Sri N Manoharan vs Sri Mohammed Mouazzam Azeez
2022 Latest Caselaw 4775 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 15TH DAY OF MARCH, 2022

                       BEFORE

      THE HON'BLE MR. JUSTICE E.S.INDIRESH

        WRIT PETITION No.1037/2022(GM-CPC)

BETWEEN:

SRI N MANOHARAN
S/O P.NATARAJAN
AGED ABOUT 44 YEARS
R/O NO.11/E,
CHENNA KRISHNAPPA STREET
PALACE GUTTAHALLI
BANGALORE-560 003

                                    ...PETITIONER
(BY SRI.VIVEK REDDY., SENIOR ADV. FOR
SRI.K.N.SUBBA REDDY, ADV.)

AND

1.    SRI MOHAMMED MOUAZZAM AZEEZ
      SON OF LATE ABDUL AZEEZ MEMON
      AGED ABOUT 38 YEARS
      OCCUPATION BUSINESS
      RESIDING AT NO.6
      1ST MAIN ROAD, JAYAMAHAL
      BANGALORE-560 046.

2.    SRI JOHN MOSES
      S/O P.DEVAMANI
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     AGED ABOUT 40 YEARS
     OCCUPATION NOT KNOWN
     RESIDING AT NO.79
     3RD CROSS, HUTCHINS ROAD
     COX TOWN, BANGALORE-560 084.

3.   SRI MICHEL FERNANDIS
     S/O LATE PETER JASIN FERNANDIS
     AGED ABOUT 58 YEARS
     OCCUPATION - NOT KNOWN
     RESIDING AT NO.7 AND 7/2
     HOSUR ROAD, BANGALORE-560 025.

4.   SRI B.L.BABU
     S/O LATE BALRAJ
     AGED ABOUT 42 YEARS
     OCCUPATION - NOT KNOWN
     RESIDING AT NO.28
     1ST MAIN, 8TH CROSS
     VALAMIKI NAGAR, MYSORE ROAD
     BANGALORE-560 026.

5.   SRI ANIL RAMAKRISHNAN
     S/O LATE DR.K.P.RAMAKRISHNAN
     AGED ABOUT 59 YEARS
     OCCUPATION - PROFESSIONAL.

6.   SRI SAILESH RAMAKRISHNAN
     S/O LATE SRI K.P.RAMAKRISHNAN
     AGED ABOUT 59 YEARS
     OCCUPATION-PROFESSIONAL.

7.   SRI REKHA RAMAKRISHNAN
     D/O LATE DR.K.P.RAMAKRISHNAN
     AGED ABOUT 60 YEARS
     OCCUPATION-HOUSE WIFE.
                       3


8.   SMT.SAIRINA RAMAKRISHNAN
     D/O LATE DR.K.P.RAMAKRISHNAN
     AGED ABOUT 42 YEARS
     OCCUPATION -HOUSE WIFE.

     R5 TO R8 RESIDING AT
     PRESENTLY C/O
     MR.JANARDHAN MUNACHELLI
     NO.64, 3RD CROSS
     JAIBHARATH NAGAR
     BANGALORE-560 033.

9.   SMT YOUNNE FERNANDEZ
     AGED ABOUT 85 YEARS
     W/O PETER JUASON FERNANDEZ
     OCCUPATION -NOT KNOWN
     RESIDING AT NO.44
     SAFFRON STREET
     PONDICHERRY-605001.

10 . SMT.MARY FERNANDEZ
     AGED ABOUT 41 YEARS
     D/O YOUNNE FERNANDEZ
     OCCUPATION -NOT KNOWN
     RESIDING AT NO.44
     SAFFRON STREET
     PONDICHERRY-605001.

11 . SMT.SUSHEELA DEVI D
     W/O SRI P.DEVAMANI
     AGED ABOUT 62 YEARS
     RESIDING AT NO.487
     6TH CROSS, 9TH MAIN
     HBR LAYOUT, 2ND BLOCK
     KALYAN NAGAR POST
     BANGALORE-560 043.
                       4


12 . SRI P.RAVI KUMAR
     S/O PARAMASHIVAIAH
     AGED ABOUT 35 YEARS
     RESIDING AT NO.48
     2ND MAIN ROAD,
     PALACE GUTTAHALLI
     BANGALORE-56 0003.

13 . MR.ARIF ULLA KHAN
     S/O ATHA ULLA KHAN
     AGED ABOUT 40 YEARS
     RESIDING AT NO.847
     FATHIMA MASJID STREET
     SARAI PALYA,
     THANISANDRA MAIN ROAD
     S.R.K.POST,
     BANGALORE-560 077.

                                ...RESPONDENTS
(BY SRI.R.CHANDRASHEKAR, ADV. (PH) FOR C/R1)


     THIS WRIT PETITION IS FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO
SET ASIDE THE COMMON ORDER DATED 01.12.2021
ON IA FILED UNDER ORDER 1 RULE 10 OF CPC
PASSED IN O.S.NO.25398/2014 BY THE HONBLE
XXVIII ADDITIONAL CITY CIVIL JUDGE AT MAYO HALL
UNIT (CCH29) BANGALORE VIDE ANNEXURE-A AND
DIRECT THE CIVIL JUDGE SENIOR DIVISION COURT,
TO FOLLOW AND GIVE OPPORTUNITY TO THE
PETITIONER AND ETC.

