THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI
C.R.P.No. 2238 of 2022
ORDER:
This Civil Revision Petition is filed against the order of the Principal District Judge, dated 26.08.2022 in I.A.No.135 of 2022 in O.S.No.63 of 2012. The petitioner herein filed I.A.No.135 of 2022 to implead himself as defendant No.6 in the suit.
2. Brief facts relevant to the filing of the present Civil Revision Petition are that one K.Buchi Reddy had two sons by name Venkat Reddy and Damoder Reddy. Venkat Reddy in turn had two sons by name Jagadeesh Reddy and Sudheer Reddy. While Damoder Reddy also had two sons by name Srinivas Reddy and Raghuram Reddy. There was a partition of properties between the Venkat Reddy and Damoder Reddy. According to K.Damoder Reddy, as per the memorandum of past partition dated 01.05.1985, the house property situated at Mahabubad, fell to his share, but K.Sudheer Reddy, in collusion with other defendants, created fictitious documents of sale. In view of the same, K.Damoder Reddy filed a suit in O.S.No.60 of 2012 against K.Sudheer Reddy and others. The allegation was that Sudheer Reddy/defendant No.1 has created fictitious 2 PMD,J CRP.No.2238 of 2022 documents of sale in favour of defendant No.2 and in turn defendant No.2 has sold away the property to defendant Nos.3 and 4 and later in favour of defendant No.5. In view of the same, K.Damoder Reddy filed a suit against the K.Sudheer Reddy/defendant No.1 and subsequent purchasers of the property as defendant Nos.2 to 5 and sought cancellation of the sale deeds of the defendants and to declare the plaintiff as the owner of the property and put him in possession of the suit scheduled property.
3. The defendants filed written statements denying the allegations of the plaintiff. Subsequently, the brother of K.Sudheer Reddy filed suit O.S.No.169 of 2012 for partition and separate possession of the property. He made K.Sudheer Reddy as defendant No.1 and subsequent purchasers of the property as defendants No.2 to 5. The defendants also filed their written statements in O.S.No.169 of 2012. Thereafter, the suit was dismissed for default. The plaintiff, who is the petitioner in the Civil Revision Petition, filed I.A.No.377 of 2022 for restoration of the suit and the same was pending consideration of the Court. In the meantime, in suit i.e., O.S.No.60 of 2012, the evidence of Pws1 to 4 has already been completed and was coming for 3 PMD,J CRP.No.2238 of 2022 defendant's evidence. At such time, the petitioner filed I.A.No.135 of 2022, for impleading himself as defendant No.6 in O.S.No.60 of 2012. In the meantime, the plaintiff had died and his family members have been impleaded as co-plaintiffs. The plaintiffs opposed the implead petition and the defendants No.6 to 9 also opposed the said application.
4. The Principal District Judge at Yadadri Bhongir, after considering all the material on record, dismissed the I.A., against which the present Civil Revision Petition is filed.
5. The learned counsel for the petitioner, while reiterating the submissions made in the affidavits filed in support of I.A.No.135 of 2022, submitted that the petitioner has filed the suit O.S.No. 169 of 2012 for partition against his brother, who is the defendant No.1 in suit O.S.No.60 of 2012 and since the property included in the partition suit is the same property which is also involved in O.S.No.60 of 2012, the petitioner is the proper and necessary party to the suit O.S.No.60 of 2012 and therefore, he has to be impleaded as defendants No.6 in the suit. In support of his contention, he placed reliance upon the following three judgments:
