Rakesh Kumar Jain (Huf) vs G Ganesh Rao
2022 Latest Caselaw 7660 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 30TH DAY OF MAY, 2022

                       BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

         WRIT PETITION NO.291 OF 2022 (GM-CPC)

BETWEEN:

RAKESH KUMAR JAIN (HUF)
S/O SUWALAL DAK
AGED ABOUT 42 YEARS
R/O NO.32, KAMMAGONDANAHALLI
ABBIGERE MAIN ROAD
JALAHALLI WEST
BENGALURU - 15


                                        ...PETITIONER

(BY SRI.P.MAHESHA, ADVOCATE)

AND

1.     G.GANESH RAO
       S/O LATE GOVINDAPPA
       AGED ABOUT 56 YEARS
       R/O NO.312, (312/4)
       6TH MAIN ROAD
       MAHALAKSHMI LAYOUT
       BENGALURU - 86

2.     SHAKUNTALA G RAO
       W/O G.GANESH RAO
       AGED ABOUT 54 YEARS
       R/O NO.312, (312/4)
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     6TH MAIN ROAD
     MAHALAKSHMI LAYOUT
     BENGALURU - 86

3.   M/S. SRI.SAI SAMBRAMA INC
     NO.82, 5TH FLOOR, SAI ARCADE
     GANDHI BAZAAR MAIN ROAD
     BASAVANGUDI
     BENGALURU - 4
     REPRESENTED BY ITS PARTNERS
     SRI.VENKATARAMANA RAJU
     SRI.T.R.SAINATH

4.   SRI.V.ASHOK KUMAR
     S/O VEERAPPA
     AGED ABOUT 40 YEARS
     R/AT NO.249, 17TH MAIN ROAD
     27TH CROSS ROAD, 2ND BLOCK
     RAJAJINAGAR
     BENGALURU - 10

5.   SMT.ARCHANA ANANDAKUMAR
     D/O VEERAPPA
     W/O ANANDAKUMAR
     AGED ABOUT 49 YEARS
     R/AT NO.12, 3RD FLOOR
     BANASHANKARI NILAYA
     NHCS LAYOUT
     BASAVESHWARANAGARA
     BENGALURU - 79

                                    .....RESPONDENTS

(BY SRI.V.B.SHIVAKUMAR, ADVOCATE FOR R.3;
NOTICE TO R.1, 2 AND 5 ARE D/W V/O/D 27.05.2022)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE IMPUGNED ORDER PASSED BY THE ADDITIONAL CITY
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CIVIL     JUDGE,     BENGALURU    (CCH-66)    IN
O.S.NO.4557/2015   VIDE  ANNEXURE   -  E   DATED
09.11.2021 AND ETC.,


     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:


                         ORDER

The captioned writ petition is filed by the

petitioner-plaintiff feeling aggrieved by the order of

the Trial Judge passed on I.A.No.8 filed under Order

VI Rule 17 read with section 151 of CPC.,

2. The petitioner - plaintiff has instituted a suit

seeking relief of specific performance of contract in

O.S.No.4554/2015. Pending consideration of suit, the

petitioner - plaintiff came to know that his vendors

Nos.1 and 2 i.e., defendant Nos.1 and 2 have created

collusive documents. Based on the collusive

documents, decree is passed between defendant

Nos.1 and 2 and defendant No.4 and therefore, an

impleading application is filed to implead defendant

No.4. The said application was not contested.

3. The proposed defendant No.4, who has a

benefit of the decree in O.S.No.2862/2009 dated

04.06.2016, did not contest the impleading

application. The learned Judge allowed the impleading

application and defendant No.4 was brought on

record. Consequent to impleadment of defendant

No.4, the petitioner - plaintiff sought relief of

declaration to declare the judgment and decree dated

04.06.2016 passed in O.S.No.286/2016 is not binding

on him. This application is rejected by the learned

Judge on the premises that petitioner - plaintiff if is

really aggrieved by the judgment and decree can seek

redressal of his grievance by filing independent suit.

4. Heard learned counsel appearing for the

petitioner - plaintiff and learned counsel appearing for

respondent No.3 - defendant No.3.

5. The material on record reveals that there are

multiple transactions at the instance of the owners

i.e., defendant Nos.1 and 2. Defendant No.3 is

asserting title on the basis of the registered sale deed,

whereas the plaintiff is asserting right based on an

agreement to sell dated 05.04.2008 for a sale

consideration of Rs.2,20,00,000/-. The plaintiff alleged

that he has paid an advance amount of

Rs.10,00,000/-. At the same time, defendant No.4 is

also asserting right on the basis of an agreement to

sell executed by defendant Nos.1 and 2. Defendant

No.4 further filed a suit for specific performance of

contract in O.S.No.2862/2009. The said suit was

decreed exparte.

6. If all the significant details are taken into

consideration, then the rival claims made by the

plaintiff and defendant Nos.4 and 5 are inter

connected, the rights of the plaintiff and defendant

Nos.3 to 5 cannot be independently determined.

Though in a suit for specific performance, it is the suit

agreement, which has to be adjudicated upon, but

having regard to the nature of the rival claims made in

the present case on hand, it would be advisable that

rights of all the parties have to be adjudicated so as to

avoid the conflicting judgment. If the plaintiff is

relegated to pursue his remedy to challenge and

decree in O.S.No.2862/2009 by way of separate suit,

then the said suit may also lead to multiplicity of

proceedings.

7. The Hon'ble Apex Court in the case of

SAMPATH KUMAR VS. AYYAKANNU AND OTHERS

reported in (2002)7 SUPREME COURT CASES 559

held that if a party can maintain an independent suit,

then the said proposed amendment has to be allowed

and the parties are to be relegated in the very

pending suit and not by separate suit. Paragraph No.7

of the judgment reads as under;

"7. In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial Court, it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff's revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings."

8. The Hon'ble Apex Court in the case of

MAHADEVA RICE AND OIL MILLS VS.

CHENNIMALAI GOUNDER reported in AIR 1968

MAD. 287 has also held at para No.2 of the

judgment, which reads as under;

"2. It is imperative to note that by such impleading of the proposed party, all controversies arising in the suit and all issues arising thereunder may be finally determined and set at rest, thereby avoiding multiplicity of suits over a subject matter which could still have been decided in the pending suit itself;"

9. In that view of the matter, the order under

challenge is not at all sustainable and the same is

liable to be set-aside. This Court has also taken

judicial note of the fact that the amendment

application is not at all objected by defendant No.4,

who is a contesting party. In that view of the matter,

the order under challenge is not sustainable. Hence, I

pass the following;

ORDER

The Writ Petition is allowed.

                 The    amendment          application    -
           I.A.No.8     filed by    the     petitioner    -

plaintiff under Order VI Rule 17 of CPC., is allowed. The petitioner - plaintiff is permitted to incorporate the proposed amendment in the plaint.

Liberty is reserved to defendant No.4 to file written statement, if he chooses.

                  The    Court     shall    also    frame
           necessary issues in terms of the
           proposed amendment.




                                  Sd/-
                                 JUDGE


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