THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
I.A.No.9 of 2021
In
A.S.No.915 of 2010
ORDER:
This application is filed under Order 1 Rule 10 and Section 151 of the Code of Civil Procedure, 1908 ('the Code') with a prayer to permit the petitioners to implead Leela Murali Raghavendra Rao S/o T.Seeta Ramanjaneyulu, aged 38 years, R/o 12-5-4/1, Pandurangapet, Tenali, Guntur District, as respondent no.26 in A.S.No.915 of 2010 as well as in other interlocutory applications pending therein.
2. The case of the petitioners, in brief, is as follows: 2(a) The 2nd petitioner herein is the 2nd appellant in A.S.No.915 of 2010 and 5th plaintiff in O.S.No.154 of 1998 (against which A.S.No.915 of 2010 is preferred). The suit is filed for declaration of share of 6/7th part of the plaintiffs in the suit schedule item nos.1 to 4 properties and recovery of possession and also to cancel the registered sale deed and registered gift deed both dated 07.09.1994 executed by late Tadiboina Venkata Ratnam in favour Jyothirmai (defendant no.5/respondent no.5) etc. 2(b) Another suit in O.S.No.95 of 1998 on the file of Principal Senior Civil Judge, Tenali, was filed by Tadiboina Chiranjeevi Seetharamanjaneyulu (defendant no.3 in O.S.154 of 1998) for declaration of title in respect of item no.1 and permanent injunction in respect of the 2nd item against late Tadiboina Tataiah (father of 2nd petitioner herein) and 17 others, including the 2nd petitioner as defendant no.6. This suit, on transfer to the District Court, was renumbered as 122 of 2001. Common evidence was recorded in O.S.154 of 1998 and disposed by a common judgment dated 23.12.2009 dismissing O.S.No.154 of 1998 and decreeing O.S.No.122 of 2001. As some of the parties 2 to the appeal died, petitions have been filed to bring their legal representatives on record.
2(c) Since respondent no.5, with the assistance of her children, tried to demolish properties in items 2 to 4, an application in I.A.No.2 of 2021 has been filed to restrain respondent no.5, her supporters and associates not to change the nature of physical features, including alienation of items 2 to 4 pending disposal of appeal A.S.No.915 of 2010. Initially, interim order was passed for a period of three weeks, vide order dated 15.11.2021.
2(d) The 2nd petitioner was informed that respondent no.5, pending this appeal, executed a registered gift deed dated 19.07.2017 in respect of items 3 & 4 and another registered gift deed, dated 01.09.2020 in respect of 27.65 square yards of item no.2 in favour of her son (proposed respondent no.26) and he submitted a plan to the Municipal Corporation, Tenali, to make constructions in the property, most of which stood in the name of respondent no.5. In view of the interim order, the son is also bound by the orders and the Corporation also cannot grant permission as he is not the owner of the entire property. To avoid unnecessary complications, steps are taken to implead respondent no.26.
3. No counter affidavit is filed opposing the application.
4. In spite of receipt of notice by the proposed party, he has not chosen to appear before the Court. No other respondent much less respondent No.5 has chosen to file any counter before conclusion of hearing of this petition.
5. Heard learned counsel appearing for the parties.
6. Though counter is not filed, it is argued that the proposed party cannot be added at this juncture since he will be bound by the principle of lis pendens as the transfer of right is pending the appeal.
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7. On the other hand, learned counsel for the petitioners submitted that for complete adjudication of the dispute, irrespective of the application of doctrine of lis pendens, it is necessary to permit the petitioners to implead the proposed party. He placed reliance on the decisions of this Court in M.Sudhakar Reddy v. A.P. Housing Board, Nakkalagutta, Hanamkonda, Warangal District1 and a decision of the Hon'ble Supreme Court in Amit Kumar Shaw v. Parida Khatoon and another2.
8. On the other hand, learned counsel for the 5th respondent submitted that there is no need to implead the proposed party. In support of his contention, learned counsel placed reliance on a decision of the Hon'ble Supreme Court in Sushil K. Chakravarthy v. Tej Properties Private Limited3 and submitted that the proposed party is no other than the legal representative of the deceased father and that without bringing him on record as legal representative in an appropriate manner, he cannot be brought on record under Order 1 Rule 10 of the Code.
9. In the present case, the petitioners seek to implead the proposed party, not as a legal representative, but in his capacity as 'alienee' of the property involved in the lis pending litigation and therefore, the arguments advanced opposing his impleadment on this ground cannot be countenanced. In that view of the matter, the decision relied on by the learned counsel for the 5th respondent has no application to the present case.
10. On the other hand, learned counsel for the petitioners submitted that the party having interest in the litigation by virtue of sale cannot be prevented from being a party to lis, merely because he/she is subject to principle of lis pendense because it is only an alienee who can effectively prosecute the litigation and protect his/her interest therein, since the vendor loses interest 1 2004 (3) ALD 548 2 (2005) 11 Supreme Court Cases 403 3 (2013) 9 Supreme Court Cases 642 4 in the lis and the property after alienation. In support of his submissions, he has drawn the attention of this Court to the observations in paragraph no.7 of the decision in M.Sudhakar Reddy (supra), which read as follows:
"There cannot be any doubt or controversy that these proposed parties could have approached the Court after the purchase even during the pendency of the suit. The question is whether on that ground alone these parties who are interested in the litigation by virtue of sale in their favour be negatived the relief of being brought on record for the purpose of further prosecuting the litigation or safeguarding their interest. It is no doubt true that the parties are expected to be careful, cautions and diligent in prosecuting a particular litigation and at the earliest point of time they may have to make necessary application to come on record. But when substantial rights of the parties are involved, such rights cannot be defeated merely on the ground of delay and such parties cannot be driven to yet another litigation which would definitely multiply the litigation. It is needless to say that such delay always can be compensated in monetary terms depending upon the facts and circumstances of the case. It is also pertinent to note that such relief cannot be negatived on the ground of doctrine of lis pendens."
11. As such, as rightly contended by the learned counsel for the petitioners, it is a fit case to allow the petitioners to implead the proposed party in the appeal and the pending interlocutory applications other than I.A.No.2 of 2021 since the relief claimed therein is against respondent no.5 therein including her supporters etc., and the said petition was also argued along with this petition. Moreover, if at all such relief as claimed in I.A.No.2 of 2021, i.e., interim injunction restraining the 5th respondent, her supporters and associates from 5 alienating the property and changing the nature of the property is also required against the proposed respondent No.26, a fresh application can also be filed if the relief already claimed is not adequate against him. It is also pertinent to mention here that there was an interim order passed in I.A.No.2 of 2021 even before fully hearing both the parties. In view thereof also, addition of party at that juncture would prolong hearing of the application and also complicate the inquiry in that pending petition. For all these reasons, this Court is of the view that the petitioners need not be permitted to implead respondent no.26 in I.A.No.2 of 2021.
12. Accordingly, this petition is allowed permitting the petitioners to implead respondent no.26 in the appeal as well as I.A.Nos.4, 6, 7, 8 of 2021 and to carry out amendments in the corresponding proceedings by adding his name, that is, Leela Murali Raghavendra Rao S/o T.Seeta Ramanjaneyulu, aged 38 years, R/o 12-5-4/1, Pandurangapet, Tenali, Guntur District, in the long and short cause titles.
________________ B.S.BHANUMATHI, J 16th February, 2022 RAR