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2022 DIGILAW 247 (KAR)

Shivalingamma v. Manchappa M.

2022-02-21

SURAJ GOVINDARAJ

body2022
JUDGMENT 1. The petitioners are before this Court seeking for the following reliefs: i. A writ in the nature of Certiorari or any other writ, setting-aside the order on I.A. No.8 under Order 1 Rule 10(2) R/w Sec. 151 of CPC at ANNEXURE-A, dtd. 5/8/2016 in O.S. No.360/2008 on the file of the II Addl. Civil Judge and JMFC, Kanakapura. ii. Such other writ, order or directions as this Hon'ble Court deems fit under the facts and circumstances of the case in the interest of justice and equity. 2. O.S. No.360/2008 had been filed by respondent No.2 herein seeking for specific performance of an agreement of sale said to have been executed by respondent No.1 in favour of respondent No.2 on 17/6/2005. While suit was pending, the petitioners herein filed an application under Order 1 Rule 10(2) of CPC to be brought on record as additional defendants on the ground that the property, which is subject matter of agreement of sale dtd. 17/6/2005 is not an exclusive property of respondent No.1, but belongs to the petitioners and respondent No.1 it being a joint family member. The said application came to be objected to by plaintiff therein who is respondent No.2 herein. After considering the matter, the trial Court dismissed the application on the ground that there is no relief which had been claimed against the impleading applicants, the issue as regards the joint family property or otherwise is not relevant for deciding the suit for specific performance. It is aggrieved by the same, the petitioners are before this Court. 3. Sri.Sridhar.A.G, learned counsel for the petitioners would submit that under the guise of agreement of sale and the suit, the property of the petitioners would get affected inasmuch as the same is the subject matter of agreement of sale and suit for specific performance. Therefore, he submits that the petitioners ought to have been allowed to come on record and contest the suit. 4. None has appeared for the respondents. On earlier occasions also there was no representation and this Court vide order dtd. 7/2/2022 had observed that if none were to be present for the respondents, the matter would be taken up for consideration in their absence. Hence, the matter is taken up for consideration. 5. Heard Sri.Sridhar.A.G, learned counsel for the petitioners and perused documents. 6. On earlier occasions also there was no representation and this Court vide order dtd. 7/2/2022 had observed that if none were to be present for the respondents, the matter would be taken up for consideration in their absence. Hence, the matter is taken up for consideration. 5. Heard Sri.Sridhar.A.G, learned counsel for the petitioners and perused documents. 6. The suit in O.S. No.360/2008 is one for specific performance of an agreement of sale of a property in which the petitioners claim interest. The petitioners, admittedly, are not signatories to the Agreement of sale dtd. 17/6/2005 nor they have been arrayed as parties in the said suit by the plaintiffs. There is no relief which has been sought against the petitioners in the said suit. Needless to say that any decree passed in the said suit would not be binding on the petitioners herein. 7. The petitioners had voluntarily filed an application under Order 1 Rule 10(2) of CPC to be impleaded as party defendants which has been objected to by the plaintiff and as such, the said application came to be rejected. When the plaintiff is aware of the alleged rights of the petitioners in the property, subject matter of the suit, despite the said knowledge the plaintiff/respondent No.2 has opposed they being brought on record as party defendants. Thus, once the plaintiff is aware of the existence of the plaintiffs and having opposed their impleadment, the plaintiff cannot seek to enforce the decree, if any passed against the petitioners herein and the Judgement when passed would not be binding on them. 8. As observed hereinabove, no relief has been sought for against the petitioners herein nor are they signatories to the Agreement of sale which is specifically to be enforced. Hence, I am of the considered opinion that the plaintiff in the suit not wishing to prosecute the proceedings against the petitioners herein, the order passed by the trial Court is proper and correct and does not require any interference. 9. The writ petition stands dismissed.