Dismissed

Keshavamurthy v. Smt. Nirmala

Karnataka HC4 Jan 2021WP/2748/2020

Case brief

AI extract

What is this about?

Two writ petitions filed under Article 226 and 227 of the Constitution of India were dismissed. The High Court held that a person buying property pendente lite is entitled to seek impleadment as a successor in interest, citing Apex Court precedents on natural justice and impleadment.

What did the court decide?

The writ petitions were dismissed for lack of merits; the trial judge requested to try and dispose of the suit within ten months.

Keshavamurthy Vs Smt. Nirmala — Civil Procedure and Limitation | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

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DATED THIS THE 4^TH DAY OF JANUARY, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

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WRIT PETITION NO.2748 OF 2020(GM-CPC) C/W WRIT PETITION NO.25371 OF 2019(GM-CPC)

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IN W.P. NO.2748/2020:

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BETWEEN:

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KESHAVAMURTHY, S/O LATE VENAKTASWAMY, AGED ABOUT 68 YEARS, R/O NO.8, MUNISWAMAPPA LANE, S.V.ROAD CROSS, TIGALARAPET, BANGALORE - 560 002.

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...PETITIONER

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(BY SRI.RAJENDRA M S, ADVOCATE)

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AND:

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SMT. NIRMALA, W/O LATE N VENKATESH, AGED ABOUT 2 YEARS,

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V DHANANJAYA, S/O LATE N VENKATESH, AGED ABOUT 43 YEARS,

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V DHANALAKSHMI D/O LATE N VENAKTESH, AGED ABOUT 41 YEARS,

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V GAJENDRA, S/O LATE N VENKATESH AGED ABOUT 38 YEARS,

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V PRATHAP S/O LATE N VENAKTESH, AGED ABOUT 36 YEARS,

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ALL ARE RESIDENTS OF HORMAVU VILLAGE, K.R.PURAM HOBLI, BANGALORE - 560 043.

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JOHN GERALD GEORGE, S/O LATE N.P. GEORGE, AGED ABOUT 54 YEARS, R/AT FLAT NO. 235 SECTOR-C, JAL VAYU VIHAR, KAMMANAHALLI MAIN ROAD, KALYANAGAR POST, BANGALORE - 560 043.

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… RESPONDENTS

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(BY SRI.SUDHAKAR V, ADVOCATE FOR R4; R1-R3 & R5-R6 ARE SERVED AND UNREPRESENTED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF

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THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 10.06.2019 PASSED ON I.A.NO.6 U/O 1 RULE 10 R/W 151 OF THE CPC ON THE FILE OF THE V ADDL. CITY JUDGE AT BANGALORE (CCH-13) IN O.S.NO.3350/2013 VIDE ANNEXURE-A.

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IN W.P.NO.25371/2019:

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BETWEEN:

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SMT. NIRMALA, W/O LATE SRI N VENKATESH, AGED ABOUT 62 YEARS, (SENIOR CITIZENSHIP NOT CLAIMED)

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SRI. V DHANANJAYA, S/O LATE SRI N VENKATESH, AGED ABOUT 43 YEARS,

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SRI V DHANALAKSHMI, D/O LATE SRI N VENKATESH, AGED ABOUT 41 YEARS,

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SRI V GANJENDRA S/O LATE SRI N VENKATESH AGED ABOUT 38 YEARS,

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SRI V PRATHAP S/O LATE SRI N VENKATESH AGED ABOUT 36 YEARS,

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ALL ARE R/AT HORAMAVU VILLAGE, K R PURAM HOBLI, BENGALURU-560043.

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...PETITIONERS

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(BY SRI. SUDHAKAR V, ADVOCATE)

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AND:

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SRI. KESHAVAMURTHY V, S/O SRI VENKATASWAMY, AGED ABOUT 65 YEARS, R/AT NO.8 MUNISWAMY GALLI TIGALARAPET BENGALURU-560002

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SRI JOHN GERALD GEORGE, S/O LATE N P GEORGE, AGED ABOUT 54 YEARS, R/AT FLAT NO.235, SECTOR-C, JAL VAYUVIHAR, KAMMANAHALLI MAIN ROAD, KALYANNAGAR POST, BANGALORE-560043.

