Sudheendra vs A. Arvind Rao

B. Manohar, J.—The petitioner is the plaintiff in O.S. No. 5205/2010, being aggrieved by the order dated 11.10.2012 made on I.A. No. 12/2012 by the Principal City Civil and Sessions Judge, Bangalore, filed this writ petition.

The petitioner filed the suit seeking for declaration declaring that the plaintiff is the absolute owner of the suit schedule property and also sought for permanent injunction restraining the defendants from alienating the suit schedule property. In the plaint, it was contended that the plaintiff is the beneficiary of the Will dated 16.09.2002 in respect of eastern portion of the property bearing No. 32, measuring East to West : 25 feet and North to South : 26 feet, situated at Sarakki, 5th Main Shakambarinagar, J.P. Nagar 1st Phase, Bangalore. After the death of the first defendant, the petitioner is entitled to enjoy the said property, as the life time interest is created on the first defendant. However, the second respondent is receiving the rent from the tenant who is occupying the said premises. In view of that, an application i.e., I.A. No. 12/2012 has been filed to implead the tenant who is occupying the premises as the defendant in the suit. The said application was opposed by the second defendant. The Trial Court after considering the matter in detail, rejected the said application on the ground that unless the issue regarding the Will and owners of the property is settled, the tenant of the premises cannot be impleaded as a party. The tenant is not a proper and necessary party to the suit. Being aggrieved by the said order, the petitioner has filed the said petition.

Sri. V. Rangaramu, learned advocate appearing for the petitioner contended that the order passed by the Trial Court rejecting I.A. No. 12/2012 is contrary to law. The tenant of the premises is a proper and necessary party. In view of the Will dated 16.09.2002, the petitioner has become the absolute owner of the property and entitled to collect the rent from the tenant. In order to settle the dispute between the parties, the tenant of the premises needs to be impleaded as proper and necessary party. Hence, the order passed by the Trial Court cannot be sustained.

On the other hand, Sri. K. Narasimha Murthy, learned Advocate appearing for the 2nd respondent argued in support of the order passed by the trial court and contended that the dispute is with regard to the Will dated 16.09.2002 said to have been executed by Smt. Kanakalatha creating life interest on the first defendant. Unless the Will is proved, the petitioner is not entitled for any right in the suit schedule property. For adjudicating the said dispute, the tenant is not a necessary and proper party and sought for dismissal of the writ petition.

I have carefully considered the arguments addressed by the learned counsel for the parties and perused the order impugned and other relevant records.

The petitioner filed a suit on the basis of the Will dated 16.09.2002 said to have been executed by Smt. A. Kanakalatha. However, the second defendant denied execution of the Will and claimed that on the basis of the gift executed by the 1st defendant, she claimed the right over the said property. The premises in question is in occupation of the tenant and the tenant has been paying rent to the second defendant after the death of the first defendant. In view of that, the petitioner filed I.A. 12/2012 to implead the tenant of the premises as a party to the proceedings. So that the court can issue a direction to the tenant.

The trial court after considering the matter, found that the tenant of the premises is not a proper and necessary party for adjudication of this dispute. The petitioner can claim the ownership over the property only on declaration in the suit filed by the plaintiff. Till then, he cannot claim any right over the suit schedule property. For deciding the dispute with regard to the Will as well as the gift, the tenant of the premises is not a proper and necessary party and rejected the same.

I find that there is no infirmity in the order passed by the trial court. Under Order I Rule 10(2) of CPC, the Court may at any stages of the proceedings as may appear to the court that name of any person who ought to have been joined as a party, or whose presence before the court may be necessary in order to enable the court to adjudicate upon and settle all questions in the suit can be impleaded as party. In the instant case, the plaintiff claims right over the property on the basis of the Will, which is yet to be produced. Unless the issue regarding the Will is settled by the court below, the petitioner cannot claim ownership over the property. Hence, the tenant of the premises is not a proper and necessary party. I do not find any infirmity and irregularity in the order passed by the trial court.

Accordingly, the petition is dismissed.

It is open to the petitioner to make necessary application before the court for appropriate relief.