Writ Petition No. 15384 of 2020 · The High Court
Case Details
- 1 - NC: 2025:KHC:11800 WP No. 15384 of 2020 C/W WP No. 15383 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 15384 OF 2020 (GM-CPC) WRIT PETITION NO. 15383 OF 2020 (GM-CPC) C/W IN WP No. 15384/2020 BETWEEN: 1. SMT MARY THARA W/O A.JAYAPRAKASH AGED ABOUT 54 YEARS, R/A No. 33, 4TH BLOCK, (D AND F BLOCK) ANGLO - INDIAN QUARTERS, AUSTIN TOWN, BANGALORE - 560 047. Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA 2. SMT. SHEELA SHAMALA KUMARI W/O LATE A.R.SEBASTIAN AGED ABOUT 64 YEARS 3. RHENIUS VIJAY S/O LATE A.R.SEBASTIAN AGED ABOUT 44 YEARS 4. RICKSON VASANTH SEBASTIAN S/O LATE A.R.SEBASTIAN AGED ABOUT 40 YEARS 5. ROHINI VANDHANA FABIOLA SEBASTIAN D/O LATE. A.R.SEBASTIAN AGED ABOUT 37 YEARS, - 2 - NC: 2025:KHC:11800 WP No. 15384 of 2020 C/W WP No. 15383 of 2020 RESPONDENT NOS. 2 TO 5 ARE RESIDING AT NO.33, 4TH BLOCK (D AND F BLOCK) ANGLO INDIAN QUARTERS, AUSTIN TOWN, BANGALORE - 560 047. (BY SRI. RAM MOHAN A., ADVOCATE) AND: …PETITIONERS 1. THE COMMISSIONER BRUHAT BANGALORE MAHANAGAR PALIKE, N.R. CIRCLE, BANGALORE - 560 002. 2. ASSISTANT REVENUE OFFICER BRUHAT BANGALORE MAHANAGAR PALIKE, M.G. ROAD, MAYO HALL, BANGALORE - 560 001.
Legal Reasoning
3. SMT. MARY MARTHA D/O LATE ANTHONY W/O LATE COLLIN WILLIAM AGED ABOUT 64 YEARS R/A NO.12, AUSTIN TOWN ANGLO INDIAN COLONY BANGALORE - 560 047. 4. SMT. MARY NIRMALA PETER D/O LATE ANTHONY W/O LATE E.J.PETER AGED ABOUT 61 YEARS, R/AT NO.41, AUSTIN TOWN, 4TH BLOCK ANGLO INDIAN QUARTERS, BANGALORE - 560 047. 5. SMT. MARY FLORA D/O LATE ANTHONY W/O LATE SAGAYANATHAN AGED ABOUT 59 YEARS R/A NO.25, CHANDRAPPA GARDEN, - 3 - NC: 2025:KHC:11800 WP No. 15384 of 2020 C/W WP No. 15383 of 2020 R.A. ROAD, EJIPURA VIVEKNAGAR POST, BANGALORE - 560 047. 6. SMT. MARY MOHANA D/O LATE ANTHONY W/O SURESH KUMAR AGED ABOUT 47 YEARS R/A NO.906/B, 15TH CROSS, RAJARAJESHWARI NAGAR, BANGALORE - 560 098. 7. SRI. NAVEEN SEBASTIAN S/O LATE PREMA GRANDSON OF LATE ANTHONY AGED ABOUT 37 YEARS R/A EWS, QUARTER ULSOOR, BANGALORE - 560 008. …RESPONDENTS (BY SRI. K.N. PUTTEGOWDA, ADVOCATE FOR R1 AND R2 R3, R5, R6, R7 SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 05.03.2020 PASSED BY XXVII ADDITIONAL CITY CIVIL COURT JUDGE CCH-9 BANGALORE AS ANNEXURE-A IN O.S.NO.7349/2014 DISMISSING THE IA UNDER SECTION 151 OF CPC FOR REJOINDER AND ALLOW THE SAID APPLICATION. IN WP NO. 15383/2020 BETWEEN: 1. SMT MARY THARA W/O A.JAYAPRAKASH AGED ABOUT 54 YEARS, R/A No.33, 4TH BLOCK, (D AND F BLOCK) ANGLO - INDIAN QUARTERS, AUSTIN TOWN, BANGALORE - 560 047. - 4 - NC: 2025:KHC:11800 WP No. 15384 of 2020 C/W WP No. 15383 of 2020 2. SMT. SHEELA SHAMALA KUMARI W/O LATE A.R.SEBASTIAN, AGED ABOUT 64 YEARS, 3. RHENIUS VIJAY S/O LATE A.R.SEBASTIAN AGED ABOUT 44 YEARS 4. RICKSON VASANTH SEBASTIAN S/O LATE A.R.SEBASTIAN AGED ABOUT 40 YEARS 5. ROHINI VANDHANA FABIOLA SEBASTIAN D/O LATE A.R. SEBASTIAN, AGED ABOUT 37 YEARS RESPONDENT NOS 2 TO 5 ARE RESIDING AT NO.33 4TH BLOCK (D AND F BLOCK) ANGLO INDIAN QUARTERS, AUSTIN TOWN, BANGALORE - 560 047 (BY SRI. RAM MOHAN A., ADVOCATE) ...PETITIONERS AND: 1. THE COMMISSIONER BRUHAT BANGALORE MAHANAGAR PALIKE, N.R. CIRCLE, BANGALORE - 560 002. 2. ASSISTANT REVENUE OFFICER BRUHAT BANGALORE MAHANAGAR PALIKE, M.G.ROAD, MAYO HALL, BANGALORE - 560 001. 3. SMT. MARY MARTHA D/O LATE ANTHONY W/O LATE COLLIN WILLIAM AGED ABOUT 64 YEARS - 5 - NC: 2025:KHC:11800 WP No. 15384 of 2020 C/W WP No. 15383 of 2020 R/AT NO.12 AUSTIN TOWN ANGLO INDIAN COLONY BANGALORE - 560 047. 4. SMT. MARY NIRMALA PETER D/O LATE ANTHON W/O LATE E.J.PETER, AGED ABOUT 61 YEARS, R/A NO.41, AUSTIN TOWN 4TH BLOCK ANGLO INDIAN QUARTERS BANGALORE - 560 047. 5. SMT.MARY FLORA D/O LATE ANTHONY W/O LATE SAGAYANATHAN AGED ABOUT 59 YEARS R/A NO.25, CHANDRAPPA GARDEN R.A.ROAD, EJIPURA VIVEKANAGAR POST, BANGALORE - 560 047. 6. SMT. MARY MOHANA D/O LATE ANTHONY W/O SURESH KUMAR AGED ABOUT 47 YEARS R/A NO.906/B, 15TH CROSS, RAJARAJESHWARI NAGAR, BANGALORE - 560 098. 