Karnataka High Court

Sri. Devananda. R vs Chief Divisional Retail Sales Manager on 8 February, 2024

Author: S.R.Krishna Kumar

Bench: S.R.Krishna Kumar

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                                                         WP No. 3503 of 2024




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 8TH DAY OF FEBRUARY, 2024

                                         BEFORE
                    THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
                       WRIT PETITION NO. 3503 OF 2024 (GM-CPC)
            BETWEEN:
            SRI. DEVANANDA. R
            S/O. LATE T. B. RAMANNA,
            AGED ABOUT 63 YEARS,
            DEALER INDIAN OIL CORPORATION LIMITED,
            SRI. RAGHAVENDRA SERVICE STATION,
            NH-206, TARIKERE, R/AT MANDAL KHAN STREET,
            KALIDASANAGARA,
            TARIKERE - 577 228.
                                                                 ...PETITIONER
            (BY SRI. H MALATESH.,ADVOCATE)
            AND:

            1.     CHIEF DIVISIONAL RETAIL SALES MANAGER
                   INDIAN OIL CORPORATION LIMITED,
                   INDIAN OIL BHAVANA, ABBAKKA NAGARA,
                   KULLURU PERI ROAD, KOTHARA,
                   MANGALURU - 575 006.

            2.     SRI. T. E. VASUDEVAMURTHY
Digitally          S/O. LATE ESHWARAPPA,
signed by
VANDANA S          AGED ABOUT 58 YEARS,
                   MERCHANT, R/O.M . THIMMAIAH STREET,
Location:
                   TARIKERE TOWN, TARIKERE TALUK,
HIGH
COURT OF           CHIKKAMANGALURU DISTRICT-577 228.
KARNATAKA                                                     ...RESPONDENTS


                  THIS W.P IS FILED UNDER ARTICLE 226 AND 227 OF THE
            CONSTITUTION OF INDIA PRAYING TO a) SET ASIDE THE ORDER
            PASSED IN RA NO. 68/2022 BY THE SENIOR CIVIL JUDGE AND PRL.
            JMFC, TARIKERE ON IA NO. III, FILED UNDER ORDER 1 RULE 10(2) R/W
            SECTION 151 OF CPC, REJECTING THE APPLICATION VIDE ORDER
            DATED 03/01/2024, PRODUCED AS ANNEXURE-A AND ETC.

                 THIS PETITION, COMING ON FOR ORDER, THIS DAY, THE COURT
            MADE THE FOLLOWING:
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                                                NC: 2024:KHC:5550
                                             WP No. 3503 of 2024




                                ORDER

This petition by the impleading applicant in R.A.No.68/2022

on the file of Senior Civil Judge and Prl.JMFC, Tarikere, is directed

against the impugned order passed on I.A.No.3 filed under Order 1

Rule 10(2) CPC by the petitioner / impleading applicant, whereby

the said application seeking impleadment in the appeal was

rejected by the first appellate court.

2. Heard learned counsel for the petitioner and perused the

material on record.

3. The material on record will indicate that the 2nd

respondent - plaintiff instituted the suit in O.S.No.448/2019 against

the 1st respondent - defendant for ejectment and other reliefs in

relation to the suit schedule immovable property. The said suit is

being contested by the 1st respondent. The trial court passed the

judgment and decree dated 15.09.2022 decreeing the suit in favour

of the 2nd respondent against the 1st respondent. Aggrieved by the

said judgment and decree, the 1st respondent filed an appeal in

R.A.No.68/2022, which is pending before the first appellate court.

During the pendency of the said appeal, the petitioner herein

claiming independent right, title, interest and possession over the

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suit schedule property, filed an application seeking impleadment

under Order 1 Rule 10(2) CPC and the same having been rejected,

the petitioner is before this Court by way of the present petition.

4. A perusal of the impugned order will indicate that the first

appellate court has come to the correct conclusion that the

petitioner was not a proper or necessary party to the appeal,

especially when the petitioner was not arrayed as a party to the

suit or the judgment and decree of the trial court. While, coming to

the said conclusion, the first appellate court has held as under:-

"The instant application has been filed by applicant namely Sri. Devananda R., (third party applicant) seeking permission to come on record as respondent No.2.

2. In the affidavit annexed to the application, the third party applicant deposed that there was an agreement between Indian Oil Corporation and the respondent No.1 herein. The Indian Oil Corporation has issued letter of intent in his favour to operate retail sale hub in the suit schedule premises. As per the letter of intent, he is in possession of the suit schedule property and operating on behalf of Indian Oil Corporation. The respondent No.1 herein is aware of his possession, even then failed to make him as party to the proceedings. He was not aware of filing of suit for eviction as against Indian Oil Corporation.

