The High Court held that tenants cannot seek impleadment in a suit challenging the sale of tenanted property. Consequently, an eviction petition need not be stayed pending the title suit, though rentals must be deposited.
Cleared for impleadment orders quashed; eviction petition to continue; rentals to be deposited pending title suit outcome.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
W.P. No.32657 OF 2015 c/w W.P.No.32659 OF 2015
W.P. No.11437 OF 2019
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2020
BEFORE
THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION No.32657 of 2015 c/w WRIT PETITION NO.32659 OF 2015 WRIT PETITION NO.11437 OF 2019 (GM-CPC)
IN WRIT PETITION NO.32657 OF 2015 BETWEEN:
JODHRAJ S/O LATE UDAYARAJ AGED 54 YEARS R/AT NO.61, GOVINDAPPA ROAD BASAVANAGUDI, BANGALORE-560 004
...PETITIONER
(BY SRI. B.S. SATYANAND, ADVOCATE)
AND:
W.P. No.32657 OF 2015 c/w W.P.No.32659 OF 2015
W.P. No.11437 OF 2019
2
R/AT AJMERA HOUSING COMPLEX (COLONY) Q-A3/3, FLAT NO.101, PIMPRI PUNE-411 018, MAHARASTRA STATE.
SINCE DEAD BY HER LEGAL HEIRS:
... RESPONDENTS
(BY SRI. A.R. HOLLA, ADVOCATE FOR R1;
W.P. No.32657 OF 2015 c/w W.P.No.32659 OF 2015
W.P. No.11437 OF 2019
3
SRI. NAREN, ADVOATE FOR SRI. K.S. CHANDRAHAS, ADVOCATE FOR R5 (A & C) & R6; R1-SERVED; VIDE ORDER DATED 10.06.2016 NOTICE DISPENSED WITH IN RESPECT OF R2 & R4;
R5 (B) IN I.A-1/17 IS R6 IN WP R5 (B) SERVED; V/O DATED 11.7.2019 R5 (B)(C) & R6 ARE TREATED AS LRS OF DECEASED R5(A))
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 06.02.2015 AND 10.02.2015 PASSED ON INTERLOCUTORY APPLICATION UNDER ORDER 1 RULE 10(2) R/W SECTION 151 OF CPC FOUND AT ANNEXURE-A IN O.S.NO.8567/2013 BY THE FTC-8, C/C XXXVII ADDL, CITY CIVIL JUDGE, BANGALORE (CCH.NO.38) AND ETC.
IN WRIT PETITION NO.32659 OF 2015 BETWEEN:
JODHRAJ S/O LATE UDAYARAJ AGED 57 YEARS R/AT NO.61, GOVINDAPPA ROAD BASAVANAGUDI, BANGALORE-560 004
...PETITIONER
(BY SRI. B.S. SATYANAND, ADVOCATE)
AND:
W.P. No.32657 OF 2015 c/w W.P.No.32659 OF 2015
W.P. No.11437 OF 2019
4
R/AT NO.375, CHANDRAHASA COMPLEX GROUND FLOOR, 5TH MAIN UPPER PALACE ORCHARDS BANGALORE-560 080
SINCE DEAD BY HER LEGAL HEIRS:
W.P. No.32657 OF 2015 c/w W.P.No.32659 OF 2015
W.P. No.11437 OF 2019
5
(BY SRI. NAREN, ADVOCATE FOR R5 (A & C) & R6; VIDE ORDER DATED 11.07.2019, R5 (B, C) & R6- LRS OF DECEASED R5(A); R5(B)-SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 13.03.2015 PASSED ON INTERLOCUTORY APPLICATION UNDER SECTION 151 OF CPC IN O.S.NO.8567/2013 BY THE FTC-8, C/C XXXVII ADDL, CITY CIVIL JUDGE, BANGALORE (CCH.NO.38) AND ETC.
IN WRIT PETITION NO.11437 OF 2019 BETWEEN:
JODHRAJ S/O LATE UDAYARAJ AGED 57 YEARS R/AT NO.61, GOVINDAPPA ROAD BASAVANAGUDI, BANGALORE-560 004 ...PETITIONER
(BY SRI. B.S. SATYANAND, ADVOCATE)
AND:
W.P. No.32657 OF 2015 c/w W.P.No.32659 OF 2015
W.P. No.11437 OF 2019
6
AGED ABOUT 48 YEARS "SRI. GANESHA STORES" NO.2/3, LALBHAGH MAIN ROAD BANGALORE-560 027
... RESPONDENTS
(BY SRI. NAREN, ADVOCATE FOR SRI. K.S. CHANDRAHASA, ADVOCATE FOR R1(C) & R2; V/O DATED 29.03.2019 R1 (B&C) TREATED AS LRS OF R1 (A) & NOTICE TO R1 (B & C) IS NOT NECESSARY)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH OR SETTING ASIDE THE ORDERS DATED 18.02.2019 PASSED BY THE LEARNED XIX ADDL. SCJ, BANGALORE CITY, IN SC NO.264 OF 2014 AS PER ANNEXURE-A.
