BYRAMMA NAGARAJAPPA Vs. MALAKONDAIAH K.LAKSHMAIAH

JUDGEMENT

(1.) The plaintiffs/petitioners filed the present writ petition against the order dated 29.09.2016 on I. A. No. X under Order I, Rule 10 of Code of Civil Procedure ('CPC', for short) in O.S. No. 11/2013 on the file of I Addl. Senior Civil Judge, Kolar allowing the application for imp leading the applicant as defendant No. 4.

(2.) The present plaintiffs filed a suit in O.S. No. 11/2013 for partition and separate possession against the defendants in respect of suit schedule properties. The defendant Nos. 2 and 3 have filed written statement contending that Item No. 5 of the suit schedule property is self acquired property of them. Hence, sought to dismissal of the suit which is pending for consideration.

(3.) It is contended that the applicant has entered into a sale agreement with defendant Nos. 2 and 3 dated 22.08.20l2 for sale consideration of Rs. 31,50,000/-. After executing sale agreement, defendant Nos. 2 and 3 did not execute the registered sale deed in favour of applicant. Hence, he filed a suit in O.S. No. 108/2014 for specific performance against the defendants which came to be decreed. In the meantime, the proposed applicant has filed an application under Order I, Rule 10(2) read with section 151, CPC to implead him as defendant No. 4 as he being a necessary and proper party to the suit proceedings. Said application was dismissed on 27.01.2015 on the ground that "the applicant having filed suit for specific performance of the contract in O.S. 108/2014, he can work out his remedy against defendant Nos. 2 and 3 in case he is able to succeed in the said suit after disposal of the said suit. To decide the rights of the parties to the present suit in the schedule properties, he is neither a necessary party nor a proper party to the suit. Hence, I.A. No. 5 is dismissed. Thereafter, applicant has filed one more application to implead him as defendant No. 4 to the said suit which is resisted by the present plaintiffs. The trial court after considering the application and objections, passed the order allowing the said application and impleaded the applicant as proposed defendant No. 4. Hence, the present petition is filed.