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2015 DIGILAW 35 (KAR)

Rekha v. N. T. Ganesh

2015-01-06

B.MANOHAR

body2015
ORDER B. Manohar, J. 1. Petitioners are defendants 2 to 4 in O.S. No. 77 of 2011 on the file of the II Additional Senior Civil Judge and Judicial Magistrate First Class, Davanagere. Being aggrieved by the order dated 14-8-2013 made on I.A. No. 6 in the said suit, they have filed this writ petition. The case of the petitioners is that the 1st respondent herein filed the suit seeking for refund of a sum of Rs. 48 lakhs with future interest. In the plaint, it was contended that the 1st defendant entered into an agreement dated 4-6-2010 agreeing to sell the suit schedule property and received a sum of Rs. 48 lakhs towards part of sale consideration. Though the transaction has been completed within five months, the 1st defendant has not come forward to perform his part of obligation. In view of that, the plaintiff filed the suit for refund of sum Rs. 48 lakhs with interest. In the said suit, the petitioners, who are the wife and children of the 1st defendant have been arrayed as parties as defendants 2 to 4. The 1st defendant filed written statement to the said suit. Defendants 2 to 4 adopted the written statement filed by the 1st defendant. Thereafter, defendants 2 to 4 filed I.A. No. 6 under Order 1, Rule 10(2) of Civil Procedure Code, 1908 seeking for striking out their names as defendants 2 to 4 in the above suit. The defendants contended that defendants 2 to 4 are not proper and necessary parties for adjudication of dispute between the plaintiff and 1st defendant. They are not signatories to any of the agreement of sale and they are nothing to do with the suit filed by the plaintiff. The plaintiff filed objections to the said application contending that the defendants are residing together. The transaction took place in the house of the 1st defendant in the presence of defendants 2 to 4 and they are aware of it. Hence, they are proper and necessary parties to the suit. Therefore, sought for dismissal of the application. 2. The Trial Court after considering the matter in detail by its order impugned in this writ petition dismissed the said application holding that they are the proper and necessary parties. The specific issue has been framed with regard to misjoinder of parties. Hence, they are proper and necessary parties to the suit. Therefore, sought for dismissal of the application. 2. The Trial Court after considering the matter in detail by its order impugned in this writ petition dismissed the said application holding that they are the proper and necessary parties. The specific issue has been framed with regard to misjoinder of parties. Since the issue has been framed with regard to defendants 2 to 4, they are the necessary parties and accordingly I.A. No. 6 has been disposed of by the order impugned. Being aggrieved by the same, the present writ petition has been filed. 3. Kum. Brunda, learned Advocate appearing for the petitioners contended that the order passed by the Trial Court on I.A. No. 6 is contrary to law. The petitioners are not proper and necessary parties for adjudication of the dispute between the plaintiff and the 1st defendant. The 1st defendant is in the business of Real Estate. He entered into an agreement with the plaintiff. Pursuant to the agreement of sale, he had received some amount towards part of sale consideration. However, it is alleged that he has not executed any sale deed. The petitioners are not signatories to any of the agreement of sale. They have nothing to do with the transaction between them and the plaintiff. The plaintiff is dragging on the suit. It is nothing but harassment. The petitioners are not proper and necessary parties for adjudication of dispute between the parties. The order passed by the Trial Court is contrary to law. Learned Counsel sought for setting aside the same by allowing the writ petition. 4. On the other hand, Smt. Pavithra, learned Advocate appearing for the respondent 1 argued in support of the order passed by the Trial Court and contended that defendants 2 to 4 are necessary parties for adjudication of dispute. In their presence in the house of the 1st defendant, the agreement was entered into between the parties. Defendants 2 to 4 are the wife and children of the 1st defendant. They are aware of the said fact and also the receipt of the advance sale consideration. Further they have adopted the written statement filed by the 1st defendant. They can examine themselves and cross-examine to prove the execution of agreement of sale and the receipt of payment of Rs. 48 lakhs towards part sale consideration. They are aware of the said fact and also the receipt of the advance sale consideration. Further they have adopted the written statement filed by the 1st defendant. They can examine themselves and cross-examine to prove the execution of agreement of sale and the receipt of payment of Rs. 48 lakhs towards part sale consideration. Hence, sought for dismissal of the writ petition. 5. I have carefully considered the arguments addressed by the learned Advocate appearing for the parties, perused the order impugned and other relevant records. 6. The records clearly disclose that the plaintiff filed the suit for refund of Rs. 48 lakhs with interest as well as future interest. Defendants 2 to 4 are the wife and children of the 1st defendant. The case pleaded by the plaintiff is that in the presence of defendants 2 to 4, the agreement of sale was entered and part of sale consideration was paid. Defendants 2 to 4 are fully aware of the transaction. They are proper and necessary parties for adjudication of dispute. It is further case of the plaintiff that defendants 2 to 4 are not signatories to any of the agreement of sale or transaction between the plaintiff and the 1st defendant. The 2nd defendant is the housewife and defendants 3 and 4 are the children of the 1st defendant. They are doing their own business and have not received any amount towards part of sale consideration. They have nothing to do with the dispute between the plaintiff and the 1st defendant. The petitioners are dragging the proceedings just because of the fact that defendants 2 to 4 are wife and children of the 1st defendant. The records further clearly disclose that the 2nd defendant is the wife and defendants 3 and 4 are the children of the 1st defendant. They are not signatories to any of the transaction between the plaintiff and the 1st defendant and also with regard to receiving of part of sale consideration. They are not witnesses to any of the agreement. The wife and children of the 1st defendant have not participated in any of the transaction. It is the specific case of the plaintiff that defendants 2 to 4 are aware of the sale transaction. They are not witnesses to any of the agreement. The wife and children of the 1st defendant have not participated in any of the transaction. It is the specific case of the plaintiff that defendants 2 to 4 are aware of the sale transaction. The reason assigned by the Trial Court to reject the application filed under Order 1, Rule 10(2) of CPC is that the issue has been framed with regard to the misjoinder of parties. Hence, defendants 2 to 4 are necessary parties. A reading of Order 1, Rule 10(2) of CPC, it is made clear that only the proper and necessary parties and in whose presence, the Court can effectually and completely adjudicate the dispute and implead them as parties. In the instant case, the petitioners are the wife and children of the 1st defendant and they have nothing to do with the transaction of the plaintiff and the 1st defendant, they cannot be impleaded as parties. They are not proper and necessary parties for adjudication of the dispute between the parties. The Trial Court without considering the purport of Order 1, Rule 10(2) of CPC dismissed the application only on the ground that the issue has been framed with regard to misjoinder of parties. Hence, the order passed by the Trial Court cannot be sustained. Accordingly, I pass the following: ORDER The writ petition stands allowed. The order dated 14-8-2013 made on I.A. No. 6 in O.S. No. 77 of 2011 by the 2nd Additional Senior Civil Judge and Judicial Magistrate First Class, Davanagere is set aside. Defendants 2 to 4 are deleted from the array of parties.