7. SRI. NAVEEN SEBASTIAN S/O LATE PREMA GRANDSON OF LATE ANTHONY AGED ABOUT 37 YEARS R/A EWS, QUARTERS, ULSOOR BANGALORE - 560 008. ...RESPONDENTS (BY SRI. K.N. PUTTEGOWDA, ADVOCATE FOR R1 AND R2 SRI. SHUJATH AHMED, ADVOCATE FOR R3, R5, TO R7 SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 - 6 - NC: 2025:KHC:11800 WP No. 15384 of 2020 C/W WP No. 15383 of 2020 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 22.08.2019 PASSED BY XXVII ADDL. CITY CIVIL COURT JUDGE (CCH-9) BANGALORE IN OS NO.7349/2014 ALLOWING THE IA UNDER SECTION 151 OF CPC FOR RE-TRANSPOSING VIDE ANNEXURE-A AND DISMISS THE SAID APPLICATION. THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL ORAL ORDER Writ petition No.15383/2020 is filed by the petitioners who are the original plaintiff No.1 and legal representatives of original plaintiff No.2 in O.S.No.7349/2014 pending consideration on the file of XXVII Additional City Civil Court (CCH-9), Bengaluru, (trial Court) are before this Court being aggrieved by order dated 22.08.2019 passed by the trial Court allowing application filed by respondents 3 to 7 herein under Section 151 CPC permitting them to transpose themselves as plaintiffs 6 to 10 in the said suit. W.P.No.15384/2020 is also by the petitioners who are the original plaintiff No.1 and legal representatives of original plaintiff No.2 in O.S.No.7349/2014 pending consideration on the file of XXVII Additional City Civil Court (CCH-9), Bengaluru, (trial Court) are before this Court being aggrieved by order - 7 - NC: 2025:KHC:11800 WP No. 15384 of 2020 C/W WP No. 15383 of 2020 dated 05.03.2020 passed by the trial Court dismissing their application filed under Section 151 of CPC seeking permission to file rejoinder. 2. Facts in brief: The above suit was filed by original plaintiffs against respondent Nos.1 and 2 herein for the relief of specific performance directing them to execute a deed of sale in respect of suit schedule property. The case of the petitioners is that they are living in suit schedule property which belongs to Bruhat Bengaluru Mahanagara Palike (BBMP) for a long time. That the original allottee of the suit property was one late Mrs.Rachel Webbs who was an Anglo Indian. Petitioners were residing in the suit property along with said Mrs.Rachel Webbs and taking care of her. On the demise of said Mrs.Rachel Webbs petitioners continued to reside in the suit property. They have been paying the rents in the respect of the schedule property. That BBMP by a resolution of the year 1976 had resolved to sell the schedule property to the respective legal occupants. In furtherance thereof enquiry was conducted and it was found that the petitioners herein were residing in the suit - 8 - NC: 2025:KHC:11800 WP No. 15384 of 2020 C/W WP No. 15383 of 2020 schedule property. Petitioners were asked to pay sale consideration of Rs.17,595/- which was duly paid by petitioner No.1 as evidenced by a receipt dated 16.11.2002. 3. Earlier a suit in O.S.No.5853/2006 had been filed by respondent Nos.3 to 7 herein who are the sisters of petitioner No.1 for partition and separate possession. In the said suit the respondents 3 to 7 herein had contended that the suit property originally owned and possessed by Mrs.R.Webbs who was the grand mother of the plaintiffs 1 to 8 and defendants 1 and 2 therein. That the said Mrs.R.Webbs passed away on 06.06.1971 leaving behind Mr.T.A.Anthony Rajan, father of plaintiffs 1 to 4 and defendants 1 and 2 therein to succeed to her estate including the suit schedule property. That the plaintiffs and defendants 1 and 2 have inherited the said property being the children of Mr.T.A.Anthony Rajan. 