CONNECTED WITH APPELLANT. (By Shri. P.D.Surana, Advocate)

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1 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 03 RD DAY OF MARCH 2015 BEFORE: THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY MISCELLANEOUS CIVIL NO.9695 OF 2010 IN REGULAR FIRST APPEAL No.971 OF 2010 CONNECTED WITH MISCELLANEOUS CIVIL NO.9661 OF 2010 IN REGULAR FIRST APPEAL No.972 OF 2010 MISCELLANEOUS CIVIL NO.8863 OF 2010 IN REGULAR FIRST APPEAL No.973 OF 2010 MISC.CVL.No.9695/2010 In R.F.A.No.971/2010 BETWEEN: Smt. Lalitha Kothari, Wife of Suresh Kothari, Aged about 37 years, Residing at No:92, 3 rd Floor, 2 nd Main Road, Seshadripuram, Bangalore (By Shri. P.D.Surana, Advocate) APPELLANT

2 2 AND: 1. Sri. V. Sathyanarayana Rao, Son of Late B.Venkoba, Aged about 57 years, Residing at No.29, 9 th Cross, Swimming Pool Extension, Malleshwaram, Bangalore Sri. Thirupathi Reddy, Aged about 71 years, Son of Late B. Venkoba Rao, Residing at No.4, 12 th Cross, AECS Layout, Sanjaynagar, Bangalore RESPONDENTS (By Shri. S. Gangadhar Aithal and Shri. N.G.Sreedhar, Advocates for Respondent No.1; Respondent No.2 served ) ***** This Miscellaneous Civil filed under Section 151 of the Code of Civil Procedure, 1908, praying to permit the appellant to prefer the appeal R.F.A.No.971/2010. MISC.CVL.No.9661/2010 In R.F.A.No.972/2010 BETWEEN: Smt. Lalitha Kothari, Wife of Suresh Kothari, Aged about 37 years,

3 3 Residing at No:92, 3 rd Floor, 2 nd Main Road, Seshadripuram, Bangalore APPELLANT (By Shri. P.D.Surana, Advocate) AND: 1. Sri.B.N.Harshath, Aged about 38 years, Son of Late Sri. B.Narayan, 2. Smt. B.N.Mynavathi, Aged about 49 years, Daughter of Late N.Narayan, 3. Smt. B.N.Shailaja, Aged about 41years, Daughter of Late B.Narayan, No.20/1, 9 th Cross, 1 st Main, Govindaraj Nagar, Vijayanagar Post, Bangalore Sri. Thirupathi Reddy, Aged about 71 years, Son of Late B. Venkoba Rao, Residing at No.4, 12 th Cross, AECS Layout, Sanjaynagar, Bangalore RESPONDENTS (By Shri. S. Gangadhar Aithal, Advocate for Respondent Nos.1 to 3;

4 4 Respondent No.4 served ) This Miscellaneous Civil filed under Section 151 of the Code of Civil Procedure, 1908, praying to permit the appellant to prefer the appeal R.F.A.No.972/2010. MISC.CVL.No.8863/2010 In R.F.A.No.973/2010 BETWEEN: Smt. Lalitha Kothari, Wife of Suresh Kothari, Aged about 37 years, Residing at No:92, 3 rd Floor, 2 nd Main Road, Seshadripuram, Bangalore APPELLANT (By Shri. P.D.Surana, Advocate) AND: 1. Sri. V. Sathyanarayana Rao, Son of Late B. Venkoba Rao, Aged about 57 years, Residing at No.29, 9 th Cross, Swimming Pool Extension, Malleshwaram, Bangalore Sri.V.Shivaji Rao, Aged about 52 years, Wife of Late B. Venkoba Rao,