*********
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
these petitions, with the consent of learned
counsels for the parties, the matters are clubbed,
W.P. No.32657 OF 2015 c/w W.P.No.32659 OF 2015
W.P. No.11437 OF 2019
7
heard together and disposed of by this common order.
2.2. W.P.No.32659/2015 has been filed seeking for certiorari to quash the order dated 13.3.2015 passed on Interlocutory Application filed under Section 151 CPC in
O.S.NO.8567/2013 by the FTC-8, transferred to XXXVII Addl. City Civil Judge, Bangalore.
W.P. No.32657 OF 2015 c/w W.P.No.32659 OF 2015
W.P. No.11437 OF 2019
8
W.P. No.32657 OF 2015 c/w W.P.No.32659 OF 2015
W.P. No.11437 OF 2019
9
deed dated 20.06.2013 executed by
defendants No.1 to 3 therein who are respondents No.2, 3 and 4 herein and has sought seeking for a declaration that the said sale deed is not binding on the plaintiff therein who is respondent No.1 herein.
W.P. No.32657 OF 2015 c/w W.P.No.32659 OF 2015
W.P. No.11437 OF 2019
10
had also contended that the trust property could not be sold to anyone muchless the petitioner and in view thereof, they contended that they had a subsisting interest in the property and therefore, they were necessary and proper parties as legal tenants under Shah Family Trust and were therefore requested to be impleaded as party defendants in the said suit.
3.7. The application having been filed on 19.12.2014, the matter was posted for objection to the said IA and adjourned to 21.1.2015 and then again on 6.2.2015 when considering that the plaintiff had not objected to the application, the trial court allowed the said application for impleadment.
W.P. No.32657 OF 2015 c/w W.P.No.32659 OF 2015
W.P. No.11437 OF 2019
11
for stay of further proceedings in S.C.No.264/2014 pending on the file of 19th Addl. Small Causes Judge on the ground that until rights of the parties are adjudicated in the said proceedings, the eviction proceeding in S.C.No.264/2014 cannot be proceeded with. The said application came to be allowed, which is the subject matter of challenge in W.P.No.32659/2015. The said court stayed all further proceedings in S.C.No.264/2014 till disposal of the suit on merits.
3.9. The said order having been passed on 13.06.2015, the petitioner herein is stated to have filed a memo on 19.1.2019 Annexure-H (W.P.No.11437/2019) contending that in view of the decision of the Hon’ble Apex Court in the case of Asian Resurfacing of Road Agency Pvt. Ltd., and another –v- Central Bureau of Investigation reported in AIR
W.P. No.32657 OF 2015 c/w W.P.No.32659 OF 2015
W.P. No.11437 OF 2019
12
2018 SC 2039 any order of stay granted can only be in force for a period of six months from the order of stay unless extended by reasoned order. Therefore, the petitioner recently approached the court seized of S.C.No.264/2014 with a memo to continue with the proceeding contending that the order passed on 13.03.2015 in O.S.No.8567/2013 had lapsed after an expiry of six months.
dated 18.2.2019 holding that the order dated 13.3.2015 in O.S.No.8565/2013 was passed after contest and hearing both sides and it was not an exparte order. Aggrieved by the same, the petitioner has filed W.P.No.11347/2019.
W.P. No.32657 OF 2015 c/w W.P.No.32659 OF 2015
W.P. No.11437 OF 2019
13
4.1. respondents No.5 and 6 being tenants have no right, title or interest in the property so as to seek for their impleadment in O.S.No.8567/2013 which is a suit filed by one of the trustees against other trustees and the petitioner herein challenging the sale deed executed by the defendants-trustees in favour of the petitioner herein.
4.2. Merely being a tenant would not confer any right to seek for such impleadment and furthermore they are not necessary or proper parties for the purpose of adjudication of the disputes in the said suit.
4.3. Merely because the respondents NO.5 and 6 would be affected by the order passed in O.S.No.8567/2013 would not give them a right to seek for their impleadment in the said proceedings.
W.P. No.32657 OF 2015 c/w W.P.No.32659 OF 2015
W.P. No.11437 OF 2019
14
4.4. As regards the orders passed on IA under Section 151 of CPC, he submitted that respondents No.5 and 6 had earlier filed an application under Section 10 of CPC seeking for stay of the proceedings in S.C.No.264/2014 contending that the suit in O.S.No.8567/2013 was prior to the said proceeding in S.C.No.264/2014 and the same ought to be stayed until disposal of the suit in O.S.No.8567/2013. The said application having been rejected, the mischief which was sought to be committed by respondents NO.5 and 6 by filing the application under Section 10 of CPC has been achieved by filing an application under Section 151 of CPC inasmuch as the eviction proceedings in S.C.No.264/2014 have been stayed on such a mischievous application.
