Doreyappa vs Sri.Andanappa
2023 Latest Caselaw 4845 Kant

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                                                 NC: 2023:KHC:26086
                                                    WP No. 908 of 2023




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 26TH DAY OF JULY, 2023

                                      BEFORE
                    THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
                      WRIT PETITION NO. 908 OF 2023 (GM-CPC)
             BETWEEN:
             DOREYAPPA
             S/O LATE NAVILAPPA
             AGED ABOUT 60 YEARS
             AGRICULTURIST
             REP BY HIS GPA HOLDER
             N BASAVARAJAPPA
             S/O NAVILAPPA
             AGED ABOUT 70 YEARS
             RETD EMPLOYEE AND AGRICULTURIST
             R/O HONNAVILE VILLAGE, NIDIGE HOBLI
             SHIVAMOGGA TALUK-577 222.
                                                          ...PETITIONER
             (BY SMT. M.V. ASHWINI, ADVOCATE)

             AND:

             1.   SRI.ANDANAPPA
                  S/O KUSKUR SANNA MANJAPPA
Digitally         AGED ABOUT 73 YEARS
signed by
VANDANA S         AGRICULTURIST
Location:         R/A NIDIGE VILLAGE
High Court        SHIVAMOGGA TALUK
of
Karnataka         SHIVAMOGGA DISTRICT-577 222.

             2.   SRI UMESH SHETTY
                  S/O VITTAL SHETTY
                  AGED ABOUT 60 YEARS
                  BUSINESSMAN
                  R/O DURGA HOTEL, B H ROAD
                  BHADRAVATHI-577 222.

             3.   SHAKUNTALA
                  W/O SHIVALINGAIAH
                  MAJOR, HOME MAKE
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                                       NC: 2023:KHC:26086
                                            WP No. 908 of 2023




     R/O NEARBY CORPORATION BUILDING
     BHADRAVATHI-577 222.
                                         ...RESPONDENTS
(BY SRI. NARAYAN MAYYAR, ADVOCATE FOR R1;
    SRI. SUNIL. K.N., ADVOCATE FOR R2)

     THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS
FROM THE COURT BELOW IN OS.NO.201/2016 PENDING ON THE
FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND
CJM,SHIVAMOGGA TO EXAMINE THE LEGALITY,VALIDITY AND
PROPRIETY OF THE IMPUGNED ORDER DATED 17.12.2022 WHICH
IS AT ANNEXURE-C AND QUASH THE SAME BY ALLOWING THE
WRIT PETITION AND ALLOW THE IMPLEADING APPLICATION
NUMBER 10 FILED BY THE PETITIONER O.S.NO.201/2016 PENDING
ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM,
SHIVAMOGGA WHICH IS AT ANNEXURE-D.

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

This petition by the impleading applicant in O.S.No.201/2016

on the file of the Principal Senior Civil Judge and CJM,

Shivamogga is directed against the impugned order dated

17.12.2022 passed on I.A.No.10, whereby the said application filed

by the petitioner-impleading applicant under Order 1 Rule 10 CPC

seeking impleadment as additional defendant No.3 in the suit was

rejected by the Trial Court.

2. Heard learned counsel for the petitioner and learned

counsel for the respondents and perused the material on record.

NC: 2023:KHC:26086 WP No. 908 of 2023

3. The material on record discloses that respondent No.1-

plaintiff instituted the aforesaid suit against respondent Nos.2 and 3

for declaration, permanent injunction and other reliefs in relation to

the suit schedule immovable property. The said suit is being

contested by respondent Nos.2 and 3-defendants. During the

pendency of the suit, the petitioner herein claiming independent

right, title, interest and possession over the suit schedule property

filed the instant application seeking impleadment as additional

defendant No.3 to the suit. The said application having been

opposed by respondent No.1-plaintiff, the Trial Court proceeded to

pass the impugned order rejecting I.A.No.10 by holding as under:

"ORDERS ON I.A. NO.10

When the matter was pending for await commissioner report, after completion of evidence of both the sides, the present application came to be filed.

2. The applicant in IA/proposed defendant No. 3 filed this application U/O I Rule 10 R/w Section 151 of Code of Civil Procedure seeking to implead the applicant as the defendant No. 3 in this case on the ground that he purchased the property in bearing Sy. No. 118 measuring 16 guntas from vendor in the 'A' suit schedule property.

