Dismissed

Sri. S. Sundaresh v. Sri M Nagaraj Reddy

Karnataka HC21 Mar 2022WP/16875/2017

Case brief

AI extract

What is this about?

This single-judge Bench dismissed a writ petition challenging a trial court order rejecting an application to implead a petitioner as a necessary defendant in a specific performance suit. Relying on Supreme Court precedents, the Court held that the plaintiff, as dominus litis, has the right to choose defendants and that the petitioner's claim did not make him necessary to avoid prejudice.

What did the court decide?

Writ petition held to be devoid of merit and dismissed.

Sri. S. Sundaresh Vs Sri M Nagaraj Reddy — Specific Performance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF MARCH, 2022

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BEFORE

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THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

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WRIT PETITION No.16875 OF 2017 (GM-CPC)

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BETWEEN:

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Sri. S. Sundaresh S/o. G. Suryanarayana Aged about 39 years, R/a. No.164/1, Ranganathaswamy Temple Street, Bangalore – 560 053.

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.. Petitioner

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(By Sri. K. Sathyish Kumar, Advocate)

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AND:

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Sri M. Nagaraj Reddy S/o. Muni Reddy Aged about 63 years R/at No.171, BTM Layout Main Road, Bangalore.

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Rep. by his GPA holderSri. C.M. Venugopal Reddy S/o. C.G.M. Reddy Aged about 65 years, R/a.1^st ‘J’ Cross, Sharada Colony, Basaveshwaranagar Bangalore – 560 079.

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W.P.No.16875/2017

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Smt. Chandramma, W/o. late G. Krishna Raju Aged about 57 years

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Sri.Venkatesh S/o. late G. Krishna Raju Aged about 57 years

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Smt. Jayalakshmi D/o. late G. Krishna Raju, Aged about 54 years

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Smt. Akhilashree D/o. late G. Krishna Raju Aged about 46 years

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Smt. Shashikala, D/o. late G. Krishna Raju, Aged about 41 years

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The Respondent No.2 to 6 are R/a.No.164/1, Ranganathaswamy Temple Street, Bangalore – 560 053.

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The Karnataka Slum Clearance Board, Rep. by its Commissioner No.55, Head Office, Resaldar Road, Seshadripuram, Bangalore – 560 020.

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.. Respondents

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(By Smt.Y.P. Vijaya Vasantha Kumari, Advocate for R-1; Sri. V. Vishwanath Setty, Advocate for R-2 to R-6)

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This Writ Petition is filed under Article 227 of the Constitution of India, praying to call for the entire records on the file of the Principal City Civil and Sessions Judge, Bangalore District, Bangalore, in O.S.No.9417/2006 by issuing a writ of certiorari by quashing the order dated 30-03-2017 passed by the learned Principal City Civil and Sessions Judge, Bangalore

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W.P.No.16875/2017

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District, Bangalore in O.S.No.9417/2006 on I.A.No.16 vide Annexure H and further be pleased to allow the application filed by the petitioner; etc.

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This Writ Petition coming on for Preliminary Hearing in ‘B’ Group, through Physical Hearing/Video Conferencing Hearing, this day, the Court made the following:

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O R D E R

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In a suit for specific performance filed by the present

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respondent No.1 as a plaintiff in O.S.No.9417/2006, on the file of the learned Principal City Civil and Sessions Judge, at Bangalore (District Bangalore), (hereinafter for brevity referred to as “the Trial Court”), the present petitioner filed I.A.No.16 under Order I, Rule 10(2) read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter for brevity referred to as “the CPC”), seeking his impleadment as defendant No.7. The said application came to be rejected by the order of the Trial Court dated 30-03-2017. Aggrieved by the same, the impleading applicant (petitioner herein) in the Trial Court has filed the present petition.

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Learned counsel for the petitioner, in his argument submitted that, the present petitioner being the legatee

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W.P.No.16875/2017 4

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under the Will executed by the alleged vendor -

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Sri G. Krishna Raju, who died on 27-02-1998, is a proper and necessary party in the suit.

