Allowed

Shivalingaiah v. Smt Suvarnamma

Karnataka HC22 Nov 2022WP/20505/2021

Case brief

AI extract

What is this about?

High Court of Karnataka allowed a writ petition quashing the trial court's order permitting plaintiffs to abandon a suit for specific performance under Order XXIII Rule 1 CPC against additional defendants. The Court held that disallowing the abandonment was necessary to avoid undermining settled issues of impleadment and multiplicity of proceedings.

What did the court decide?

Writ petition allowed; impugned order quashed with liberty to file application under Order XIV Rule 5 of CPC.

Shivalingaiah Vs Smt Suvarnamma — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF NOVEMBER 2022

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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WRIT PETITION NO.20505/2021 (GM-CPC)

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BETWEEN :

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SHIVALINGAIAH S/O LATE HONNAPPA AGED ABOUT 82 YEARS,

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B. PUTTANNAIAH @ PUTTAIAH S/O LATE PATEL BETTEGOWDA AGED ABOUT 80 YEARS,

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SHANKARAIAH @ SHIVASHANKARAIAH S/O LATE HONNAPPA AGED ABOUT 72 YEARS,

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SADASHIVAIAH S/O LATE KARIYAPPA AGED ABOUT 78 YEARS,

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PARAMASHIVAIAH S/O LATE KARIYAPPA AGED ABOUT 76 YEARS,

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NAGARAJAIAH S/O LATE KARIYAPPA AGED ABOUT 66 YEARS,

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BETTAIAH S/O LATE KARIYAPPA AGED ABOUT 62 YEARS,

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SHIVAKUMAR S/O LATE KARIYAPPA AGED ABOUT 60 YEARS,

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PETITIONERS 1 TO 8 ALL ARE R/AT DODDERI VILLAGE TAVAREKERE HOBLI, BANGALORE SOUTH TALUK BANGALORE URBAN DISTRICT 562130.

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... PETITIONERS

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(BY SRI. ANANTHA NARAYANA B N, ADVOCATE)

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AND :

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SMT SUVARNAMMA D/O LATE DODDARASIMHE GOWDA AGED ABOUT 51 YEARS R/O TAVAREKERE VILLAGE TYMAGONDLU HOBLI, NELAMANGALA TALUK BANGALORE RURAL DISTRICT 562123.

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RAMAIAH S/O HANUMANTHAIAH AGED ABOUT 67 YEARS R/O HULKUNTE VILLAGE DODABELAVANGALA HOBLI, DODDABALLAPURA TLAUK BANGALORE RURAL DISTRICT 561204

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PADMANABHA S/O LATE CHIKKAVENKATAPPA AGED ABOUT 50 YEARS R/O LAKKENAHALLI VILLAGE SOLUR HOBLI, MAGADI TALUK RAMANAGARA DISTRICT 560081 REP BY SPA HOLDER B.R RANGANATHA S/O LATE A.R. RANGAPPA

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R/AT NO.4, 8TH B CROSS M.S. RAMAIHNAGAR BANGALORE 560054.

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SMT. PUTTAMMA SINCE DEAD, REP BY LRS

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4(A) SMT. C. VASANTHAMMA W/O U. NARASIMHAIHA AGED ABOUT 72 YEARS R/AT NO.102, 3^RD STAGE BASAVESHWARANAGAR BANGALORE 560079.

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4(B). SMT. C. SHANTHAMMA W/OG. NAGARAJAPPA AGED ABOUT 70 YEARS R/AT NO. 597, 12^TH CROSS 7^TH MAIN VINAYAKA LAYOUT NAGARABHAVI 2^ND STAGE BEHIND STATE BANK OF MYSORE BANGALORE 560072.

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4(C). SMT.C. SUNANDAMMA W/O M.S. MALLANNA AGED ABOUT 68 YEARS R/O K.R EXTENSION MADHUGIRI TOWN TUMKUR DISTRICT 572132.

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4(D). SMT. C. KAMALA W/O C. KRISHNAMURTHY AGED ABOUT 65 YEARS R/AT NO. 11/3 SRI MALLESHWARA KRUPA 12^TH MAIN BEHIND POLICE STATION VIJAYANAGAR BANGALORE 560040.

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4(E). SMT. M.S. MALLAMMA W/O C SHANKARANANDA D/O LATE H. CHIKKARANGAPPA AND LATE PUTTAMMA R/AT NO. 19/12-G4 RELIANCE RESIDENCY 3^RD MAIN ROAD, HOSAHALLI, VIJAYANAGAR BANGALORE 560040.

