Rajappa Reddy and Another Vs. A. Gopal Reddy and Others - Court Judgment

Excerpt:
constitution of india - article 227 - civil procedure code, 1908 - order 1, rule 10, order 6, rule 17 - land acquisition act, 1894 - section 48 - karnataka municipal corporations act, 1976 - section 482 - bangalore development authority act, 1976 - section 73 - partition and separate possession of property - amendment of plaint sought -respondent filed suit for relief of partition and separate possession in respect of said properties - during pendency of suit, applications were filed under order 1, rule 10 of cpc to implead bbmp and bda as defendants 19 and 20 to suit - another application was filed under order 6, rule 17 of cpc for amendment of plaint by incorporating an alternative relief - alternative relief which has been granted by court is in regard to declaration to effect that reconveyance deed stated to have been executed by bda in respect of property shown under sale deeds are illegal and contrary to section 48 of act, 1894 and hence it is to be declared as null and void - all said applications were allowed €“ hence instant application issue is €“ whether discretion exercised by trial court in allowing amendment by impleading defendants could be considered as a jurisdictional error under provisions of article 227 of constitution court held - if at all the plaintiff is of the opinion that bbmp has violated mandatory provisions of the act, 1976 and rules framed, forum is elsewhere and not civil court €“so far as inclusion of purchasers is concerned, trial court has already passed order in which plaintiff had sought for an injunction against defendants 2 and 3 from continuing further construction of apartments - judge passed order keeping in mind the interest of plaintiff as well as defendants 2 and 3 and builders with whom defendants 2 and 3 have entered into a joint development agreement - trial judge has directed defendants 2 and 3 to maintain proper accounts regarding lease or sale of the building once it is constructed and they are in possession of same €“ further, if true and proper accounts are maintained by defendants 2 and 3 regarding lease or sale of the property constructed, share of plaintiff would be compensated in terms of money - in fact order passed in suit and application has not been challenged and it has virtually attained finality €“ order of trial court is dismissed - since the plaintiff is said to be a senior citizen, judge to take all steps for early disposal - in the light of the protection given to plaintiff, impleading purchasers who have invested a lot of money cannot be considered as necessary parties in terms of order 1, rule 10 of cpc - therefore, trial court has not exercised discretion vested in it judiciously while allowing applications filed under order 1, rule 10 of cpc and order 6, rule 17 of cpc - petitions allowed. para 16, 17, 18, 20 comparative citation: 2015 (6) kantlj 114, 1. heard sri yoga narasimha, learned senior counsel for petitioners and sri venkatakrishna, learned counsel for respondent 1. facts leading to the filing of these petitions are as follows: 2. respondent 1 herein, sri gopal reddy is the sole plaintiff in the original suit bearing o.s.no.5516 of 2011 pending on the file of court of xx additional city civil and sessions judge, bangalore. it is a suit filed for partition and separate possession. 3. the facts leading to filing of these petitions are as follows: sri gopal reddy has filed the suit for relief of partition and separate possession in respect of 3 items of properties as described in the schedule appended to the plaint. item no.1 is carved out of survey no.5 and item 1(b) is carved out of survey no.5/a situated in btm 1st stage, 1st phase, madivala village, bangalore which are stated to be the subject-matter of the joint development agreements executed by the defendants 2 and 3 in favour of defendants 16 to 18. item 2 is carved out of survey no.2/3 measuring 22 guntas of land situated at madiwala, 35th division, bangalore city corporation. 4. original suit came to be filed against 18 persons initially showing them as defendants 1 to 18. defendants 1 to 10 and 16 to 18 contested the said suit by filing written statement. issues are yet to be framed in the suit. 5. during the pendency of the suit, three applications were filed. application vide i.a.no.5 came to be filed under order 1, rule 10 of civil procedure code, 1908 to implead bbmp and bda as defendants 19 and 20 to the suit. another application vide i.a.no.6 came to be filed under order 6, rule 17 of cpc for amendment of the plaint by incorporating an alternative relief in the prayer column of the plaint. alternative relief which has been granted by the court is in regard to declaration to the effect that reconveyance deed stated to have been executed by bda in respect of property shown as item 1(a) and 1(b) of under the sale deeds dated 28-6-2007 are illegal and contrary to section 48 of land acquisition act, 1894 and hence it is to be declared as null and void. all these applications have been allowed by considered order. i.a.nos.5 and 7 filed under order 1, rule 10 of cpc have been considered together and common order is passed and i.a.no.6 filed under order 6, rule 17 of cpc has been considered separately. 