W.P. No.32657 OF 2015 c/w W.P.No.32659 OF 2015
W.P. No.11437 OF 2019
15
stay of the proceeding in S.C.No.264/2014 having been passed on 13.3.2015, the same would expire on 12.09.2015 unless extended. Admittedly the said order having not been extended, the court ought to have allowed the memo filed in the suit in O.S.No. 8567/2013, therefore, the dismissal of the memo is not proper.
5.1. the suit in O.S.No.8567/2013 relating to title of the property, respondents No.5 and 6 would be affected by any outcome in the said suit and therefore, they are proper and necessary parties.
W.P. No.32657 OF 2015 c/w W.P.No.32659 OF 2015
W.P. No.11437 OF 2019
16
5.3. The dismissal of the memo is also proper and correct in that the order of stay having been passed after hearing the parties the said order of stay could not be vacated on the basis of a memo.
W.P. No.32657 OF 2015 c/w W.P.No.32659 OF 2015
W.P. No.11437 OF 2019
17
W.P. No.32657 OF 2015 c/w W.P.No.32659 OF 2015
W.P. No.11437 OF 2019
18
9.6. In view of the same, I answer point no. 1 by holding that that a tenant like respondents NO. 5 and 6 are not proper and necessary parties in a proceeding where the title of the property tenanted is questioned. In view
W.P. No.32657 OF 2015 c/w W.P.No.32659 OF 2015
W.P. No.11437 OF 2019
19
thereof, the order dated 6.2.2015 and 10.2.2015 passed on the IA under Order 1 Rule 10(2) r/w 151 of CPC is hereby quashed by issuance of a writ of certiorari.
10.1.This question becomes academic on account of the answer to point No.1 inasmuch as the impleading application having been rejected and the order dated 6.2.2015 having been quashed, question of respondents NO.5 and 6 filing an application under section 151 CPC in the said suit would not arise. However, this aspect is dealt with so as to avoid any future controversies.
10.2.Though Suit in O.S.No.8567/2013 is pending, there are no orders which have been passed therein restraining respondents from
W.P. No.32657 OF 2015 c/w W.P.No.32659 OF 2015
W.P. No.11437 OF 2019
20
exercising any ownership rights. The sale deed continues to be in force and respondent no.4 can therefore continue to exercise his ownership on the property subject to the Judgment passed in the said suit. In view thereof, exercising the said ownership rights, the petitioner has filed the proceedings in S.C.No.264/2014 seeking for eviction of respondents NO.5 and 6 from the said property. If the said proceedings were to be dismissed, there would be no problem, however problem would arise if the eviction is ordered and the sale deed in favour of the petitioner is declared to be void in O.S.No.8567/2013, then the rights of the tenants would be affected.
10.3.However, merely because suit in O.S.No.8567/2013 is pending would not
require the proceedings in S.C.No.264/2014–
W.P. No.32657 OF 2015 c/w W.P.No.32659 OF 2015
W.P. No.11437 OF 2019
21
to be stayed until the determination and final Judgment in O.S.No.8567/2013 is passed.
10.4.In view thereof, I am of the considered opinion that ends of justice would be met if the proceedings in S.C.No.264/2014 could continue, however result of the said proceedings will be subject to the result of the suit in O.S.No.8567/2013. Interest of all parties can be protected by directing respondents No.4 and 6 to deposit the rentals in S.C.No.264/2014.
10.5.In the event of respondents No.5 and 6 suffering an order of eviction in S.C.No.264/2014 they can challenge the said Judgment.
11. Point No. 3: What order?
In view of the above discussion, W.P.No.11437/2019 is dismissed. W.P.Nos.32657/2015 & 32658/2015 is
W.P. No.32657 OF 2015 c/w W.P.No.32659 OF 2015
W.P. No.11437 OF 2019
22
allowed and W.P.No.32659/2015 is partly allowed in
terms of the above.
Sd/JUDGE
ln*
3 issues framed by the court
Whether a tenant can seek for impleadment in proceedings where the title of the tenanted property is questioned?
Whether eviction proceedings can be stayed pending the resolution of a dispute regarding the title of the plaintiff in the eviction suit?
Whether an order of stay expires automatically after six months if not extended?
Jodrjaj S/o Late Udayaraj
Smt. Praba Bharat Shah
Sri. Shashank.M. Shah
Smt. Latha B Doshi
Smt. Chaya U Vora
Sri. K.P. Padmanabha Rao
Suraj Govindaraj
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