     THIS WRIT PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
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                       ORDER

This writ petition is filed by the imleading

applicant in O.S.No.25398/2014 on the file of the

XXVIII Addl. City Civil Judge, Mayo Hall Unit,

Bangalore, challenging the order dated 1.12.2021

rejecting the application filed under Order 1 Rule 10

read with Section 151 of CPC.

2. The brief facts for adjudication of the writ

petition are that:

The respondent No.1 herein has filed

O.S.No.25398/2014 on the file of the trial court

seeking relief of declaration with consequential relief

of mandatory injunction against the defendants

therein.

3. The defendant No.1 entered appearance

and filed written statement. In the meanwhile, the

petitioner herein has filed an application under

Order 1 Rule 10 of CPC and sought to implead in the

suit as additional defendant. The said application

was resisted by the plaintiff/respondent No.1 herein.

The trial court after considering the materials

available on record, by impugned order dated

1.12.2021, rejected the impleading application with

costs. Being aggrieved by the same, the impleading

applicant has presented this writ petition.

4. I have heard Mr.Vivek Reddy, learned

Senior Counsel appearing for the petitioner and

Mr.R.Chandrashekar, learned counsel appearing for

the caveator-respondents.

5. Mr.Vivek Reddy, learned Senior Counsel

appearing for the petitioner drew the attention of

the court to the affidavit filed by the impleading

applicant under Order 1 Rule 10 of CPC. He

submitted that the impleading applicant has stated

at paragraph 3 of the affidavit that the defendant

No.11 in the suit has sold portion of the suit

schedule property to the impleading applicant and

therefore, the presence of the impleading applicant

is very much required for effective adjudication of

the suit, as he being a necessary and proper party.

In this regard, he places reliance on the judgments

of the Apex Court in the case of K.K.Velusamy -v-

N.Palanisamy reported in (2011) 11 SCC 275, in the

case of Amit Kumar Shaw and another -v- Farida

Khatoon and another case reported in (2005) 11

SCC 403, in the case of A.Nawab John and others -

v- V.N.Subramaniyam reported in (2012) 7 SCC 738

and in the case of Kasturi -v- Iyyamperumal and

others reported in (2005) 6 SCC 733 and argued

that barring the suit claiming the relief of specific

performance, in so far as claiming declaratory relief

is concerned, the right of the pendente suit is

safeguarded and presence of the impleading

applicant is very much required for adjudication of

the suit. Accordingly, he sought for interference of

this court.

6. Per contra, Mr.Chandrashekar, learned

counsel appearing for the respondents argued to

justify the impugned order passed by the trial court

and he also relied upon the judgment of the Apex

Court in the case of Arjun Singh -v- Mohindra

Kumar reported in AIR 1964 SC 993 and in the case

of Vidur Impex and Traders Private Limited and

other -v- Tosh Apartments Private Limited and

other reported in (2012) 8 SCC 384 and argued that

the impleading applicant cannot be considered as

necessary party to adjudicate the matter on merits.

He also drew the attention of this Court to the

reasons assigned by the trial court while declining to

accept the application made by the petitioner

herein.

7. In the light of the submissions made by

the learned counsel appearing for the parties, the

question to be answered in this writ petition is

'whether the suit be concluded on merits in the

absence of the petitioner herein?'.

8. In this regard, it is well settled principle

of law that a 'necessary party' is the person who

ought to be joined as a party to the suit and in

whose absence, an effective decree cannot be

passed by the Court. Applying the aforesaid

principle, which has been reiterated by the Apex

Court in catena of decisions, to the facts on record,

undisputably, the suit is filed for relief of declaration

with consequential relief of mandatory injunction.

Trial court declined to accept the impleading

application on the ground that the impleading

applicant was not diligent and therefore declined to

accept the application. However, in view of the law

declared by the Apex Court, referred to by the

parties in the aforesaid mentioned cases and recent

judgment of the Apex Court in the case of Rahul S.

Shah v. Jinendra Kumar Gandhi reported in 2021(6)

SCC 418, wherein a distinction has been made with

regard to the nature of relief sought for in the suit.

In so far as the relief sought for by the plaintiff

claiming specific performance under a particular

agreement, if the impleading applicant is not a party

to the said agreement, presence of stranger to the

agreement may not be required to adjudicate the

suit on merits in a suit filed for specific performance.

However, in the case on hand is concerned, the suit

is filed for declaratory relief with consequential relief

of mandatory injunction.

9. In that view of the matter, I am of the

view that the presence of the impleading applicant is

required to decide the matter effectively. Taking into

consideration the language employed under Order 1

Rule 10 of CPC, I am of the view that the finding

recorded by the trial court in the impugned order

requires to be interfered with.

10. Accordingly, the writ petition is allowed.

The impleading application filed by the petitioner

herein before the trial court is allowed and

accordingly the order dated 1.12.2021, is set aside.

11. Taking into consideration the arguments

advanced by both the learned counsel appearing for

the parties to cooperate for early disposal of the suit

and further, taking into consideration the impleading

application has been allowed by this Court today

and following the circular issued by this court for

early disposal of the cases which are beyond 5

years, the trial court is directed to dispose of the

suit within one and half year from the date of

receipt of copy of this order.

Sd/-

JUDGE

DM