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2022 Supreme(Online)(Kar) 52061
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE R. NATARAJ
WRIT PETITION NO.5860/2021 (GM-CPC)
BETWEEN:
SRI. K.GANESH BABU
S/O LATE SRI. KRISHNAMURTHY SETTY
AGED ABOUT 56 YEARS,
R/AT 'CHAITANYA', NO.26/1-1,
2ND CROSS, M.T.LAYOUT, 13TH CROSS,
MALLESHWARAM,
BEHIND MES COLLEGE,
BENGALURU-560 003.
&PETITIONER
(BY SRI. BIPIN HEGDE, ADVOCATE)
AND:
1 .
DR.HAFEEZUR RAHAMAN
S/O LATE A.ABDUL AZEEZ
AGED ABOUT 80 YEARS,
2 .
SHRI SHAFEEQUR RAHAMAN
S/O LATE A. ABDUL AZEEZ
AGED ABOUT 74 YEARS,
BOTH R/AT NO.559, MINA,
2ND MAIN, TEACHERS COLONY,
KORAMANGALA
BENGALURU-560 034.
3 .
SRI.NAJEEBUR RAHAMAN
S/O LATE A. ABDUL AZEEZ
AGED ABOUT 66 YEARS,
2
R/AT AREHALLI VILLAGE,
BELUR TALUK, HASSAN DISTRICT,
PIN-573 101
4 .
MRS. KAMARUNNISA
D/O LATE ABDUL AZEEZ
W/O LATE ABDUL GANI
AGED ABOUT 91 YEARS,
5 .
MRS. FARHATH HAYATH
D/O LATE A. ABDUL AZEEZ
W/O LATE C.R.MOHD. HAYATH
AGED ABOUT 72 YEARS,
BOTH R/OF AREHALLI VILLAGE
BELUR TALUK, HASAN DISTRICT
PIN-573 101.
REPRESENTED BY THEIR GPA HOLDER
SRI. NAJEEBUR RAHAMAN
AGED ABOUT 66 YEARS,
R/OF AREHALLI VILLAGE,
BELUR TALUK, HASSAN DISTRICT,
PIN-573 101.
6 .
SRI. SYED AFROZ
S/O LATE SYED GHOUSE
AND LATE SMT.RAHAMATHUMMISA
AGED ABOUT 67 YEARS,
R/O AREHALLI VILLAGE,
BELUR TALUK, HASSAN DISTRICT,
PIN-573 101.
7 .
SRI. SYED SHERAZ
S/O LATE SRI. SYED GHOUSE AND
LATE SMT.RAMAHATHUMMISA
AGED ABOUT 67 YEARS,
8 .
MRS. SAIRA RAFATH
D/O LATE SRI. SYED GHOUSE AND
LATE SMT. RAHAMATHUNNISA
AGED ABOUT 51 YEARS,
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BOTH ARE RESIDENTS OF
AREHALLI VILLAGE, BELUR TALUK
HASSAN DISTRICT
PIN-573 101
REPRESENTED BY GPA HOLDER
SRI. SYED AFROZ
S/O LATE SYED GHOUSE,
AGED ABOUT 67 YEARS,
R/O AREHALLI VILLAGE,
BELUR TALUK, HASSAN DISTRICT
PIN-573 101.
9 .
SRI. T.V.NARAYANA MURTHY
S/O T.V.VENKATARAMAIAH
AGED ABOUT 59 YEARS,
R/AT NO.7, 3RD CROSS,
SHANKARAPURAM,
BENGALURU-560 004.
10 . SMT. S.KUSUMA KUMARI
W/O SRI. S.VENKATESHWARLU,
AGED ABOUT 68 YEARS,
R/AT FLAT NO.201,
USHA KIRAN APARTMENT,
NO.25, HAUDINE ROAD, ULSOOR,
BENGALURU-560 042.
11 . SMT. PARIJIT PRAKASH
W/O P.N.PRAKSH
AGED: MAJOR,
R/AT GANAKALLU VILLAGE,
BENGALURU SOUTH TALUK
BENGALURU DISTRICT-560072.
12 . SMT. RAMAMMA
W/O LATE SONNE GOWDA
AGED ABOUT 65 YEARS,
R/O GANAKALLU VILLAGE,
KENGERI HOBLI, BENGALURU SOUTH,
BENGALURU DISTRICT-560072.
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13 . SRI .GALICHOUDAPPA
S/O LATE GALIYAPPA
AGED ABOUT 90 YEARS,
R/O GANAKALLU VILLAGE,
KENGERI HOBLI,
BENGALURU SOUTH TALUK-560072.