4
PMD,J CRP.No.2238 of 2022
1. Sumatibai and Others Vs. Paras Finance Co.1;
2. Mumbai International Airport Private Limited Vs. Regency Convention Centre and Hotels Private Limited and Others2;
3. Pankajbhai Rameshbhai Zalavadiya Vs. Jethabhai Kalabhai Zalavadiya3.
6. Learned counsel for the respondents however, opposed the said contentions and submitted that the plaintiff No.1 in O.S.No.60 of 2012 and the father of the petitioner herein were brothers and there was a partition amongst them long ago and the petitioner had also filed a suit for partition only against defendant No.1, which clearly goes to show that the partition between the plaintiff in O.S.No.60 of 2012 and the father of the plaintiff in O.S.No.169 of 2012 has already been given effect to. It is submitted that the Principal District Judge has considered the contentions of both the parties and has rightly held that the implead petition has been filed at the fag end of trial of the suit only to drag on the matter and without following of his application for restoration of the partition suit. Therefore, he 1 (2007) 10 SCC 82 2 (2010) 7 SCC 417 3 (2007) 9 SCC 700 5 PMD,J CRP.No.2238 of 2022 supported the order of the lower Court and prayed for dismissal of the Civil Revision Petition.
7. Having regard to the rival contentions and the material on record, this Court finds that the plaintiffs in O.S.No.60 of 2012 and also defendant No.1 in O.S.No.60 of 2012 are related to each other. The plaintiffs as well as the defendant No.1 and also the petitioner herein are all claiming to be the owners of the property in house No. 4-3-79 at Mahabubad. Merely, because the petitioner has filed an application for partition against his brother in O.S.No.169 of 2012 i.e., after the respondent No.1 herein has filed O.S.No.60 of 2012, he would not get a right or title over the property. As rightly held by the Principal District Judge, the petitioner was well aware of the dismissal of the suit and has filed an application for restoration after a period of nearly four years and has filed an application for impleadment in O.S.No.60 of 2012 only at the fag end of trial. The contentions of the petitioner that he was not aware of the proceeding in O.S.No.60 of 2012, is not acceptable.
8. In the judgments relied upon by the petitioner in Sumti Bhai and Others (cited supra), the Hon'ble Supreme Court has 6 PMD,J CRP.No.2238 of 2022 clearly held that every judgment is governed and qualified by the particular facts of the case and therefore, precautions in derivation of the same, is reiterated. In the case of Mumbai International Airport (cited supra), the Hon'ble Supreme Court has held that the discretion of Court to add a person as party is limited to the persons found to be necessary party or proper party and such discretion is judicial discretion and has to be exercised according to the reasonableness and fairness and not according to whims and caprice. In the case of the Pankaj Bhai Ramesh Bhai Zalavadiya (cited supra), the Hon'ble Supreme Court has reiterated the above principle that only necessary and proper parties are to be made parties to the suit. The Court has held that a 'necessary party' is a person, who ought to have been joined as a party and in whose absence, no effective decree could be passed at all by the Court and if a necessary party is not impleaded, the suit itself is liable to be dismissed, and a 'proper party' is a party, who though not a necessary party, is a person whose presence would enable the Court to completely, effectively and adequately adjudicate on all matters of dispute in the suit, though he need not be a person, in favour or whom against the decree is to be made. It was further held that if a 7 PMD,J CRP.No.2238 of 2022 person is not found to be proper or necessary party, the Court has no jurisdiction to implead him against the wishes of the plaintiff. In the present case, it is found that the suit O.S.No.60 of 2012 is filed for cancellation of sale deeds and consequently for declaration of title. As the petitioner was not a party to any of the alleged sale documents, he is not a necessary party nor is he a proper party to the suit. If the defendant No.1 succeeded, then the petitioner would have a right to proceed against the defendant No.1, for his right in the property in the partition suit i.e., in O.S.No.169 of 2012. Therefore, this Court does not find any reason to interfere with the order of the Principal District Judge in I.A.No.135 of 2022.
9. Accordingly, this Civil Revision Petition is dismissed. There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this Civil Revision Petition, shall stand closed.
____________________________
JUSTICE P.MADHAVI DEVI
Date: 16.03.2023
bak
8
PMD,J
CRP.No.2238 of 2022
THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI C.R.P.No. 2238 of 2022 Date: 16.03.2023 bak