Allowed

Smt Mary Jayashree v. Venkatalakshmi

Karnataka HC13 Mar 2024WP/2400/2022

Case brief

AI extract

What is this about?

Plaintiffs challenged rejection of their application to implead the purchaser of suit item No.3 as defendant No.5. The High Court set aside the order, allowed impleadment for full adjudication, but imposed costs on the plaintiffs for delay.

What did the court decide?

Impugned order dated 06.11.2021 set aside; impleadment application allowed; costs of Rs.10,000 by plaintiffs to defendants 1-4; suit to be disposed within one year.

Smt Mary Jayashree Vs Venkatalakshmi — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:10360 WP No. 2400 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ

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WRIT PETITION NO. 2400 OF 2022 (GM-CPC)

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BETWEEN:

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SMT. MARY JAYASHREE W/O LATE PATRICK @ ANTHONYSWAMY AGED ABOUT 58 YEARS,

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MS. REEBA PATRICK D/O LATE PATRICK @ ANTHONYSWAMY AGED ABOUT 30 YEARS,

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BOTH ARE R/AT NO.23, 2^ND CROSS, 515 COLONY, HAL 3^RD STAGE, NEW THIPPASANDA POST, BENGALURU-560 075.

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…PETITIONERS

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(BY SRI. RAMESHA H.E., ADVOCATE FOR

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SRI. VIJAYA SHEKARA GOWDA V., ADVOCATE)

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AND:

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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VENKATALAKSHMI W/O SRIRAMA AGED ABOUT 53 YEARS,

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SRI. SRIRAMA S/O THIMMAIAH AGED ABOUT 61 YEARS, BOTH ARE R/AT VEERANNA PALYA ARABIC COLLEGE POST, BENGALURU-560 045

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SRI. VENKATESH S/O MUNIVENKATAPPA AGED ABOUT 61 YEARS R/AT NO.76, VEERANNA PALYA, ARABIC COLLEGE POST, BENGALURU-560 045

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SRI BERNARD S/O LATE THAMMAIAH, AGED ABOUT 55 YEARS, R/AT VEERANNA PALYA ARABIC COLLEGE POST BENGALURU-560 045

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SMT. LAKSHMIDEVI W/O M. VENKATESH AGED ABOUT 54 YEARS, R/AT NO.76, VEERANNA PALYA, ARABIC COLLEGE POST, BENGALURU-560 045

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…RESPONDENTS (BY SRI. SUBRAMANI L., ADVOCATE FOR RESPONDENT NOS.1 AND 2;

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SRI. SRINATHA P., ADVOCATE FOR SRI. H.S.RAMAMURTHY, ADVOCATE FOR RESPONDENT NOS.3 AND 5;

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VIDE ORDER DATED 06.03.2024, STEPS TO BRING LRS., OF DECEASED RESPONDENT NO.4 IS DISPENSED WITH)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDERS ON IMPLEADING APPLICATION FILED UNDER ORDER 1 RULE 10(1) READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908 FILED IN O.S.NO.1877/2014 BY THE PLAINTIFFS / PETITIONERS PASSED BY THE 37^TH ADDL. CITY CIVIL AND SESSIONS JUDGE AT BENGALURU AT ANNEXURE-L OR ELSE THIS HON'BLE COURT BE PLEASED TO SET ASIDE THE IMPUGNED ORDERS DATED 06.11.2021 BY ALLOWING THE IMPLEADING APPLICATION FILED ON 27.02.2019 BY DIRECTING THE TRIAL COURT TO ORDER TO IMPLEAD THE SAID LAKSHMIDEVI AS DEFENDANT NO.5 FOR COMPLETE ADJUDICATION OF THE MATTER.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The plaintiffs in O.S. No.1877/2014 on the file of

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XXXVII Additional City Civil and Sessions Judge, Bengaluru

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3 - NC: 2024:KHC:10360 WP No. 2400 of 2022

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(henceforth referred to as 'the Trial Court') have filed this petition challenging an order dated 06.11.2021, by which

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an application filed by plaintiffs under Order I Rule 10(2) read with Section 151 of the Code of Civil Procedure, 1908 (for short, 'CPC') was rejected.

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The suit in O.S. No.1877/2014 was filed for the

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following reliefs:

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a) Declaring that the plaintiffs are the absolute owners and in possession and enjoyment of the suit schedule properties.

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a (1) To declare that, the 2^nd defendant has fabricated the Agreement of sale, dated: 05.12.1993 and alleged GPA dated: 22.01.1994 are null and void consequently be cancelled.

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a(2) To declare that, the 2^nd defendant has alleged to have executed the sale deed dated 12.08.2010, vide document No.KCH-010422/2010-11, Book No.1, stored in CD No.KCHD 42, registered in the office of the sub registrar at Kacharakanahalli, Bangalore in favour of 1^st defendant is null and Void consequently be cancelled.

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a(3) To declare that, the 3^rd defendant has fabricated the alleged General Power of Attorney dated: 06.08.1994 is null and void consequently be cancelled.