3. The application is accompanied with the affidavit of the GPA holder of the proposed defendant No.

NC: 2023:KHC:26086 WP No. 908 of 2023

3, wherein it is stated that, his brother purchased 16 guntas of land in Sy. No. 118 in suit schedule 'A' property through registered sale deed dated 22.02.1985. The proposed defendant No. 3 filed suit for declaration against the plaintiff in OS No. 165/2019 pending on the file of I Addl. Sr. Civil Judge, Shivamogga. It is contended that land bearing Sy.No. 118 is totally measuring 6 acres 6 guntas out of which 1 guntas is kharab land and the remaining cultivable land is 6 acres 5 guntas. The owner of the land sold the entire land to various persons as such there is dispute between the plaintiff and the proposed defendant No. 3. The plaintiff filed this false suit to grab the property of the proposed defendant No. 3. Hence, he sought to come on record as defendant No.3.

4. On the other hand, the plaintiff through his counsel filed objection to the application and contended that, the application is not maintainable and it is liable to be rejected. It is contended that, land in Sy. No. 118 is already bifurcated as Sy. No. 118/1 to 4. As per the directions of Hon'ble High Court of Karnataka the revenue authorities have conducted the survey of the land in Sy. No. 117 and 118 wherein the land of the plaintiff to an extent of 1 acre is identified in Sy. No. 118/2 and 117/1 and the said lands are assigned Sy. No. 117/1 and 118/1. The proposed defendant is claiming rights over 16 guntas of land in Sy. No. 118 on the basis of alleged sale deed dated 22.02.1985 but no such property was available for sale on the said date. The sale deed is a created document. The proposed defendant No. 3 has already filed suit in OS No.

NC: 2023:KHC:26086 WP No. 908 of 2023

165/2019 seeking relief of declaration, mandatory injunction against the present plaintiff as well as the vendors. The present application might have been filed on the instigation of the defendant No. 1. The proposed defendant is neither necessary nor proper party for adjudication of this suit and the plaintiff has not claimed any relief against the proposed defendant No. 3. The proposed defendant by filing false affidavit filed the present application after lapse of 6 years and only with an intention to drag on the proceedings. Hence, he sought to reject the application.

5. Heard both the counsel for the plaintiff and proposed defendant No. 3.

6. Upon hearing and based upon materials available on record, the point that arise for my consideration is:

Whether the proposed defendant No. 3 is necessary party for adjudication of the matter in dispute ?

7. My finding to the above point is in the 'negative' for the following:

REASONS

8. Admittedly, this suit is filed seeking relief of declaration to declare that the plaintiff is the absolute owner of the suit schedule 'A' property and consequential relief of mandatory injunction directing the defendant No. 1 and 2 to deliver the vacant possession of the 'B' and 'C'

NC: 2023:KHC:26086 WP No. 908 of 2023

schedule properties respectively by removing the super structure made thereon.

9. It is the case of the plaintiff that he purchased 1 acre of land described as suit schedule 'A' property through registered sale deed dated 03.10.1974 for valid consideration and possession was handed over the plaintiff. The defendant being the stringers and without any rights encroached in the easter portion of suit schedule 'A' property described as suit schedule 'B' and 'C' properties. On the other hand, the defendant No. 1 and 2 in the written statement claimed their rights over land in Sy. No. 117 and 118 to an extent of 2 acre 32 guntas, in total 3 acre 35 guntas and conversion of the said land into non agriculture purpose. They denied the right of the plaintiff over the written statement schedule property i.e., site No. 1 formed in Sy. No. 117 and 118 situated at Nidige Village.

10. The materials on record disclosed that, the evidence of both the plaintiff and the defendants came to be completed and their after on the application filed by the plaintiff seeking for appointment of court commissioner, commissioner warrant came to be issued. At that time, the proposed defendant No. 3 filed the application to come on record as defendant No.3.