4. In the said suit original plaintiff No.1 in the present suit who was defendant No.1 in the said suit had contended that said Mrs.R.Webbs was the original allottee and she had no relatives. Defendant No.1 in the said suit (plaintiff No.1 in the present suit) and her parents were permitted by said - 9 - NC: 2025:KHC:11800 WP No. 15384 of 2020 C/W WP No. 15383 of 2020 Mrs.R.Webbs to stay in the schedule property. That the plaintiffs in the said suit had no right in the suit property. The said suit was dismissed by Judgment and decree dated 05.10.2013 as the same was premature. Thereafter petitioner No.1 has filed the present suit for the relief of specific performance as noted above against the respondents 1 and 2. 5. Respondents 3 to 7 herein had filed an application seeking to implead them in the aforesaid suit which was dismissed by trial Court by order dated 23.01.2016 as against which the respondents 3 to 7 had filed a writ petition in W.P.No.10264/2016. This Court by order dated 19.07.2018 allowed the said application permitting the respondents 3 to 7 herein to come on record as additional plaintiffs 6 to 10. Accordingly respondents 3 to 7 herein were impleaded as additional plaintiffs. 6. Things stood thus, respondents 3 to 7 filed one more application before the trial Court under Order I Rule 10 read with Section 151 CPC seeking to transpose themselves as defendants 3 to 7. The said application came to be allowed by order dated 16.12.2019. Thereafter again respondents 3 to 7 - 10 - NC: 2025:KHC:11800 WP No. 15384 of 2020 C/W WP No. 15383 of 2020 herein filed yet another application under Section 151 seeking to once again transpose themselves as plaintiffs 6 to 10. It is this application which came to be allowed by the trial Court giving raise to present petition. 7. Learned counsel for petitioners taking this Court through the records submits that there is an inter se dispute between the original plaintiffs and respondents 3 to 7 with regard to the claim of their share in respect of suit property. He submits that on an earlier occasion the respondents 3 to 7 herein had filed O.S.No.5853/2006 against the original plaintiffs in the present suit which suit came to be dismissed on the ground of the same being premature and that unless and until a conveyance regarding suit property was obtained, the parties could not claim their share therein. He further submits in the said suit, the original plaintiffs had specifically taken a stand that they were claiming the property independently and not through or under their father. As such respondents 3 to 7 did not have any right, title and interest in the suit property and original plaintiffs alone were entitled to seek conveyance of the suit property in their name. He submits when there is a inter se dispute between the parties though initially - 11 - NC: 2025:KHC:11800 WP No. 15384 of 2020 C/W WP No. 15383 of 2020 respondents 3 to 7 herein were impleaded as plaintiffs they having chosen to be transposed themselves as defendants, they could not have been allowed to re-transpose themselves as plaintiffs again by the impugned order. He submits such an order would lead to anomalous situation. In that without determination of rights of the parties viz-a-viz the respondent- BBMP at the first instance there cannot be any further adjudication of the rights between the same plaintiffs in the very same suit as there is no provision provided under the law. Hence, he submits the trial Court without taking into consideration this aspect of the matter has erred in allowing the application giving raise to present writ petition, which needs to be allowed. 8. Per contra, learned counsel for respondents 3 to 7 submits that when this Court initially permitted respondents 3 to 7 to come on record as additional plaintiffs and the said order having attained finality, no prejudice would be caused to the petitioners by the impugned order. He submits in any case transposition of respondents 3 to 7 as defendants was a mistake which was sought to be rectified by filing subsequent - 12 - NC: 2025:KHC:11800 WP No. 15384 of 2020 C/W WP No. 15383 of 2020 application which is now allowed by the impugned order. Hence, seeks for dismissal of the petition. 