6. what is argued by sri yoga narasimha, learned senior counsel is that inclusion of bbmp and bda as defendants 19 and 20 to the suit is not maintainable either in law or on facts, and they are not necessary parties in terms of order 1, rule 10, cpc. it is argued that even otherwise, they could not have been brought on record since no proper prior notice as contemplated under section 482 of the karnataka municipal corporations act, 1976 and section 73 of the bangalore development authority act, 1976 have been issued. it is argued that the purchasers of the flats who have been brought on record as defendants 22 to 58, are unnecessary parties, in the sense that their interest has already been safeguarded by the trial court while disposing of i.as. at an early point of time. 7. it is further averred that the application under order 6, rule 17 of cpc could not have been allowed since the very relief claimed cannot be granted by the civil court as it is out of the purview of section 9 of cpc. it is further averred that when the plaintiff has relied on the benefit derived from defendants 2 and 3, stating that reconveyance so made would enure to his benefit also such relief is inconsistent with the contents of the plaint. 8. mr. venkatakrishna l.s., learned counsel for the plaintiff has vehemently argued that two items of properties as mentioned as 1(a) and 1(b) of the schedule to the plaint were the subject-matter of acquisition by the bda and they were ultimately denotified and under the guise of denotification, they were reconveyed to defendants 2 and 3, and this is contrary to the provisions of section 48 of the land acquisition act. it is further argued that such a procedure could not have been adopted by a statutory authority like bda in order to get over the rigor of section 48, l.a. act. he has argued that the reconveyance made by bda clandestinely in favour of defendants 2 and 3 came to the knowledge of the plaintiff only after he got information through rti proceedings. it is argued that though bda, at the time of reconveying the two items of lands, had imposed a condition to use those properties only for residential purpose, the bruhat bengaluru mahanagara palike ( ˜bbmp', for short) has granted plan to put up a multi-storeyed residential complex in utter violation of the building by-laws and rules framed under the municipal corporations act. in this regard, it is contended that bda and bbmp are necessary parties. 9. it is further argued that several flats have been put up in items 1(a) and 1(b) by the developers who have entered into agreements with defendants 2 and 3 and therefore the purchasers are necessary parties and in their absence, there cannot be any effective decree. 10. mr. venkatakrishna has vehemently argued that the relief sought for is in the nature of alternative relief and it is based on the very reconveyance deeds executed by bda and the permission granted by bbmp to put up construction, which is contrary to the rules applicable to statutory bodies like bda. hence it is argued that the relief granted by the trial court is consistent with the pleadings and therefore, the trial court has rightly granted the relief of amending the prayer. 11. it is further argued that bda and bbmp have not challenged the order impleading them and hence the defendants cannot question impleading of the above said authorities, and therefore the discretion exercised by the trial court in terms of order 1, rule 10 of cpc cannot be questioned. it is further argued that the purchasers are necessary parties or, at the best, proper parties to throw light about the consideration paid by them to defendants 2 and 3 and about other connected issues. hence, it is argued that the discretion exercised by the trial court in allowing the amendment by impleading them cannot be considered as a jurisdictional error under the provisions of article 227 of the constitution of india. 12. normally the supervisory jurisdiction under article 227 of the constitution of india will not be exercised when the trial court has exercised the jurisdiction vested in it, judiciously. but we have to see whether the trial court is justified in its exercising discretion in terms of the established procedures relating to the consideration of interlocutory applications under order 6, rule 17 of cpc and under order 1, rule 10 of cpc in the background of the pleadings of the parties. 