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2013 DIGILAW 891 (KAR)

S. K. CHAND BASHA v. BHAVASARA KSHATRIYA SAMAJ

2013-08-07

B.S.PATIL

body2013
ORDER B.S. PATIL, J.-In this revision petition, petitioner is calling in question the order dated 17.04.2013 passed by the learned Judge of the Court of Small Causes, Bangalore, in S.C. No. 42/2012 thereby dismissing the I.A. filed by the revision petitioner under Order I Rule 10(2) CPC. In the application filed, Sri Chandpasha -petitioner herein contended that he was a proper and necessary party to the eviction petition filed in S.C. No. 42/2012 by the 1st respondent herein - Bhavasara Kshatriya Samaj against the 2nd respondent - Sri Gopal @ Gopala Krishna. 2. Applicant - petitioner herein denied the right, title and interest of the plaintiff over the suit property and its right to evict Sri Gopal who was the tenant under the plaintiff. It was his assertion that he was in lawful possession of the suit property. Allegations were made contending that the plaintiff was playing fraud and was misrepresenting the facts before the Court. This application was objected by the plaintiff. 3. On consideration of the materials on record, the Court below has rejected the application holding that the defendant-Gopal having filed his written statement and the matter having been remanded by the High Court directing the Small Causes Court to proceed on the merits of the matter in accordance with law, the application for impleading had been filed after the matter was posted for judgment and therefore, once the matter was posted for judgment, question of filing any impleading application would not arise. The Trial Court also found that the proposed defendant was not a necessary party to the case as he has already contested the matter on merits. The Court below has further observed that if the proposed defendant had any right over the property, he could very well agitate the same before the Competent Court of law by getting himself impleaded in the suit. The Court below has further observed that if the proposed defendant had any right over the property, he could very well agitate the same before the Competent Court of law by getting himself impleaded in the suit. It is also noticed by the Court below that though the applicant had asserted that he had become the absolute owner of the property, he had not produced any material to show that he was the purchaser of the suit property and was in occupation of the same and therefore, in the absence of such material, it could not be believed that the proposed - defendant was the owner of the suit schedule garage portion known as M/s. Bindu Auto Garage which was located in the premises bearing No. 10 (old) and New No. 37 situated at St. John's Road, Bangalore. Aggrieved by this order, the present revision petition is filed. 4. Learned counsel for the petitioner contends by referring to several documents which are now produced along with the revision petition that by virtue of a registered Sale Deed executed on 10.09.2007 by the original owner of the property one Vijayalakshmi, the applicant had become the owner of property in question. It is his contention that as the applicant had been put in possession of the property, any order to be passed in eviction proceedings instituted in the suit would adversely affect the interest of the applicant and therefore, he is a proper and necessary party to the proceeding. 5. Learned counsel appearing for the respondent strongly refutes the contentions urged by the applicant and urges that the attempt made by the applicant to come on record by filing the impleading application is nothing but abuse of the process of the Court as the present proceedings are the result of the proceedings earlier instituted in H.R.C. No. 10722/1991 against the defendant - Gopal which were ordered to be proceeded on merits by virtue of the order dated 26.09.2002 passed in HRRP. No. 306/2002 by this Court. It is his contention that even if the applicant - petitioner herein has purchased the property during the pendency of the proceedings, he cannot claim any right to come on record in this proceeding. No. 306/2002 by this Court. It is his contention that even if the applicant - petitioner herein has purchased the property during the pendency of the proceedings, he cannot claim any right to come on record in this proceeding. If the application were to be allowed, it will tantamount to permitting him to agitate his right, title and interest over the property which will be outside the scope and ambit of the proceedings for eviction instituted by the plaintiff. In support of his contention, he has placed reliance on the judgment of this Court in the case Kempahanumiah vs. M/s. Allied Motors Service Station and others, 2012 (2) AIR Kant. 810. He has also drawn the attention of the Court to the previous litigation pertaining to this property in O.S. No. 152/1980 wherein the plaintiff has sought for declaration of title and possession of Sy. No. 691 New No. 351 situated at St. John's Road, Bangalore, which was decreed on 17.03.1990. Reference is also made by him by inviting the attention of the Court to the judgment in R.F.A. No. 170/ 1990 wherein the decree passed in favour of the plaintiff - Bhavasar Kshatriya Samaj in O.S. No. 152/1980 was confirmed. Vijayalakshmi, the vendor of the present applicant is a party to the said proceeding. The sum and substance of his contention is that the vendor of the applicant - Vijayalakshmi did not have any right over the property. She had suffered a decree in the suit instituted by the present plaintiff and therefore, the present attempt made by the applicant to come on record in this proceeding is only to place hurdles in the right of the plaintiff to secure possession of the property by evicting the tenant. 6. Upon careful consideration of the entire materials on record, I find that as rightly held by the Court below for the purpose of effective adjudication and disposal of the dispute between the plaintiff and its tenant regarding ejectment/eviction of the tenant from the premises, the present applicant is neither a necessary, nor a proper party. It has to be noticed at this stage that the applicant has filed a suit in O.S. No. 25826/2013 on 03.06.2013 seeking relief of declaration and injunction in respect of very property. It has to be noticed at this stage that the applicant has filed a suit in O.S. No. 25826/2013 on 03.06.2013 seeking relief of declaration and injunction in respect of very property. The Court below has rightly observed that if the applicant had any right over the property and wants to establish the same, it was open for him to approach the proper forum for seeking such relief. Therefore, the reasons assigned by the Court below while rejecting the application are proper and unexceptional. No case is made out for interference in exercise of the revisional power of this Court with the impugned order passed. I must also mention at this stage that the present application was filed by the petitioner when the matter was posted for judgment. If at all the applicant was diligent in pursuing his remedy, he could not have waited till the matter was posted for judgment. Therefore, the intention of the petitioner is very clear that he wants to delay the proceedings by filing application in the eviction petition. Hence, for this reason also the revision petition is liable to be dismissed and therefore, the same is dismissed with costs of Rs. 3,000/- payable to the respondent.