Allowed

Mr. Eliyas Jerome Pais, v. Mrs. Archana

Karnataka HC24 Oct 2024WP/15988/2024

Case brief

AI extract

What is this about?

Plaintiff in a specific performance suit challenged rejection of his application to implead persons claiming through defendants under a later registered release deed. The High Court held they were proper and necessary parties for an effective decree, set aside the trial court order, allowed impleadment, and directed speedy disposal.

What did the court decide?

Impugned order set aside; plaintiff's application to implead proposed defendants 3 to 6 allowed; trial court requested to expedite suit disposal.

Mr. Eliyas Jerome Pais, Vs Mrs. Archana — Specific Performance | Karnataka HC (2024)

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1 - NC: 2024:KHC:42988 WP No. 15988 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 15988 OF 2024 (GM-CPC)

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BETWEEN:

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MR. ELIYAS JEROME PAIS, S/O. LATE DENIS PAIS AGED ABOUT 77 YEARS, R/AT BAREBAIL, BEJAI POST, MANGALURU TALUK - 575 004.

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…PETITIONER

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(BY SRI. PRASANNA V R.,ADVOCATE)

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AND:

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MRS. ARCHANA D/O. LATE JAYALAXMI AND RAGHUPATHI BHAT AGED ABOUT 43 YEARS, R/AT D.NO.3-103, BADANIDIYUR, UDUPI 576 115.

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Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA

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MRS.ASHWINI, D/O. LATE JAYALAXMI AND RAGHUPATHI BHAT

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W/O. MR.SATHYANARAYANA NIDVANNAYA, AGED ABOUT 41 YEARS, R/AT NO.1-57, SRI VARANYAM HOUSE, BAMBILA, PALTHADI VILLAGE AND POST, PUTTUR TALUK, D.K.DISTRICT-574 210.

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SRI.SHANTHARAMA SARALAYA, S/O. LATE VASUDEVA SARALAYA, AGED ABOUT 81 YEARS, R/AT SARALAYA COLONY, KUMPALA POST, KOTEKAR VILLAGE, SOMESHWARA,

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NC: 2024:KHC:42988 WP No. 15988 of 2024

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MANGALORE TALUK, D.K.DISTRICT-575 022.

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SRI. PURUSHOTHAMA SARALAYA, S/O. LATE VASUDEVA SARALAYA, AGED ABOUT 77 YEARS, R/AT SARALAYA COLONY, KUMPALA POST, KOTEKAR VILLAGE, SOMESHWARA, MANGALORE TALUK, D.K.DISTRICT-575 022.

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SRI. SRINIVASA SARALAYA S/O. LATE VASUDEVA SARALAYA, AGED ABOUT 69 YEARS, R/AT SARALAYA COLONY, KUMPALA POST, KOTEKAR VILLAGE, SOMESHWARA, MANGALORE TALUK, D.K.DISTRICT-575 022.

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SRI. DEVESHA SARALAYA, S/O. LATE VASUDEVA SARALAYA, AGED ABOUT 66 YEARS, R/AT SRI PADMA NILAYAM HOUSE, MANALIL, ANJANOOR, KASARAGOD, KERALA 671 121.

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…RESPONDENTS

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(BY SRI. RAVISHANKAR., ADVOCATE FOR C/R1 & R2: R3, R4 R5 & R6 ARE SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 06/04/2024 ON IA NO. 6 IN OS NO. 101/2021 ON THE FILE OF THE LEARNED I ADDL. SENIOR CIVIL JUDGE AND CJM, MANGALORE,VIDE ANNEXURE-A AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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3 - NC: 2024:KHC:42988 WP No. 15988 of 2024

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The plaintiff in OS No.101/2024 on the file of learned I Addl. Senior Civil Judge and CJM, Mangalore has filed this writ petition challenging an order dated 06.04.2024 by which an application under Order I Rule 10(2) of Code of Civil Procedure was rejected.