5 5 3. Sri. V.Prakash Rao, Aged about 47 years, Son of Late B. Venkoba RAo, 4. Sri. V. Ashok Babu, Aged about 45 years, Son of Late B. Venkoba Rao, 5. Smt. V. Ambujakashi, Aged about 56 years, Daughter of Late Sri. B. Venkoba Rao, 6. Smt. V. Gayathri, Aged about 46 years, Daughter of Late B. Venkoba Rao, 7. Smt. Usha, Aged about 40years, Daughter of Late Venkoba Rao, 8. Smt. V. Nandini, Aged about 30 years, Daughter of Late B.Venkoba Rao, 9. Smt. V. Malini, Aged about 25 years, Daughter of Late B. Venkoba Rao, Residing at No.29, 9 th Cross, Swimming Pool Extension, Malleshwaram, Bangalore Sri. Thirupathi Reddy, Aged about 71 years, Son of Late B. Venkoba Rao,

6 6 Residing at No.4, 12 th Cross, AECS Layout, Sanjaynagar, Bangalore RESPONDENTS (By Shri. S. Gangadhar Aithal, Advocate for Respondents 1 to 10 [vakalath not filed vide order dated in RFA No.971/2010] ) This Miscellaneous Civil filed under Section 151 of the Code of Civil Procedure, 1908, praying to permit the appellant to prefer the appeal R.F.A.No.973/2010. These Applications having been heard and reserved on and coming on for pronouncement of Orders this day, the Court delivered the following:- ORDER ON MISCELLANEOUS CIVIL NOS.9695/2010 IN RFA 971/2010, 9661/2010 IN RFA 972/2010 AND 8863/2010 IN RFA 973/2S010 These appeals are by the same appellant. A similar application is filed in each of the appeals, seeking leave of the court to prefer the appeal. The appellant was not a party to the suit in which the judgment and decree, under challenge, had been rendered. This common order is passed on the said applications. The factual background is as follows: The plaintiff, who is the respondent in the first of these appeals, had claimed that his father, late B. Narayan, had purchased a

7 7 house site bearing no.4 formed in land bearing Survey No.28/1 of Mallenahalli, under a sale deed dated from one Yeshodhamma and her children, Govardhan and Geetha. The plaintiff had claimed that the property, which was presently within the jurisdiction of the Bruhat Bangalore Mahanagara Palike (BBMP), was identified as No.5/6, Palace Guttahalli road, Sheshadripuram, Bangalore. It was claimed that the land bearing Survey No.28/1 of Malenahalli was purchased by one D.N.Ramaiah under a sale deed dated from one W.H.Hanumanthappa. He is said to have retained land measuring 1072 Square yards. He is said to have died. He had bequeathed the land under a will dated , to his daughter-in-law, Padmavathamma. There was said to be a suit for partition amongst the sons of D.N.Ramaiah, which is said to have ended in a compromise in appeals before this court in RFA 535/2002 and other connected cases. It is the appellant s case that she had purchased the said property bearing no.5/6 from the defendant - respondent no.2, and

8 8 that in terms of the compromise entered into between the parties in the above said appeals, this property was not allotted to any party nor was it shown to have been sold. It is subsequently that Padvathamma, who had bequeathed the property under the will of Ramaiah, which will was confirmed by all the parties to the compromise, sold the said property to Tirupathi Reddy, respondent no.2 from whom the appellant is said to have purchased the property. The suit for injunction filed by the plaintiff having been decreed restraining Tirupathi Reddy, under whom the appellant claims, from interfering with the suit property, the present appeal in RFA 971/2010 is filed. The two connected appeals in RFA 972 and 973 of 2010 were also filed in the same circumstances, only that the plaintiffs therein were said to be purchasers of two other house sites formed in the same land. They had also approached the court seeking identical reliefs, against the same Tirupathi Reddy, from whom the appellant had purchased those sites as well.

9 9 The applications were opposed by the plaintiff - respondents in each of the appeals, on maintainability. It is contended that the plaintiffs had, in fact, sought to implead the appellant as a party defendant in the suits, and the said applications were said to have been opposed by the appellant and the trial court had rejected the applications on the ground that there was no cause of action pleaded against the appellant, who was the proposed defendant. In that view of the matter, it is asserted that the appellant is estopped from seeking to prefer this appeal. It is also contended that pursuant to the compromise entered into by the vendors of the plaintiffs, in RFA 591/2002 and connected cases, the vendor of the appellant, Tirupathi Reddy, is said to have filed an application to implead himself as a party to the proceedings, and the same is said to have been rejected by a Division Bench of this court, reserving liberty to the said Reddy to file a separate suit, if he chose to air his grievances. Therefore, it is contended that the appellant claiming under Reddy, cannot claim a higher right to prefer these appeals.