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The first respondent, who is the plaintiff in the Trial Court, has filed his Statement of Objections, opposing the application, contending that a similar attempts have been made by the present petitioner in various litigations including in R.F.A.No.1327/2003 which was pending before this Court. However, his attempt in the said R.F.A.No.1327/2003 to get himself impleaded came to be rejected.

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However, learned counsel for the respondent No.1 has remained absent, as such, no argument was addressed by the learned counsel for the respondent No.1.

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Learned counsel for the respondents No.2 to 6 submitted that, he is supporting the case of the petitioner, in which connection, he has filed his ‘no objection’ memo in the Trial Court.

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W.P.No.16875/2017

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Admittedly, the alleged Agreement of Sale is between Sri. G. Krishna Raju and the plaintiff (respondent No.1 herein). The defendant No.1 is said to be the wife of late Sri. G. Krishna Raju and defendants No.2 to 5 are said to be the children of late Sri. G. Krishna Raju. The present petitioner, as an impleading applicant has only stated that, the said Sri. G. Krishna Raju, the original vendor under the Agreement for Sale, has left a Will dated 26-08-1996, bequeathing the said property in his favour. As such, as a legatee of the said Will and consequently as a probate holder, he is the proper and necessary party in the suit instituted by the first respondent herein.

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The Trial Court, observing that, since the lis is between the plaintiff and the other defendants, the plaintiff is required to establish that he is entitled for the specific performance of the contract and it is for him to prove, has rejected the application of the petitioner herein.

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Our Hon’ble Apex Court, in the case of Hari Mohan Sharma and another Vs. Charanjeet Singh Rekhi and

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W.P.No.16875/2017

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others reported in (2019) 12 Supreme Court Cases 412 , in

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a suit for specific performance, where an impleading applicant has filed his application under Order I, Rule 10(2) of the CPC, was pleased to observe that, in a suit for specific performance, it is the plaintiff, who, as dominus litis, has the freedom to choose as to who shall be the defendants in his suit. Further, taking the similar view, in other context, but in a different circumstance, the Hon’ble Apex Court in the case of Gurmit Singh Bhatia Vs. Kiran Kant Robinson and others reported in AIR 2019 Supreme Court 3577 was pleased to observe that, in a suit for specific performance of the contract, the third party or a stranger to a contract are not necessary parties and cannot be added in the suit for specific performance of the contract.

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In the instant case, admittedly, the case of the plaintiff is that, he has an Agreement for Sale with original vendor - Sri. G.Krishna Raju, who, according to the plaintiff, is succeeded by defendants 1 to 5 in the Trial Court. Thus,

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W.P.No.16875/2017 7

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the lis is between the plaintiff and the defendants 1 to 5.

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However, the Karnataka Slum Clearance Board is also arraigned as defendant No.6, in view of the alleged allotment of the property by it in favour of the original vendor. Thus, the plaintiff himself has chosen that, it shall be the existing defendants and defendants alone against whom he is intending to go against, and as a dominus litis, has chosen that, the present impleading applicant shall not be a defendant in his suit. Thus, it is for the plaintiff to decide as to against whom, he is willing to proceed in a suit

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and by non-impleading of any party, if any risks are attracted, then, the plaintiff would be exposed to those risks. That being the case, when the plaintiff, knowing fully well that the impleading applicant claims himself to be a legatee under a Will alleged to have been executed by the alleged original vendor - Sri. G. Krishna Raju, since has chosen to confine the suit only as against the present existing defendants, merely because the impleading applicant claims himself to be a legatee under the Will, that

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W.P.No.16875/2017

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does not make him to be a necessary party to be incorporated in the suit under all circumstances. There are no material to hold that any prejudice would be caused to the impleading applicant by the judgment that may be passed in the Original Suit. Thus, I do not find any reason warranting any interference under the impugned order.

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Accordingly, the writ petition stands dismissed as devoid of any merit.

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Sd/JUDGE

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BMV*

Sri. S. Sundaresh v. Sri M Nagaraj Reddy

Case brief

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Sri. S. Sundaresh v. Sri M Nagaraj Reddy

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