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a(4) To declare that, the 3^rd defendant has alleged to have executed the registered sale deed dated 10.12.2012, vide document No.HBB-0103164/2012-13, Book No.1, stored in CD No.HBBD94, registered in the office of the sub registrar Hebbal, Bangalore in favour of one Lakshmidevi is null and void consequently be cancelled.

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a(5) To declare that, the 1^st defendant filed in O.S. No.26751/2010, alleged to have decreed in her favour is not binding on the Plaintiffs in respect of item No.1 of the Suit Schedule Property.

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b) To restrain the defendants by issue permanent injunction from interfering with peaceful possession and enjoyment over the suit schedule properties.

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And such other reliefs as Hon'ble court may deem fit under facts and circumstances of the case."

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When the suit was listed for final arguments,

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the plaintiffs filed an application to implead the wife of

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NC: 2024:KHC:10360 WP No. 2400 of 2022

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defendant No.3 as proposed defendant No.5 on the ground that she had purchased the suit item No.3 from defendant No.3 on 10.12.2012.

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Notice of the said application was issued to the proposed defendant No.5, who did not contest the application.

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The Trial Court after considering the contentions urged, rejected the application in terms of the impugned order on the ground that the application is filed at a belated stage of the proceedings. It held that the sale in favour of the proposed defendant No.5 was on 10.12.2012, which was prior to filing of the suit and therefore, there was no sufficient ground to allow the application.

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Being aggrieved by the said order, the plaintiffs are before this Court.

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Learned counsel for the plaintiffs / petitioners submitted that the proposed defendant No.5 is the present

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NC: 2024:KHC:10360 WP No. 2400 of 2022

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owner of the suit item No.3 and therefore, it is necessary that the proposed defendant No.5 is brought on record for a full and fair adjudication of the dispute.

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Per contra, the learned counsel for the proposed defendant No.5 / respondent No.5 and respondent No.3 contends that the husband of the plaintiff No.1, namely, Mr. C. Patrick had executed a power of attorney dated 06.08.1994 in favour of defendant No.3 and the defendant No.3 had thereafter executed the sale deed in favour of the proposed defendant No.5. He contends that the application filed by the plaintiffs is an attempt to protract the proceedings that too when the suit was at the penultimate stage.

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I have considered the submissions made by the learned counsel for the plaintiffs / petitioners and the learned counsel for defendant Nos.3 and 5 / respondent Nos.3 and 5.

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A perusal of the sale deed dated 10.12.2012 executed in favour of the proposed defendant No.5 which

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is marked as Annexure ‘K’ to the writ petition discloses that the defendant No.3 is the power of attorney of Mr. C. Patrick, the husband of plaintiff No.1/petitioner No.1 herein had conveyed the property to the proposed defendant No.5 on 10.12.2012. The plaintiffs claimed that Mr. Patrick died on 12.10.1994 alleged that all the defendants inter se colluded with each other and created documents. The defendant No.3 specifically claimed in para Nos.14 and 17 of the written statement that Mr. Patrick to meet the family and legal necessities had decided to sell the property to defendant No.3 for a total sale consideration of Rs.35,000/- and had executed a power of attorney dated 06.08.1994 and based on such power of attorney, he had sold the property to the proposed defendant No.5 on 10.12.2012. The plaintiffs were therefore required to be diligent and must have filed the application at the earliest point in time to implead the proposed defendant No.5. However, the plaintiffs have waited till the fag end of the proceedings and have filed an application to implead the proposed defendant No.5. The

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affidavit accompanying the application filed by the plaintiffs to implead the proposed defendant No.5 is as bald as it could be. They have not stated as to how they came to know about the sale deed executed in favour of the proposed defendant No.5. Though the Trial Court was in a way not justified in rejecting the application, since the outcome of the suit may affect the proposed defendant, it was appropriate for the Trial Court to allow the application filed by the plaintiffs and to implead the proposed defendant No.5 for a full and fair adjudication of the dispute between the parties. This, however, cannot go without compensating the defendants for loss of time in defending the suit.

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In that view of the matter, this petition is allowed. The impugned order dated 06.11.2021 passed by the XXXVII Additional City Civil and Sessions Judge, Bengaluru, on I.A. filed by the plaintiffs in O.S. No.1877/2014 is set aside. The application filed by the plaintiffs under Order I Rule 10(2) of the Code of Civil Procedure, 1908 is allowed and the proposed defendant

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No.5 is permitted to be brought on record in the suit. This is however subject to payment of cost of Rs.10,000/(Rupees Ten Thousand only) payable by the plaintiffs to defendant Nos.1 to 4 on the next date of hearing before the Trial Court. Since this Court has noticed that the property purchased by the proposed defendant No.5 does not match the description of any of the suit properties, it is open for the defendant No.5 to take such contentions, which are permissible in law. Having regard to the fact that the suit is filed in the year 2014, the Trial Court is requested to dispose off the suit - O.S.No.1877/2014 at the earliest which shall not be later than one year from the date of framing of any fresh issues if the defendant No.5 files any written statement.

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Sd/JUDGE

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SMA

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List No.: 1 Sl No.: 39

Smt Mary Jayashree v. Venkatalakshmi

Case brief

What is this about?

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Smt Mary Jayashree v. Venkatalakshmi

Case brief

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