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…RESPONDENTS

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(BY SRI. RAJENDRA M S, ADVOCATE FOR R1; SRI. H N VENKATESH, ADVOCATE FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF

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THE CONSTITUTION OF INDIA PRAYING TO CALL FOR ENTIRE RECORDS ON THE FILE OF V ADDL. CITY CIVIL JUDGE, AT BENGALURU (CCH-13) IN O.S.NO.3350/2013 AS PER ANNX-J DATED 10.06.2019 AND QUASH THE IMPUGNED ORDER DATED 10.06.2019 PASSED ON I.A.NO.6 FILED UNDER ORDER 1 RULE 10 R/W SECTION 151 OF CPC, AS AT ANNX-J, ON THE FILE OF V ADDL. CITY CIVIL JUDGE, AT BENGALURU (CCH-13) IN O.S.NO.3350/2013.

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THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY THROUGH PHYSICAL HEARING, THE COURT MADE THE FOLLOWING:-

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ORDER

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Petitioner in W.P.No.2748/2020 is plaintiff in a declaration suit and the petitioners in W.P.No.25371/2019 happen to be the defendants in a suit for declaration in O.S.No. 3350/2013; both they are invoking the writ jurisdiction of this Court for assailing a common order dated 10.06.2019 a copy whereof is at Annexure-A in W.P.No.2748/2020 whereby the learned V Addl. City Civil Judge, Bengaluru has permitted 6^th respondent herein to gain entry to the suit fray on the ground that he has bought the site allegedly formed in the suit land.

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After service of notice, the contesting respondent having entered appearance through his counsel makes submission in justification of the impugned order and the reason on which it is structured.

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Having heard the learned counsel for the parties and having perused the petition papers, this Court declines to grant indulgence in the matter inasmuch as the person who buys the property pendente lite is treated as a successor in interest and therefore he is entitled to seek entry to the suit fray.

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The contention of the learned advocate for the petitioners that the 6^th respondent had already filed an injunctive suit in O.S.No.1683/2019 does not come to their aid inasmuch as admittedly that is not a title suit; the case of the 6^th respondent seeking impleadment broadly falls within the parameters of the Apex Court decision in RAZIA BEGUM VS. SAHEBADI ANWAR BEGUM AND OTHERS AIR 1958 SC 886 .

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Even if a buyer pendente lite is not a proper and necessary party in terms of the decision of the Apex Court in the case of Razia Begum Case, in the sense that a declaration suit can be decided sans his presence and he would be bound thereby, still he is entitled to get himself impleaded vide AMIT KUMAR SHAW vs. FARIDA

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KHATOON, (2005) 11 SCC 403 , of course subject to

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discretion and wisdom of the court.

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Lastly, impleadment of 6^th respondent as one of the defendants to the suit in question would not cause any prejudice to the original parties thereto; the six respondent’s sale deed is dated 07.05.2013 and suit has been instituted on 26.04.2013.

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The decision relied upon by the petitioners i.e., GURMIT SINGH BHATIA vs. KIRAN KANT ROBINSON, 2019 SCC online SC 912 does not apply to the present case, its factual matrix being different; para 5 of the decision mentions the buyer pendente lite purchasing the property in gross violation of injunctive order restraining alienation and there was enormous delay in seeking impleadment, when the suit had advanced much; but, these material facts are lacking in the present petition.

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The contention of the petitioners that the very text of Sec.52 of the Transfer of Property Act interdicts transfer of property pendente lite save with the leave of the trial Court on the fact of it is very attractive; however, the interpretations placed by the Apex Court and High Courts show that several equitable factors entering such transaction need to be adverted to and that a bona fide transferee pendente lite for consideration and without notice need to be heard in the suit since he is the true stake holder on whom an adverse decree may fall down as a Democle’s sword; an argument to the contrary would

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strike at the root of reason and justice apart from violating

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the principles of natural justice.

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In the above circumstances, these writ petitions

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being devoid of merits are dismissed.

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The learned Judge of the Court below is requested to try & dispose off the suit within an outer limit of ten months, all contentions of the parties having been kept open.

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Sd/JUDGE

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Bsv

Keshavamurthy v. Smt. Nirmala

Case brief

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Keshavamurthy v. Smt. Nirmala

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