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RESPONDENTS 4 TO 8 ARE REP. BY THEIR SPA HOLDER C. KRISHNAMURTHY R/AT NO. 11/3 SRI MALLESHWARA KRUPA 12^TH MAIN, BEHIND POLICE STATION VIJAYANAGAR BANGALORE 560040.

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BASAPPA S/O LATE PUTTAREVAIAH AGED ABOUT 80 YEARS

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PUTTAREVAIAH S/O BASAPPA AGED ABOUT 47 YEARS

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7. MARI EERAIAH S/O BASAPPA AGED ABOUT 38 YEARS

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8. REVANNA S/O BASAPPA AGED ABOUT 47 YEARS

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9. MARAIAH S/O BASAPPA AGED ABOUT 47 YEARS

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REVANA SIDDAIAH S/O BASAPPA AGED ABOUT 47 YEARS,

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SHANKARALINGAIAH S/O BASAPPA AGED ABOUT 47 YEARS

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RESPONDENTS 9 TO 15 ARE R/O PICHKUNTARA PALYA SHYANUMANGALA POST BIDADI HOBLI RAMANAGARA TALUK AND DISTRICT 563109.

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S. CHANDRU S/O SHIVANNA AGED ABOUT 51 YEARS R/AT NO. 1215 BEML 3^RD STAGE RAJARAJESHWARINAGARA BANGALORE - 560098.

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... RESPONDENTS (BY SRI N.S. VIJAYANTH BABU, ADVOCATE FOR R1 TO R4; SRI. H.S. SOMNATH, ADVOCATE FOR R12; VIDE ORDER DATED 29.11.2021, NOTICE TO R5 TO R11 IS WAIVED OFF)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 22.10.2021 PASSED ON THE MEMO FILED BY THE PLAINTIFFS/ R-1 TO 8 HEREIN UNDER ORDER XXIII RULE 1(1) OF THE CODE OF CIVIL PROCEDURE IN O.S.NO.364/2014 PENDING ON THE FILE OF THE COURT OF THE ADDITIONAL CITY CIVIL JUDGE AND JMFC, MAGADI IN PERMITTING THE PLAINTIFFS TO

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ABANDON THE SUIT AS AGAINST THE DEFENDANTS 9 TO 16 AS PER ANNX-A TO THE WRIT PETITION AND CONSEQUENTLY DISMISS THE SAID MEMO FILED BY THE PLAINTIFFS/ R-1 TO 8 HEREIN.

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THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This petition is by the ninth to sixteenth defendants in O.S.No.364 of 2014 on the file of the Additional Senior Civil Judge and JMFC, Magadi [for short, 'the civil Court' ]. The petitioners have impugned the civil Court’s order dated 22.10.2021, and the civil Court by this order has allowed the first to fourth respondents - plaintiffs' Memo dated 23.01.2021. The plaintiffs' Memo, which is purportedly filed under Order XXIII Rule 1(1) of the Code of Civil Procedure, 1908 [ CPC ], reads as under:

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"The Plaintiffs most humbly submit that they intend to and hereby abandon this suit

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unconditionally and without seeking any liberty for fresh suit as against Defendants 9 to 16. The same may kindly be taken on record in the interest of justice and equity."

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The civil Court has allowed the Memo observing that the respondents - plaintiffs have filed this Memo to abandon the suit unconditionally and without any liberty to institute a fresh suit against the petitioners on the same cause of action and none of the circumstances relied upon by the petitioners for dismissal of the Memo would avail to them. The merits of the civil Court’s impugned order must necessarily be examined in the circumstances in which the petitioners are added as additional defendants.

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The respondents - plaintiffs have filed this suit in O.S.No.364 of 2014 against other respondents viz ., the original defendants asserting the execution of the sale agreement dated 20.12.2001 in their favour. The petitioners filed their application [IA.No.21] to be

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impleaded as additional defendants, and this

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application is allowed by the civil Court by its order dated 12.03.2018. The respondents - plaintiffs have called this order in question before this Court in W.P. No.12822 of 2018. This Court has disposed of this writ petition on 05.04.2018 confirming the civil Court’s order. This Court while confirming the civil Court's order has referred to the prior proceedings inter se under the provisions of the Karnataka Land Revenue Act, 1964 culminating with the disposal of the writ appeal in W.A.No.3799 of 2005.