11. The counsel for the proposed defendant relied on the judgment of Hon'ble Supreme Court of India reported in 2018 (2) KCCR SN 201 (SC) between Pankajbhai Rameshbhai Zalavadia (deceased) through Lrs and others, wherein it is held that, Order 1 Rule 10 of

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the Code enables the Court to add any person as a party at any stage of the proceedings, if the person whose presence in Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision. Order 1 Rule 10 of the Code empowers the Court to substitute a party in the suit who is a wrong person with a right person. If the Court is satisfied that the suit has been instituted through a bona fide mistake, and also that it is necessary for the determination of the real matter in controversy to substitute a party in the suit, it may direct it to be done. When the Court finds that in the absence of the persons sought to be impleaded as a party to the suit, the controversy raised in the suit cannot be effectively and completely settled, the Court would do justice by impleading such persons. Order 1 Rule 10(2) of the Code gives wide discretion to the Court to deal with such a situation which may result in prejudicing the interests of the affected party if not impleaded in the suit, and where the impleadment of the said party is necessary and vital for the decision of the suit".

12. On the other hand, the counsel for the plaintiff produced memo with copy of plaint in OS No. 165/2019 to show that the proposed defendant No. 3 has filed suit against various persons in which this plaintiff is one of the defendant and the said suit is for relief of declaration and consequential relief of injunction in respect of 16 guntas of

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land in Sy. No. 118 and 118/2 situated at Nidige Village, Shivamogga.

13. It is clear that, in this case the present application is filed after completion of evidence of both the sides seeking direction to come on record as the defendant No. 3. At this juncture, I would like to place reliance on the Judgment of Hon'ble Apex Court reported in 2022 SCC online SC 1234 between Sudhamayee Pattnaik and Others V/s Bibhu Prasad Sahoo and Others, wherein it is held that, at the outset, it is required to be noted that the defendants in the suit filed application under Order 1 Rule 10 CPC and prayed to implead the subsequent purchasers as party defendants. The suit is for declaration, permanent injunction and recovery of possession. As per the settled position of law, the plaintiffs are the domius litis. Unless the court suo moto directs to join any other person not party to the suit for effective decree an/or for proper adjudication as per Order 1 Rule 10 CPC, nobody can be permitted to be impleaded as defendants against the wish of the plaintiffs. Not impleading any other person as defendants against the wish of the plaintiffs shall be at the rist of the plaintiffs. Therefore, subsequent purchasers in the application submitted by the original defendants, that too against the wish of the plaintiffs.

14. Hence, it is clear that the parties cannot be impleaded as defendants against the wish of the plaintiffs which will put the plaintiffs at risk. The above judgment of Hon'ble Apex Court is aptly applicable to the facts on hand as even in this suit the present application are filed by the

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proposed defendants whereas there is no claim against them sought for by the plaintiff. If at all the proposed defendants have a specific claim they can urge the same before the court by initiating necessary proceedings and cannot claim the same in a suit filed by the plaintiff showing specific cause of action against the defendant No. 1 and 2 on record. In the said circumstances, this court is of the opinion that the proposed defendant No.3 is not the necessary party for adjudication of the matter in dispute. Accordingly, I proceed to pass the following:

ORDER I.A. No. 10 filed by the proposed defendant No. 3 under Order 1 Rule 10 R/w Section 151 of CPC are hereby rejected.

No order as to costs".

4. As can be seen from the impugned order, the Trial

Court has come to the correct conclusion that in the dispute

between respondent No.1-plaintiff and defendant Nos.2 and 3, the

petitioner-impleading applicant, who claims independent right, title

and interest over the suit schedule property cannot be said to be a

proper and necessary party, particularly when respondent No.1-

plaintiff being the dominus litus does not want to proceed against

the impleading applicant and no relief is sought for against him.

The Trial Court has also taken into account the undisputed fact that

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the petitioner has also instituted one more suit in O.S.No.165/2019

against respondent No.1-plaintiff herein on the file of the I

Additional Senior Civil Judge, Shivamogga, which is also pending

adjudication. Under these circumstances, I am of the considered

opinion that the impugned order passed by the Trial Court cannot

be said to have occasioned failure of justice warranting interference

by this Court as held by the Apex Court in the case of Radhey

Shyam Vs. Chhabi Nath reported in (2015) 5 SCC 423.

5. In the result, I pass the following:

ORDER

i) The petition is disposed of without interfering with the impugned order passed by the Trial Court.

ii) It is however made clear that any compromise, settlement, judgment, decree, order etc., passed/to be passed in O.S.No.201/2016 shall not be binding upon the petitioner nor affect or cause prejudice to his rights, title, interest or possession, if any, over the suit schedule property or the rights and contentions of the parties in O.S.No.165/2019 and all rival contentions between the parties are kept open and no opinion is expressed on the same.

Sd/-

JUDGE BMC