@JUDGMENTTAG-ORDER
Aravind Kumar, J.@mdashPlaintiff in O.S. No. 3645/1993 (P.Mis.20/1991) is questioning the correctness and legality of the order passed by the Addl. City Civil and Sessions Judge, Bangalore dated 2.1.2015 Annexure ''T'' wherein three interlocutory applications filed by the plaintiff under order 1 Rule 10(2) of the CPC (I.A. No. 22 and IA. No. 24) and for amendment of the plaint (IA. No. 25) came to be dismissed.
2. I have heard Sri A.S. Srinivasan, party appearing in person and Smt. Manjula N. Tejaswi, learned counsel appearing for respondent No. 1, Sri G.B. Nandish Gowda appearing on behalf of Sri R.B. Sadashivappa for respondent No. 4 and Sri. Padma Prasad appearing on behalf of Sri. G. Devaraj for respondent Nos. 5 and 6. Respondent Nos. 2 and 3 are served and unrepresented. By consent of party in person and learned advocates appearing for respondents, these writ petitions are taken up for consideration for final disposal.
3. Petitioner herein has filed a petition in P.Mis.20/1991 to sue as an indigent person. Said petition having been allowed it was ordered to be converted into suit. Accordingly, O.S. No. 3645/1993 came to be registered, which suit has been filed for recovery of a sum of Rs. 187,60,51,945/- with interest @ 15% from the date of suit till date of payment contending inter alia that plaintiff had been allotted an industrial shed and he has been dispossessed contrary to the terms agreed to under the lease cum sale agreement and as such he is entitled for the damages to be paid by first respondent-defendant. On service of suit summons, defendants have appeared, filed their written statements and have also denied the averments made in the plaint. During the pendency of the suit, the industrial shed which was allotted to the plaintiff came to be re-allotted to proposed defendant No. 4 on 1.10.1994 and a lease cum sale agreement also came to be executed on 20.10.1994 in his favour and thereafter, a sale deed was also executed on 7.4.2005. Proposed 4th defendant has sold said industrial shed in favour of the 5th defendant.
4. During the pendency of above said suit, plaintiff has filed three interlocutory applications as already noticed herein above and the said applications were resisted by defendants by filing detailed statement of objections. Trial Court while adjudicating these applications under the impugned order dated 2.1.2015 has held that consideration of I.A. No. 25 would have a bearing on considering the prayer made in I.A. No. 22 and I.A. No. 24 and after arriving at a conclusion that prayer sought for in I.A. No. 25 was to the effect that plaintiff intended to raise additional plea and incorporate additional prayer for seeking delivery of possession of industrial shed in question, has proceeded to examine said prayer and found that it is highly belated and plaintiff had not complied with the directions issued by the Division Bench of this Court and accordingly, rejected the same and consequently rejected I.A. No. 22 and I.A. No. 24 for impleading also. Hence, these writ petitions.
5. It is the contention of Sri. A.S. Srinivasan, party in person that trial Court has committed a serious error in rejecting the applications, in as much as, the event of dispossession of plaintiff from the industrial shed which was allotted to him was during the pendency of the suit and said subsequent event was required to be brought on record and as such, trial Court ought to have permitted plaintiff to raise a plea in this regard as also permitted him to incorporate additional prayer seeking delivery of possession of the industrial shed. He would also submit that on account of industrial shed having been surreptiously allotted by the first defendant in favour of proposed 4th defendant and 4th defendant in turn having sold in favour of 5th defendant, they are all necessary and proper parties and said act of allotment and selling having taken place at the behest of proposed defendant Nos. 2 and 3, they are also necessary and proper parties to the suit and as such all these persons ought to have been impleaded as defendants 2 to 6 and the amendment of the plaint ought to have been allowed. On account of rejection of these applications, he prays for the writ petition being allowed by setting aside the impugned order by allowing the applications in question.
6. Per-contra Smt. Manjula N. Tejaswi, Sri. G.B. Nandish Gowda and Sri. Padma Prasad in chorus would support the impugned order and they pray for dismissal of the writ petitions.
7. Having heard the petitioner who is party appearing in person and the learned advocates appearing for the respondents and after bestowing my careful and anxious consideration to the rival contentions raised, it is noticed that at the first instance on account of non-payment of alleged rents due to the first respondent herein, first respondent initiated proceedings against the plaintiff by canceling the allotment and resuming possession of the industrial shed. This was questioned by the plaintiff before this Court in W.P. No. 5167/1986 and said writ petition came to be dismissed. It was carried by the plaintiff in W.A. No. 1411/1986. Division Bench had ordered that plaintiff has to deposit a sum of Rs. 30,000/- on or before 15.10.1988 and on payment of the said amount possession of industrial shed had to be delivered to the plaintiff by first defendant. It was also further ordered that plaintiff has to pay a sum of Rs. 5,000/- every month beginning from 5.12.1988 and in case of default, first defendant was granted liberty to resume possession of the shed by putting up lock and had also held that plaintiff would not be entitled to raise any objection in that regard. On account of first defendant not having delivered possession it is stated at the bar that plaintiff moved an application before the Division Bench and after considering prayer made by the plaintiff a Court Commissioner was appointed and in his presence possession of the industrial shed was delivered to the plaintiff Thereafter, on account of non-payment of the sum of Rs. 5,000/- every month by the plaintiff as agreed to before the Division Bench and as ordered in W.A. No. 1411/1986, first defendant had resumed possession of the industrial shed and thereafter allotted the same to one Mr. Abdul Hameed of M/s. A.M. Pulverizers by allotment dated 1.10.1994. Subsequently, lease cum sale agreement was also executed on 20.10.1994 in his favour.