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This Court in W.P. No.12822 of 2018 has opined that the impleadment of the petitioners would be necessary to avoid multiplicity of proceedings. This Court’s order in this petition is called in question by the respondents - plaintiffs before the Hon'ble Supreme Court in S.L.P(C) No.19294 of 2018 , and the Hon'ble Supreme Court has dismissed the Special Leave Petition

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opining that it is not inclined to interfere with this Court's order in W.P. No.12822 of 2018. After these proceedings, the respondents - plaintiffs have filed an application [ IA.No.27 ] for striking out the petitioners’ names from the array of parties in the suit. The civil Court by its order dated 27.11.2020 has rejected this application taking note of the circumstances in which the petitioners are impleaded, including the proceedings before this Court and the Hon'ble Supreme Court. It is stated that the respondents - plaintiffs have called in question the civil Court’s order dated 27.11.2020 before this Court in W.P. No.1631 of 2021 and this writ petition is pending consideration. The subject memo is filed thereafter in the month of January 2021.

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Sri Anantha Narayana B.N., the learned Counsel for the petitioners, relying upon the earlier proceedings as aforesaid including the civil Court's subsequent order dated 27.11.2020, canvasses that the

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civil Court could not have permitted the respondents - plaintiffs to abandon the suit as against the petitioners as that would tantamount to undoing a settled question inter se parties in the light of the earlier proceedings, but Sri N.S. Vijayanth Babu, the learned Counsel for the respondents – plaintiffs, submits the following in support of the civil Court's order.

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5.1 After the petitioners are permitted to come on record, the civil court has framed an additional Issue which requires the petitioners to prove that they are the absolute owners of the suit schedule property, and this would be extraneous in a suit for specific performance. The question that is decided in a suit for specific performance is about the enforceability of the contract between the contracting parties, and the expanse of the suit cannot be enlarged to convert the suit into a suit for title. He relies upon the decision of the Hon'ble

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Supreme Court in Kasturi vs. Iyyamperumal¹ , in support of this proposition.

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5.2 It is a plaintiff’s prerogative as dominus litus to abandon the suit claim against all the defendants or some of the defendants. Whenever an application is filed under Order XXIII Rule 1 of CPC with a prayer to withdraw the suit, the defendant has no right to raise any objection except to ask for payment of costs. This proposition as enunciated by the Hon'ble Supreme Court in Anil Kumar Singh vs. Vijay Pal Singh and

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others² must apply in all fours to the present case where the respondents - plaintiffs do not desire to continue the suit as against the original defendants and abandon the claim as against the petitioners who are subsequently brought on record.

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1 (2005)6 SCC 733

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2 AIR 2017 SC 5587

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In rejoinder, Sri Anantha Narayana B.N.

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submits that the civil Court has framed an Issue on whether the petitioners prove title to the subject property is no reason to hold that the expanse of the suit is enlarged to decide the question of title, and it would always be open to both the petitioners and the respondents - plaintiffs as also the other defendants to seek appropriate recasting of the said Issue.

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The question whether the petitioners would be necessary or proper parties has been not only examined by the civil Court while considering their application but also by this Court in the light of the earlier proceedings emanating under the provisions of the Karnataka Land Revenue Act,1964 and the liberty granted therein. This Court, in the circumstances of the case, must opine that it would be against all canons to decide on the merits of the respondents – plaintiffs’ Memo dated 23.01.2021 independent of the earlier

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proceedings, and the civil Court has indeed erred in so deciding on the Memo without considering these circumstances.

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Further, this Court must observe that it is salient that a suit for specific performance must essentially be decided on the enforceability of the contract inter se the contracting parties, but even those questions that would be necessary to avoid multiplicity of proceedings will have to be decided. Merely because an Issue is framed at this stage that requires the petitioners to establish their title to the subject property is no reason to opine that in a suit for specific performance the rival claims to title will have to be decided. It is still open to the parties to seek appropriate modulation of the Issue so framed and in fact Sri Anantha Narayana B.N., is categorical that such application would be filed.

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Furthermore, there cannot be any quarrel

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with the proposition that when a plaintiff proposes to withdraw the claim under Order XXIII Rule 1 CPC, the defendant cannot obstruct such withdrawal because in seeking such leave, the plaintiff does not ask for any leave to file a fresh suit. In the present case, the petitioners are permitted to participate in the proceedings upon finding that the petitioners must be impleaded to avoid multiplicity of proceedings. This is not akin to a situation where the plaintiff seeks leave to withdraw the suit without filing a fresh suit on the same subject matter and in that event, the petitioners cannot be said to have no right to oppose the abandoning of the plaint as against them.

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