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3. Recently, he met the sales Manager of Indian Oil Corporation and came to know about the case and order of eviction in the original suit by the trial court. Since he is in possession of the suit schedule property, is also necessary party to the suit. He is having good grounds to succeed in the case. He has not get an opportunity to contest the matter on merits. Hence, this application. If application is not allowed, he will be put to great loss and hardship. Per contra, no harm or prejudice would cause to other side.

4. The application is objected by the regular respondent. It contended that the third party applicant is no way connected to the present case. Hence, application filed by him is not maintainable either in law or on facts. The third party applicant is not necessary or proper party to the suit. He is not party in the original suit as well.

5. The real dispute is in between Indian Oil Corporation and the respondent Vasudeva Murthy. The respondent / plaintiff is the owner of the suit schedule property, the appellant / respondent is tenant under the plaintiff. The agreement is in between the appellant and respondent in respect of the suit schedule property and the suit is in between landlord and tenant. The proposed respondent is neither tenant nor having any agreement.

6. The defendant company has filed detailed written statement and cross-examined PW.1 as well. But it is nowhere contended that the proposed respondent is sub tenant over the suit schedule property. Now, the third party applicant came up with this application that too after disposal of the suit on merits. In the appeal memo also, there is no

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nothing about the proposed respondent. The proposed respondent was neither party to the suit nor having any interest over the suit schedule property. There is no any agreement in between the landlord and the proposed respondent.

7. The present application has been filed by the proposed respondent in collusion with the appellant in order to drag on the proceedings. The plaintiff already filed execution petition to get execute the decree passed by the trial court. The proposed respondent is aware of the said fact. Hence, application is not tenable in the eye of law, liable to be rejected.

8. Heard parties to the application.

9. The following points arise for my consideration;

1. Whether the proposed respondent No.2 is necessary or proper party to the suit?

2. What order?

10. My answers to the above points are hereunder:

Point No.1: In the Negative

Point No.2: As for the final order for the following;

REASONS

11. POINT No.1: The proposed respondent No.2 (third party applicant) intends to come on record only for the reasons that he is running retail sales hub in the suit schedule property under Indian Oil Corporation based on letter of intend issued by the said company.

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12. The regular respondent herein is the landlord and he had filed the suit before the trial court for the relief of possession. The suit filed by him was decreed by the trial court, the Indian Oil Corporation is directed to handover vacant possession of the suit schedule property in favour of the plaintiff / respondent herein within 3 months. Being aggrieved by the same, the Corporation preferred this regular appeal. Admittedly, the proposed respondent No.2 was not party to the suit before the trial court. Admittedly, there was no any agreement or understanding in between the landlord and the present third party applicant. The agreement is in between the Corporation and landlord as discussed supra.

13. The third party applicant himself has stated that he is running retail hub under the letter of intent issued by Corporation in his favour. Hence, it is crystal clear that the proposed respondent is running retail hub under the Corporation and not under the landlord. Furthermore, the Corporation has filed detailed written statement before the trial court and it has never taken any contention that the proposed respondent is running retail sale hub over the suit schedule property, he is also necessary party to the suit. Even otherwise, the proposed respondent No.2 is working under the Corporation and as per the letter of intent issued by the Corporation. He is no way related either to the landlord or to the suit schedule property. He is nothing to do in the present appeal in which the dispute is between the landlord and tenant.

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14. Furthermore, it is not the case of the applicant that he has independent right over the suit schedule property other than the letter of intent issued by the Corporation. No relief is sought by the plaintiff against the third party applicant. The third party applicant cannot be permitted to come on record as respondent against the wish of the plaintiff. Hence, I am of the opinion that the third party applicant is neither necessary nor property party to the suit. The presence of the third party applicant is not at necessary in the instant appeal. Accordingly, I answer point No.1 in Negative.

15. Point No.2: For the reasons stated above, I proceed to pass the following:

ORDER

The application filed by the third party applicant under Order I Rule 10(2) R/w Sec.151 of CPC at IA No.III is hereby rejected.

5. As can be seen from the impugned order passed by the

first appellate court, the same is in conformity with the well settled

principle of law governing addition / impleadment / joinder of parties

and the same cannot be said to have occasioned failure of justice

warranting interference by this Court in the present case as held by

the Apex Court in the case of Radhey Shyam Vs. Chhabi Nath -

(2015) 5 SCC 423. At any rate, any judgment, decree or order

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passed / to be passed in O.S.No.448/2019 and R.A.No.68/2022 will

not be binding upon the petitioner or his alleged right, interest, or

possession over the suit schedule property nor will not be binding

nor affect his right as an obstructor / objector. However, liberty is

hereby reserved in favour of the petitioner to take recourse to such

remedies as available in law including filing obstructor / objector

application, in the event the execution proceedings are initiated by

any of the respondents against each other.

6. Subject to the aforesaid directions and reserving liberty in

favour of the petitioner, petition stands disposed of without