8. The grievance of the petitioner herein is that the Division Bench committed a serious error in not recalling the order directing the petitioner plaintiff to pay a sum of Rs. 5,000/-, in as much as, he had already been declared as indigent person in P.Mis. No. 20/1991 and as such, condition imposed by the Division Bench was onerous and plaintiff was not in a position to comply with the said direction. Said contention or argument raised by the petitioner-party in person in these proceedings requires to be considered for the purpose of outright rejection. If petitioner had any grievance about the order passed by division bench in W.A. No. 1411/1996, it was open to him to approach the Division Bench seeking for variation or modification or review and having not undertaken said exercise, he cannot be heard to contend that condition imposed by the Division Bench while ordering for delivery of possession of industrial shed in W.A. No. 1411/1996 is to be re-examined or re-looked into by this Court, is outside the scope of the proceedings and as such, said contention raised by the petitioner stands rejected.
9. The prayer which has been sought for by the petitioner in I.A. No. 25 before the trial Court is to seek for incorporating a prayer for possession of the industrial shed which was allotted to him in the year 1981. Records would disclose that petitioner had filed I.A. No. 7 for similar relief at the first instance and said application for reasons best known was withdrawn on 29.1.2007. Thereafterwards, till the date of filing of the present application for amendment on 28.7.2011 he did not pursue his grievance for seeking delivery of possession of A'' schedule property. The Hon''ble Apex Court in the case of
10. In the instant case, undisputedly possession of the industrial shed was resumed by the first defendant in the year 1991 i.e., on 30.11.1991. First defendant i.e., first respondent herein having taken possession of industrial shed from the plaintiff on 30.11.1991 had re-allotted the same in favour of proposed 4th defendant on 7.4.2005. This factual aspect was well within the knowledge of the plaintiff As such, plaintiff had filed an application under Order 6 Rule 17 of CPC namely I.A. No. 7 seeking for amendment of the plaint in which application he had sought for relief of possession. Said I.A. No. 7 came to be filed by plaintiff writ petition on 26.10.2006 and it was dismissed as not pressed on 29.1.2007. As on 26.10.2006 plaintiff was fully aware of possession of industrial shed having been taken over from him and as such, he had withdrawn said application to pursue his grievance in accordance with law. As on date of withdrawing of I.A. No. 7 as well as filing of IA. No. 25 more than 4 years have lapsed and as such, valuable right had accrued in favour of the defendants. Under Article 64 of the Limitation Act, right of plaintiff to seek possession who has been dispossessed of the immovable property to claim possession would be 12 years from the date of such dispossession.
11. In the first instance, plaintiff does not seriously dispute that he had been dispossessed from the industrial shed in question on 30.11.1991. As such, as on 29.11.2003 the right of the plaintiff to claim possession of the industrial shed had been lost. I.A. No. 7 filed on 26.10.2006 itself was barred by limitation, so also, the subsequent application IA. No. 25 filed on 28.07.2011. As such, the trial Court has rightly held that the petitioner''s prayer for incorporating amendment of plaint to seek possession of the suit schedule property was not accepted. Though not, trial has not stated in such actual words, sum and substance of the reasonings adopted by trial Court is a clear pointer to said fact. That apart, very character of the suit would get changed by virtue of the proposed amendment. As such, it has been rightly rejected by the trial Court by assigning detailed reasoning in paragraph 20 of the impugned order.
12. As rightly pointed out by the trial Court in view of relief of possession sought for by the plaintiff having been denied, the question of permitting plaintiff to implead subsequent purchasers namely defendants 4 and 5 would not arise and as such, the other defendants namely, defendants 2 and 3 being the officials of first defendant who are said to have acted to allot the industrial shed in favour of 4th defendant would also not be necessary and proper parties and as such, question of impleading them would also not arise and it would only be a exercise in futility.
13. In that view of the matter, I do not find any error that has been committed by the trial Court in dismissing the applications I.A. Nos. 22, 24 and 25. Hence, I proceed to pass the following:
ORDER
"(i) Writ petitions are hereby dismissed.
(ii) Order dated 2.1.2015 Annexure ''T is hereby confirmed.
(iii) Cost made easy."
Ordered Accordingly.
