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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
S. Abdul Nazeer, J.
M. Narayana and Ors. - Appellants
Vs.
Ramakka and Ors. - Respondents
Regular First Appeal No. 761/2003 (PAR)
Decided On : 28-01-2016
CODE OF CIVIL PROCEDURE, 1908 - Order 1, Rule 10(2): [S. Abdul Nazeer, J] Impleadment - Application by subsequent purchaser in suit for specific performance - In the instant case, it is true that the application for impleadment has been made under Order 1, Rule 10 read with Section 151 of the CPC. However, under Order 22, Rule 10, in cases of assignment or creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court be continued by or against the person to or upon whom such interest has come or devolved. Though the application has been made under Order 1, Rule 10, the enabling provision of Order 22, Rule 10 CPC could always be invoked if the fact situation so demanded. The view that the applicant being a lis pendens purchaser is a necessary party to this appeal. His application to come on record in the FDP has already been allowed by the trial Court.
CODE OF CIVIL PROCEDURE, 1908 - Order 1, Rule 10(2): [S. Abdul Nazeer, J] Impleadment of parties - Plaintiff being dominus litis, may choose persons against whom he/she wishes to litigate - He/she cannot be compelled to sue a person against whom he/she does not seek any relief - Thus, a person who is not a party, has no right to be impleaded against the wishes of plaintiff - Exception to general rule is that a proper and necessary party may be added by the Court.
This general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure. This provision makes it clear that a Court may, at any stage of the proceedings either upon or even without application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party; (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the Court may be necessary in order to enable the Court to effectively and completely adjudicate upon settle the question involved in the suit. Thus the Court is given the discretion to add as a party any person who is found to be a necessary party or proper party. The power of a Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will include necessarily an enforceable legal right.
CODE OF CIVIL PROCEDURE, 1908 - Order 22, Rule 5 & Section 11: [S. Abdul Nazeer, J] Legal representatives - Who are - Determination of question as to - Is only for purpose of bringing LRs on record for conducting proceedings - Does not operate as res judicata.
CODE OF CIVIL PROCEDURE, 1908 - Order 22, Rule 10: [S. Abdul Nazeer, J] Alienee pendent lite - The plaintiff is not bound to make him a party and the alienee has no absolute right to be joined as a party. But the Court has a discretion in the matter which must be judicially exercised and an alienee will ordinarily be joined as a party to enable him to protect his interest. When an assignee pendent lite is joined as a party, the suit is not a new suit, but the same suit continues by or against him and if he is made a party in an appeal, he cannot raise any defence which his assignor could not have put forward. He further cannot take a stand contrary to the one taken by his predecessor in interest.
TRANSFER OF PROPERTY ACT, 1882 - Section 52: [S. Abdul Nazeer, J] Doctrine of Lis pendens - Doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a Court in a suit should be binding not only on the litigating parties but on those who derive title pendent lite. This provision does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation.
S. Abdul Nazeer, J.
1. First respondent/plaintiff filed the suit O.S. No. 4349/1986 against the appellants and respondent Nos. 2 to 4 on the file of 15th Additional City Civil Judge, Bangalore City, for partition and separate possession of the suit schedule properties. Respondent Nos. 2 to 4 are defendant Nos. 1, 4 and 5. The suit was decreed by the trial Court on 7.3.2003 by granting the first respondent/plaintiff 1/6th share in the suit schedule properties. The appellants/defendant Nos. 2 and 3 have challenged the said decree in this appeal.
2. This Court allowed the appeal in part on 21.7.2008 by holding that plaintiff/first respondent is entitled for 1/5th share in the suit schedule properties.
3. The appellants filed SLP (Civil) No. 21814/2008 before the Hon'ble Supreme Court challenging the said decree. Special leave was granted in the said case and the matter was registered as Civil Appeal No. 13686/2015. During the pendency of the appeal, respondent No. 1-Smt. Ramakka died. An application I.A. No. 2 filed by other parties to the suit to come on record as her L.Rs was allowed by the Supreme Court. Kumari Thejeswani Shantha Kumar, the applicant in I.A. No. 4/2016 had also filed I.A. No. 3 in the appeal before the Supreme Court. The Civil appeal was allowed by setting aside the decree of this Court and the matter was remanded to this Court by the Hon'ble Supreme Court. I.A. No. 3 filed by the applicant in I.A. No. 4/2016 was pending when the matter was remanded to this Court.
4. The applicant in I.A. No. 4/2016 claims to be the adopted daughter of Smt. Ramakka. Therefore, she wants to come on record as the L.R. of deceased Ramakka. I.A. No. 2/2016 is filed for setting aside abatement and I.A. No. 3/2016 for condonation of delay.
5. I.A. No. 1/2016 is filed by Dr. M. Shantha Kumar for impleading himself as additional respondent on the ground that he had purchased the property from Ramakka.
6. These applications are opposed by the appellants on the ground that the alleged adoption of Kumari Thejaswani Shanta Kumar by Smt. Ramakka was during the lifetime of her husband. Therefore, the adoption is void. The applicant-Dr. M. Shantha Kumar in I.A. No. 1/2016 is a lis pendens purchaser of the property. Therefore, he cannot be impleaded as additional respondent in the appeal.
7. Smt. Pramila Nesargi, learned Senior Counsel appearing for the applicant in I.A. No. I/2016 submits that the applicant is a lis pendens purchaser of the property. There is no bar under Section 52 of the Transfer of Property Act, 1882 (for short TP Act) for transfer of property during the pendency of the litigation. However, his title is subservient to the rights of his vendor and is also subject to the direction which may eventually be passed in the appeal. Therefore, he is a necessary party to this proceedings. She further submits that the application filed by Dr. M. Shantha Kumar to come on record in the final decree proceedings in FDP No. 38/2011 has already been allowed by the trial Court.
8. Sri G.L. Vishwanath, learned Counsel appearing for the applicant in I.A. No. 4/2016 submits that the applicant is an adopted daughter of Smt. Ramakka and she has succeeded to the estate of the deceased. Therefore, she is a necessary party to this appeal.
9. On the other hand, Smt. Nalini Chidambaram, learned Senior Counsel appearing for the appellants has opposed the applications. It is her submission that lis pendens purchaser has no right to get himself impleaded in the proceedings having regard to Section 52 of the TP Act. In this connection, she has relied on the decision of the Supreme Court in Sarvinder Singh v. Dilip Singh & Others, (1996) 5 SCC 539. It is further argued that it is not permissible in law for making an adoption by the wife without the consent of her husband during his lifetime. The alleged adoption of the applicant in I.A. No. 4/2016 by Smt. Ramakka during the lifetime of her husband is not valid in law. Therefore, the applicant in I.A. No. 4
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