Back
High Court of Karnataka
THE HONOURABLE MR. JUSTICE ARAVIND KUMAR
G.V. Satish Reddy & Another
Versus
M/s. Shiva Distilleries Limited
Writ Petition Nos.2773-74 of 2010 (GM-CPC)
Decided on : 22-06-2010
SPECIFIC RELIEF ACT, 1963 - Section 10: [Aravind Kumar, J] Suit for specific Performance - Application for impleading by subsequent agreement holders on the ground that in part performance they have been put in possession of property - Allowed by Trial Court - Challenged by Plaintiff - Earlier agreement in favour of plaintiffs registered - Subsequent agreement unregistered - Held, Order1, Rule 10 (2) covers two types of cases (a) of a party who ought to have been joined but not joined and is a necessary party, and (b) of a party without whose presence the question involved in the suit cannot be completely and effectively decided. The former is called necessary party and the latter is called proper party. Sub-rule (2) of Order 1 Rue10 of Civil Procedure Code, therefore, is attracted when the question is covered by one of the above. A party seeking such a joinder as a proper part will have to prima facie establish that such a party has interest in the subject-matter of the litigation and as such should be before the Court. The simple test in such controversy would be as to whether the presence of such a party is appropriate in view of the subject-matter in adjudication. If the answer be in the affirmative, joinder can be permitted. By reason of direct interest in the subject-matter or even by reason of eventual reliefs sought, such a test would be answered. Power being there, it is all a matter of appreciation of the controversy in issue and it is possible to be looked into while deciding the applications under Order 1, Rule 10 (2) of Code of Civil Procedure so as to avoid multiplicity of litigation and also conflicting decisions being passed in different suits which will be safeguarded if such applications are allowed, if the applicant sought to come on record is necessary and proper party.
In the instant case writ petitioners have instituted a suit in respect of enforcement of a registered agreement to sale dated 31.05.2004 and the supplementary agreement dated 14.08.2004 against defendants 1 to 36. The issue that may arise for consideration and adjudication in this suit is limited to the extent of considering the right of the parties arising out of the contracts in question. If the proposed applicants were to come on record the contours of the case would get deviated in as much as it is specific contention of the proposed applicant that he is in possession of the property and the necessary pleading that would be raised about the possession of the applicant which when raised is required to be develop upon by raising an issue and that would be impermissible in a suit for specific performance as also by Supreme Court in Kasturi vs Iyyamperumal & ors. AIR 2005 SC 2813. In view of the above the order passed by Trial Court cannot be sustained and requires to be quashed. I.A. filed for impleading was dismissed.
Aravind Kumar, J.
This writ petition is directed against the order passed by the 11th Additional City Civil Judge, Bangalore in O.S.No.904/2008 dated 18.01.2010 whereunder I.A.No.2 filed by the respondent herein to get themselves impleaded as defendant No.37 has been allowed.
2. The facts in nutshell leading to the filing of this writ petition are as under:
The writ petitioners herein instituted a suit O.S.No.904/2008 on the file of the City Civil Judge, Bangalore seeking enforcernent of agreement of sale dated 31.05.2004 and subsequent agreement dated 14.08.2004 which is said to be registered and for other consequential reliefs. On service of notice defendants 1 to 18 have entered appearance and have filed written statement. Subsequently defendants 19 to 36 have got themselves impleaded on the basis of the application filed by them. When matter stood thereat an application namely I.A.No.2 came to be filed by the respondent herein under Order 1, Rule 10(2) of Code of Civil Procedure to get itself impleaded as defendant on the ground that it is a proper and necessary party to the suit since it had obtained an agreement of sale dated 18.04.1994 and 26.09.1995 from defendants 1 to 18 and in part performance of these two agreements they have been put in possession of the property which has been described as suit schedule property in the suit in question and hence it was contended that they have right to contest the suit and defend their possession. The said application came to be resisted by the plaintiffs contending that they are not necessary and proper parties and the scope of the suit being limited there would not be any occasion to consider their claim in this suit and as such plaintiffs sought for dismissal of the application.
3. On considering the rival contentions Trial Court by its order dated 18.01.2010 allowed the application and permitted the applicant to come on record as defendant No.37. It is this order which is impugned in the present writ petition.
4. I have heard Sri.D.R.Sundaresh, learned Counsel appearing for the petitioners and Sri.Bhanu Prasad, learned Counsel appearing for the respondent.
5. Sri.D.R. Sundaresh, learned Counsel for petitioners would submit that order of Trial Court is erroneous for the following reasons:
a) The agreement of sale on which the suit of petitioner was based namely O.S.No.904/2008 was a registered agreement and same prevails over an unregistered agreement which is now claimed by impleading applicant.
b) In a suit for specific performance a rival claimant cannot enforce his right in their suit and a separate suit has to be filed by it.
c) The plaintiff being a dominus litus he has a right to choose his parties to the suit.
d) In order to overcome the law of limitation applicant cannot be allowed to come on record, particularly when he has not exercised his right under the alleged agreement of sale which he possesses.
6. In support of his submission he relies upon the following judgments:
1) AIR 2005 SC 2813, Kasturi Vs. Iyyamperumal and Others
2) 1968 Mysore LJ Page 243, Gundu Baballi Banajwade Vs. Raghavendra Harikale and Others, and seeks for allowing of the writ petition and quashing of the order passed by Trial Court by Issue of writ of certiorari.
7. Per contra Sri Bhanu Prasad, learned Counsel for the applicant/respondent while defending the order passed by the Trial Court would submit that by virtue of agreement of sale dated 18.04.1994 and also the subsequent agreement dated 26.09.1995 applicant has been put in possession of the property as is evident from Clause 30 of the said agreement and as such to protect his possession he is entitled to come on record as a necessary and proper party to defend his possession which property is the subject-matter of the present lis. He would also submit that still applicant has time to enforce his right under the agreement inasmuch as there was litigation pending in respect of this property between the owners of the p
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