&RESPONDENTS
(BY SRI. V.B.SHIVAKUMAR, ADVOCATE FOR RESPONDENT
NO.9;
SRI. RAMESH P. KULKARNI, ADVOCATE FOR RESPONDENT
NO.10;
NOTICE SERVED ON RESPONDENT NO.3;
VIDE ORDER DATED 18.11.2021 SERVICE OF NOTICE TO
RESPONDENT NOS.11 TO 13 STAND WAIVED;
VIDE ORDER DATED 18.11.2021 ISSUANCE OF FURTHER
NOTICE TO RESPONDENT NOS.1 TO 8 STAND DEFERRED;
VIDE ORDER DATED 24.03.2021 COPY SERVED ON SRI.
PRASHANTH CHANDRA S.N., ADVOCATE FOR RESPONDENT
NOS.1 TO 8 IN TRIAL COURT)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 06.03.2021 VIDE ANNEXURE-A
PASSED
BY
THE
24TH
ADDITIONAL
CITY
CIVIL
JUDGE
BENGALURU
CITY,
CCH-6
IN
O.S.NO.9897/2006
AND
CONSEQUENTLY ALLOW THE IA NO.11 FILED BEFORE THE
TRAIL COURT BY THE PETITIONER/APPLICANT UNDER ORDER
22 RULE 10 READ WITH SECTION 151 OF C.P.C.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
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The
petitioner
being
the
applicant
in
O.S.No.9897/2006 before the XXIV Addl. City Civil and
Sessions Judge, Bengaluru (CCH-6), has filed this writ
petition challenging the correctness of the order dated
06.03.2021 passed therein, by which, an application filed
by him under Order XXII Rule 10 of the Code of Civil
Procedure, 1908 (henceforth referred to as 'CPC' for short)
to substitute him as a plaintiff, was rejected.
2.
The parties shall henceforth be referred to as
they were arrayed before the Trial Court.
3.
The suit in O.S.No.9897/2006 was filed to
declare that the plaintiffs are the absolute owners and for
perpetual injunction in respect of land measuring 1 acre 5
guntas
in
Sy.No.3/3,
which
was
re-numbered
as
Sy.No.3/3B and later incorporated as Sy.No.3/3B1 in the
revenue records and situate at Ganakallu village, Kengeri
Hobli, Bengaluru South Taluk.
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4.
The petitioner herein purchased the suit
property from the plaintiffs in terms of a sale deed dated
06.05.2016. He therefore, filed an application under Order
XXII Rule 10 of CPC seeking substitution in the place of the
plaintiffs as an assignee.
5.
This
application
was
opposed
by
the
defendants, who contended that the petitioner was a
pendente lite purchaser and therefore, did not step into
the shoes of the plaintiffs. They claimed that the sale deed
dated 06.05.2016 was a bogus document. They further
claimed that the petitioner had allegedly entered into an
agreement on 14.08.2014 and was fully conscious of the
pendency of the suit and later, got a sale registered on
06.05.2016. They contended that the petitioner was a
fence sitter, who waited for more than 4½ years before
filing an application for substitution in the place of the
plaintiffs. They claimed that the plaintiffs filed an
application on 02.11.2020 to implead the petitioner but
withdrew it without reserving liberty. Thereafter, the
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petitioner filed the present application. They claimed that
the petitioner was not entitled for substitution in the place
of the plaintiffs.
6.
The
Trial
Court
after
considering
the
contentions urged, held that the petitioner being a power
of attorney from the plaintiffs had executed a sale deed
conveying the suit property to himself. It held that the
claim of the plaintiffs was contested by the defendants and
the transaction in favour of the petitioner was during the
pendency of the suit and therefore, in view of the
judgment of the Hon'ble Supreme Court in Amit Kumar
Shaw and another vs Farida Khatoon and another
[(2005) 11 SCC 403] held that an alienee pendente lite
may or may not be joined as a party to the proceeding. It
also referred to a judgment of the Madras High Court in
Raghunath Dass Harakchand vs. Purushotham Dass
[AIR 1936 Madras 7414] that the Court cannot exercise
discretion to allow an applicant to come on record when
there is unexplained delay in doing so. The Trial Court
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hence rejected the application in terms of the order, which
is impugned in this petition.
7.
The
learned
counsel
for
the
petitioner
submitted that there is no prohibition for a person to
purchase a property which is the subject matter of the suit
but, such purchaser is bound by the final outcome of the
suit and his rights will always be subject to the final
outcome of the suit. He submitted that the petitioner had
purchased the suit property from the plaintiffs and
therefore, was entitled to be substituted in the place of the
plaintiffs.
8.
The learned counsel for the respondent Nos.9
and 10 reiterated the contentions that they urged before
the Trial Court.
9.
I have considered the submissions made by
the learned counsel for the parties.
10.
As rightly contended by the learned counsel for
the petitioner, Section 52 of the Transfer of Property Act,
9
1882 does not prohibit the alienation of the property,
which is the subject matter of the proceedings. It only
subjugates the right of such purchaser to the final outcome
of the suit and he would be bound by the same. In the
case on hand, the
