents, as defendants in a suit is not tenable. The joining of
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the said parties as defendants would require, issues not germane to
the suit being raised and rendering the scope of the suit to be
enlarged without any purpose being served in deciding the lis
between the plaintiff and the defendant, but when the endeavour
of the applicants is obviously to have their nebulous claim
adjudicated in the present suit, the same is wholly foreign to the
controversy between the plaintiff and the defendants. In other
words the defendant would be facing two plaintiffs as it were, in
the third claim of the of the applicants being permitted to be raised
in the suit.
The learned Senior Advocate places reliance on the
following authorities in support of the above legal propositions.
1. Sri Vardhaman Stanakvisi Jain Sravak Sangh Vs.
Chandrakumar and another, ILR 1984 Kar. 889,
2. Ramesh Hirachand Kundanmal Vs. Municipal
Corporation of Greater Bombay and others, (1992)2 SCC 524,
3. Basavanneppa Yellappa Angadi Vs. Shivappa
Mallappa Hooli, ILR 1761 Karnataka
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4. Ramesh Chandra Vs. Mukhtyar Singh and others,
AIR 1980 Rajasthan 21
3. The learned counsel for the respondents, on the other
hand, seeks to justify the impugned order and would contend, that
it is significant to note that the plaintiff has not sought to question
the impugned order and therefore, the present petition filed by the
defendants is not maintainable.
It is contended that the trial court has after being satisfied of
the bona fides of the applicants and their claim to portions of the
suit properties and has come to a definite conclusion as to the
respondent - applicants being proper and necessary parties to the
suit. This is in exercise of the discretion vested in it and it is
therefore contended that the petition be dismissed.
4. In the above background, the question that arises for
consideration is whether the exercise of discretion by the trial
court in coming to a conclusion that the respondents 1 to 3 herein,
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were proper and necessary parties to the suit, was reasonable and
legally tenable.
It is evident from the pleadings that the claim sought to be
set up by the impleading applicants, is an independent right of
inheritance claimed over portions of the suit properties totally
measuring about 66 acres and 03 guntas out of the suit properties
measuring 105 acres.
As between the plaintiff and the present petitioners, their
pleadings would indicate that the plaintiff was the owner of the
suit properties, is not disputed. The controversy is only as regards
the conveyance of the suit properties said to have been made by
the power of attorney holders of the plaintiff, in favour of the
petitioners as being fraudulent.
The impleading applicants are said to have been prompted
to join as parties to the suit, when they had seen a notice published
in the newspapers bringing to the attention of the general public
the pendency of civil litigation with reference to the suit
properties, issued by the plaintiff.
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The trial court, in passing the impugned order, has not
indicated its reasoning in arriving at the conclusion that the
independent claim of the impleading applicants requires to be
considered at the trial. The claim was totally foreign to the
controversy between the plaintiff and the defendants. By allowing
the application, a triangular contest has been created, in the
plaintiff and the defendants denying each other’s claim to title on
the one hand and the impleading applicant denying the title of
both the plaintiff and the defendants, and setting up their own, on
the other. This has resulted in the impleading applicants virtually
engrafting a plaint of their own, as it were, notwithstanding their
capacity as defendants, into the pending suit. This is especially so
when the plaint and the written statement had no occasion to even
remotely refer to the said impleading applicants.
It is well settled that a necessary party is one without whom
no order can be effectively made. A proper party is one whose
presence is necessary for a complete and final decision of the
question involved in the proceedings. (See: Ramesh Hirachand
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Kundanmal v. Municipal Corpn. Of Greater Bombay, 1992 (2) JT
116; Ruma Chakraborty v. Sudha Rani Banerjee, AIR 2005 SC
3557)
Where the impleadment of a party results in changing the
complexion of the litigation – the said party’s presence is neither
necessary for the decision of the question involved in the
proceedings nor would it enable the court to effectively and
completely adjudicate the matter. (See: JJ Lal Pvt. Ltd. v. MR
Murali, AIR 2002 SC 1061)
In determining the question as to who is a necessary party,
there are two tests :
(i)there must be a right to some relief against such party in respect
of the matter involved in the proceeding in question and
(ii)it should not be possible to pass an effective decree in the
absence of such party.
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The eventual interest of a party in the fruits of litigation
cannot be held to be the true test to implead a party. (See: Benares
Bank v. Bhagawan, AIR 1947 Allahabad 18, FB; approved in
Dy.Commissioner v. Ramakrishna, AIR 1953 SC 521)
In the case on hand, given the facts and circumstances and
with the legal principles referred to above being kept in view, if
one were to ask whether the suit is capable of being completely
and finally decided in the absence of the impleading applicants,
the answer would be in the affirmative. For it is possible for the
trial court to either to decree the suit in favour of the plaintiff or to
dismiss the suit, with reference to the title deed set up by him. In
that, the dispute between the plaintiff and the defendants 3 to 5 is
capable of being fully and finally decided without the participation
of the impleading applicants. The fact that they are claiming to be
interested in the suit properties under an independent title would
not make them necessary or proper parties to the suit, the power of
the court to add a party to the suit cannot depend solely on the
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question that an interest is claimed in the suit property. The trial
court has hence committed an error in allowing the applications of
the impleading applicants.
Accordingly, the writ petitions are allowed. The impugned
order of the trial court is quashed.
Sd/-
JUDGE
nv*