13. the plaintiff wants the relied of partition and separate possession of 1/3rd share on the ground that the alleged reconveyance deeds made by bda in favour of defendants 2 and 3 would enure to his benefit also. in short, he contends that the said conveyance could not have been made, more particularly when it is contrary to section 48 of the land acquisition act. these assertions are apparently inconsistent and it amounts to blowing hot and cold in the same breath. in this view of the matter, the trial court could not have allowed such an application. 14. what is argued by the learned counsel, mr. venkatakrishna is that the plaintiff is bringing to the notice of this constitutional court about the violation of mandatory provisions of section 48. if really the plaintiff is aggrieved by such alleged violation, the forum is elsewhere and the scope of the suit cannot be extended by including the prayer sought for under order 6, rule 17 of cpc such denotification under section 48 of l.a. act cannot be questioned in a civil suit and the same will be impliedly barred. 15. insofar as the application under order 1, rule 10 of cpc to implead the two statutory authorities is concerned, it is true that they have not questioned the discretion exercised. the discretion under order 1 must be exercised only when the court comes to the conclusion that they are necessary parties for effective determination of the matter in dispute. as already stated, the plaintiff cannot blow hot and cold together to seek 1/3rd share in the properties recoveyed to him and at another breath, attack the alleged reconveyance. if the bbmp has committed an error in granting plan, violating the conditions imposed by bda, again the forum is elsewhere. the civil court can consider violation of conditions only when it affects free passage of air and light and such other matters related to easement. therefore, the remedy lies elsewhere. section 321 of karnataka municipal corporations act provides a specific remedy to the plaintiff to question such decision. 16. if at all the plaintiff is of the opinion that the bbmp has violated the mandatory provisions of the municipal corporations act and the rules framed and by-laws, the forum is elsewhere and not the civil court. insofar as inclusion of the purchasers is concerned, the trial court has already passed a detailed order on i.a.no.3 on 13-1-2012 in o.s.no.5516 of 2011 in which the plaintiff had sought for an injunction against defendants 2 and 3 from continuing further construction of the apartments. the learned judge has passed a detailed order keeping in mind the interest of the plaintiff as well as defendants 2 and 3 and the builders with whom defendants 2 and 3 have entered into a joint development agreement. 17. the learned judge has directed defendants 2 and 3 to maintain proper accounts regarding the lease or sale of the building once it is constructed and they are in possession of the same. it is further held that if true and proper accounts are maintained by defendants 2 and 3 regarding the lease or sale of the property constructed, the share of the plaintiff would be compensated in terms of money. in fact the order dated 13-1-2012 passed in o.s.no.5516 of 2011 on i.a.no.3 has not been challenged and it has virtually attained finality. 18. in the light of the protection given to the plaintiff by the same court on 13-1-2012, impleading the purchasers who have invested a lot of money cannot be considered as necessary parties in terms of order 1, rule 10 of cpc. if they are allowed to come on record and participate in the long drawn proceedings, it would amount to prejudicing their interest. therefore, the trial court has not exercised the discretion vested in it judiciously while allowing the applications filed under order 1, rule 10 of cpc and order 6, rule 17 of cpc. 19. therefore the supervisory power vested under article 227 of the constitution of india will have to be exercised so set right the anology less the scope of the suit would get unnecessary any enlarged under the garb of alternative relief ?. according the petitions are to be allowed and the i.as. filed in the trial court will have to be dismissed. 20. in the result, the following order is passed: order all the petitions are allowed. and consequently i.a.nos.5 to 7 the trial court stand dismissed. since the plaintiff is said to be a senior citizen aged about 80 years, the learned judge to take all steps for early disposal, and in this regard, parties and their learned counsel to co-operate with the court.