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The suit in OS No.101/2024 was filed for specific performance of an agreement of sale dated 24.07.2007. The suit was contested by defendants No.1 and 2. After issues were framed in the suit, the plaintiff filed an application under Order I Rule 10(2) of Code of Civil Procdure to implead the proposed defendants No.3 to 6 on the ground that defendants No.1 and 2 had executed a release deed on 10.03.2020, which was duly registered before the Office of the Sub-Registrar, Mangaluru Taluk. The said application was rejected in terms of the impugned order on the ground that the defendants No.1 and 2 had alleged several infirmities in the agreement of sale propounded by the plaintiff and that the onus of purging the infirmities lay upon the plaintiff and therefore, it held that unless the said burden was discharged, the Court cannot arrive

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NC: 2024:KHC:42988 WP No. 15988 of 2024

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at any judgment or conclusion. It also held that there were several grey areas in the case, which could be decided only after a full-fledged trial and that it was too premature to implead the proposed defendant Nos.3 to 6 in the suit. Being aggrieved by the said order, the plaintiff is before this Court.

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Learned counsel for the plaintiff contended that, the release deed dated 10.03.2020 was executed after the sale agreement dated 24.07.2007 executed in favour of the plaintiff. He therefore contends that, the proposed defendants/respondents are claiming through the defendant Nos.1 and 2 and hence, they also have to be reined in for an effective decree of specific performance to be passed. He contends that, if the proposed defendants are left out, there is every likelihood of they bringing in unconscionable documents resulting in multiplicity of proceedings. Besides that, he contends that the proposed defendants are claiming through defendants No.1 and 2 and therefore, they are proper and necessary parties for the adjudication of the suit. In support of his contention, he relied upon the judgment of the Apex Court

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in the case of Kasturi Vs. Iyyamperumal and others [(2005) 6 SCC 733] .

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NC: 2024:KHC:42988 WP No. 15988 of 2024

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Learned counsel for defendants No.1 and 2 submitted that, the agreement set up by the plaintiff itself is in dispute and therefore unless the plaintiff establishes the said fact, he cannot proceed against the proposed defendants. He contends that the proposed defendants are not proper and necessary parties for the adjudication of the suit. Besides that, he contends that the defendants No.1 and 2 have denied the execution of the release deed itself and therefore, the question of impleading the proposed defendants does not arise. In support of his contention, he relied upon the judgment in the case of Gurmit Singh Bhatia Vs. Kiran Kant Robinson and Others.

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I have considered the submissions of learned counsel for the plaintiff as well as the learned counsel for the defendants No.1 and 2.

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The plaintiffs claim that after the agreement was executed in his favour on 24.07.2007, the defendants have executed a release deed in favour of the proposed defendants. The defendants No.1 and 2, have specifically not denied the execution and registration of the release deed in favour of the

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6 - NC: 2024:KHC:42988 WP No. 15988 of 2024

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proposed defendants. Therefore, the defendants No.1 and 2, according to the plaintiff, have lost title to the property. Consequently, for an effective decree for specific performance, the proposed defendants are proper and necessary parties, as without them, there cannot be any effective conveyance of suit property to the plaintiff. Not doing so may result in multiplicity of proceedings and avoidable expense of judicial time. In that view of the matter, the fact situation in the case of Kasturi (supra) obtains in the present case and therefore, the proposed defendants have to be reined in, so that an effective decree of specific performance could be passed.

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In that view of the matter, the impugned order passed by the Trial Court warrants interference. Hence, the writ petition is allowed and the impugned order passed by the Trial Court is set aside. The application filed by the plaintiff to implead the proposed defendants is allowed.

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Since the agreement is executed in the year 2007, it is appropriate to request the Trial Court to dispose off the suit at the earliest at any date within a period six months from the date of the proposed defendants filing their written

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NC: 2024:KHC:42988 WP No. 15988 of 2024

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statement and after the Trial Court frames any additional issues

in the suit.

Sd/-

(R. NATARAJ)

JUDGE

THM List No.: 1 Sl No.: 23

Mr. Eliyas Jerome Pais, v. Mrs. Archana

Case brief

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Mr. Eliyas Jerome Pais, v. Mrs. Archana

Case brief

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