10 10 In so far as the above objections are concerned, it is indeed seen that there was no cause of action pleaded in the first instance against the present appellant in those suits, filed against her vendor. The rejection of the applications on that ground was therefore in order. The second objection as to the vendor of the appellant having been denied an audience in the earlier appeals would not also be relevant. The appellant is aggrieved by the relief granted by the trial court, which restrains anyone claiming under the defendant from interfering with the suit property. The appellant claims under the defendant, Tirupathi Reddy. Without reference to the merits of the case, this court was concerned with the larger question as to the circumstances in which a person, who was not a party to the suit, could file an appeal against a judgment and decree by the court of first instance, and in the absence of pleadings and evidence on behalf of such an appellant as a part of the record, how would an appellant seek to sustain the challenge. After having heard the counsel for the parties at length,

11 11 and on a consideration of the case law, the following legal position is discernible. The Code of Civil Procedure, 1908, does not provide as to who can prefer an appeal. A party to a proceeding has a right to prefer an appeal, when such appeal is allowed by law. As to whether a person who is not a party can file an appeal under such circumstances, Courts in India have been following the practice of the Chancery Court, which is summarized in Halsbury s Laws of England as follows : Any of the parties to an action or matter and any persons served with notice of the judgment or order may appeal (by leave, where leave is necessary ). A person who is not a party and who has not been served with such notice cannot appeal without leave, but a person who might properly have been a party may obtain leave to appeal It is also noticed that the following dictum of Lindley L. J., in Re.Securities Insurance Co., (1894) 2 Ch 410, has been quoted with approval in a large number decisions, by the Courts in India:

12 12 Now, what was the practice of the Court of Chancery before 1862, and what has it been since. I understand the practice to be perfectly well settled that a person who is a party can appeal ( of course within the proper time) without any leave, and that a person who without being a party is either bound by the order or is aggrieved by it, or prejudicially affected by it, cannot appeal without leave. It does not require much to obtain leave. If a person alleging himself to be aggrieved by an order can make out even a prima facie case, he should have leave he will get it; but without leave he is not entitled to appeal. The question came up before the Supreme Court in Nookala Seetharamaiah v. Kotaiah Naidu, AIR 1970 SC 1354, and the above passage was quoted with approval and it was noted that the said proposition has been accepted by the High Courts in India. We may also refer to the following passages from Corpus Juris Secundum : Broadly speaking, a party or person is aggrieved by a decision when, and only when it

13 13 operates directly and injuriously upon his personal, pecuniary or property rights In legal acceptation a party or person is aggrieved by a judgment, decree or order, so as to be entitled to appeal whenever it operates prejudicially and directly upon his property or pecuniary rights, or upon his personal rights and only when it has such effect It has also been pointed out in several decisions that the question whether such leave should be granted or not is a matter which lies in the discretion of the Court of appeal and that no hard and fast rule can be laid down in the matter, the decision in each case depending upon its own facts and circumstances. One test in granting leave is whether a party could properly have been made a party to the original proceeding. (See Province of Bombay v. WI Automobile Association, AIR 1949 Bom141, Heersingh v. Veerka, AIR 1958 Guj, 127, Shivarayya v. Siddamma, AIR 1963 Mys, 181 and Executive Officer v. Raghavan Pillai, AIR 1961 Ker 114.)

14 14 In the instant matters on hand, as already pointed out, the judgment and decree in each of the cases, does impact on the appellant. Secondly, if there had been appropriate pleadings, the applications filed to implead the appellant in the respective suits may even have been allowed. The appellant claiming as a purchaser of the suit properties from the defendant was certainly a necessary and proper party, not withstanding a dispute as to the proper identity of the suit properties. Therefore, leave is granted to the appellant to prosecute these appeals. Sd/- JUDGE nv*