9. Heard and perused the records. 10. There is no dispute of the fact that original plaintiffs namely the petitioners herein have filed the suit claiming right exclusively in themselves and have denied the rights of respondents 3 to 7 in the suit schedule property. This denial is made even in the earlier suit in O.S.No.5853/2006 wherein the original plaintiffs have contended that except them no one else have any right, title and interest in the suit schedule property. As such the conveyance being sought by the original plaintiffs is only in their favour on their own rights from the respondent authorities. Clearly the cause of action for the suit filed by the original plaintiffs against respondents 1 and 2 is based on their claim of exclusive right to seek conveyance, on their own right from the original owner of the property while the right being claimed by the respondents 3 to 7 is as they being children of one Mr.Anthony Rajan. 11. Cause of action for the relief being claimed by respondents 3 to 7 is therefore distinct and different. - 13 - NC: 2025:KHC:11800 WP No. 15384 of 2020 C/W WP No. 15383 of 2020 Appropriate to refer to Order II Rule 3 CPC which reads as under: 3. Joinder of causes of action— (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit. (2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit. 12. Also relevant to note Rule 6 of Order II CPC providing for separate trial which reads as under: Power of Court to separate trials— Where it appears to the Court that the joinder of causes of action in one suit may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trials or make such other order as may be expedient in the interests of justice. 13. Facts narrated above would categorically indicate that in the earlier suit in O.S.No.5853/2006 respondents 3 to 7 had claimed share, right, title and interest in the suit schedule property claiming to have inherited the same through their father Mr.T.A.Anthony Rajan. Petitioners herein apart from denying the said claim of respondents 3 to 7, have set up a separate and distinct case in the present suit in - 14 - NC: 2025:KHC:11800 WP No. 15384 of 2020 C/W WP No. 15383 of 2020 O.S.No.7349/2014 in themselves of they having their independent right. Thus, the cause of action are distinct and different. 14. The respondents 3 to 7 herein who were initially impleaded as plaintiffs got themselves transposed as defendants, apparently realizing the conflicting interest and their inter se disputes, again by the impugned order they have been transposed as plaintiffs. Since original plaintiffs and respondents 3 to 7 are having different causes of action cannot be joined as common plaintiffs, as joinder of such causes of action may embarrass or delay the trial or may otherwise cause inconvenience. The trial Court in the impugned order has not adverted to this aspect of the matter. The trial Court has only accepted the submission made by the respondents 3 to 7 that there was a mistake and said mistake could be rectified by allowing the application. Hence the following: - 15 - NC: 2025:KHC:11800 WP No. 15384 of 2020 C/W WP No. 15383 of 2020
Decision
ORDER Writ petition in W.P.No.15383/2020 is allowed. Order dated 22.08.2019 at Annexure-A is set aside. Application filed under Section 151 of CPC is rejected. At this juncture learned counsel for respondents 3 to 7 submit that they would continue as defendants in the said suit and they be permitted to file their counter claim in the said suit. Submission taken on record. Respondents 3 to 7 are at liberty to file their counter claim and seek such remedy as may be available under law. In view of the order passed in this matter, learned counsel for the parties submit that W.P.No.15384/2020 does not survive for consideration. Accordingly, same is dismissed as having become infructuous. Sd/- (M.G.S. KAMAL) JUDGE SBN List No.: 2 Sl No.: 3