IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT: HYDERABAD
CORAM:
* THE HON'BLE SRI JUSTICE K. LAKSHMAN
+ CIVIL REVISION PETITION No. 1969 OF 2023
% Delivered on:13.10.2023
Between:
# Gandhi Ajith, ...... Petitioner
And
$ Godavarthi Nageswara Rao
and others, .............respondents
! For Petitioner : Sri Kadaru Prabhakar Rao
Ld. Counsel,
^ For Respondents : Sri Madiraju Prabhakar Rao,
Ld. Counsel
< Gist
:
> Head Note
:
? Cases Referred :
1. (2005) 6 SCC 733
2.
(2006) 5 SCC 532
3.
(2007) 10 SCC 82
4.
2022 Live Law (SC) 802
5. (2010) 7 SCC 417
6. (2020) 13 SCC 773
2
KL, J
CRP No.1969 of 2023
HON'BLE SRI JUSTICE K. LAKSHMAN
CIVIL REVISION PETITION No.1969 OF 2023
ORDER:
Heard Mr. Kadaru Prabhakar Rao, learned counsel for the petitioner and Mr. Madiraju Prabhakar Rao, learned counsel for respondent No.1 and 2. According to learned counsel for the petitioner, respondent No.3 is not necessary party to the present revision.
2. This revision is filed under Article - 227 of the Constitution of India challenging the order dated 06.06.2023 in I.A. No.1 of 2023 in O.S. No.8 of 2018 passed by I Additional District Judge, Khammam, dismissing the petition filed under Order - I, Rule 10 (2) of C.P.C.
3. Respondent Nos.1 and 2 herein - Plaintiffs filed a suit vide O.S. No.8 of 2018 against respondent No.3 - defendant for specific performance of contract based on the agreement of sale dated 19.05.2016 in respect of suit schedule property bearing Municipal House No.4-8-4 Part, 4-8-4/1/2 Part and 4-8-4/1/2A part along with its place measuring 2705 square yards with constructed area of RCC roof 3 KL, J CRP No.1969 of 2023 measuring 7504.83 square feet and GI sheet roof measuring to an extent of 194.92 square feet vide plot Nos.4 Part, 5 and 6 in and out of Survey No.218 of Prakashnagar, Khammam Municipal Corporation, Khammam City and District.
4. During pendency of the said suit, the petitioner herein had filed a petition vide I.A. No.1 of 2023 under Order - I, Rule - 10 (2) of the Code of Civil Procedure, 1908, to implead him in the said suit as defendant No.2 on the following grounds:-
i) Respondent No.3 herein is his father;
ii) He has filed a suit for partition vide O.S. No.88 of 2017
against respondent No.3 herein - sole defendant and his brother, namely Gandhi Aravind claiming 1/3rd share in the suit schedule property in O.S. No.88 of 2017 on the file of Judge, Family Court - cum - IV Additional District Judge, Khammam;
iii) The said suit O.S. No.88 of 2017 was decreed vide judgment and decree dated 27.11.2017. A preliminary decree was passed for partition of the suit schedule properties therein into three (03) equal shares and allotting one such share to the petitioner herein; 4
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iv) 1/3rd share of the petitioner herein is the part and parcel of the suit schedule property in O.S. No.8 of 2018;
v) The plaintiffs herein have filed the suit in O.S. No.8 of 2018 in collusion with respondent No.3 herein in order to defraud his legitimate share;
vi) Agreement of sale dated 19.05.2016 is created for the purpose of filing O.S.No.8 of 2018; and
vii) In view of the above, the petitioner herein is just and necessary party to the suit in O.S.No.8 of 2018.
5. Respondent Nos.1 and 2 filed their counter refuting the relief by contending as under:
i) They filed the subject suit basing on the agreement of sale 19.05.2016;
ii) Respondent No.3 acquired the suit schedule property out of confirmation of oral partition deed from his family members vide register document bearing No.8014 of 2014, dated 05.11.2014;
iii) Out of family necessities, respondent No.3 herein - sole defendant approached respondent Nos.1 and 2 and offered to alienate the suit schedule property for a lump 5 KL, J CRP No.1969 of 2023 sum sale consideration of Rs.80.00 lakhs and accepting the said offer, the plaintiffs have paid the entire sale consideration amount to the sole defendant on the date of entering into the said agreement of sale at the ratio of 30:70 in the presence of attestors, namely Mr. M. Samba Shiva Rao and Mr.K. Naveen Kumar;
iv) The sole defendant delivered the possession of the suit schedule property in favour of the plaintiffs and agreed to execute a registered sale deed in their name;
v) Since the sole defendant failed to execute the register sale deed, they filed the subject suit after issuing a legal notice;
vi) Plaintiff No.1 was examined as PW.1 and Exs.A1 to A9 were marked and when the suit was coming up for further evidence on behalf of plaintiffs, the petitioner herein, son of sole defendant filed the present petition to implead him as defendant No.2;
vii) Since the sole defendant is the absolute owner of the suit schedule property, the petitioner herein is nothing to do 6 KL, J CRP No.1969 of 2023 with the said property and, therefore, he is not a necessary party to the subject suit; and
viii) The petitioner herein in collusion with his father and brother filed the suit in O.S. No.88 of 2017 only after entering into the agreement of sale dated 19.05.2016 and, therefore, the result of the said suit is not binding upon the subject suit as there was no final decree.
6. Vide order dated 06.06.2023, the Court below dismissed the said petition on the following grounds:
i) The decree passed in partition suit (O.S.No.88 of 2017) filed by the petitioner herein is an ex parte decree;
ii) According to the sole defendant, the ex parte decree was passed on 27.11.2017, whereas the subject suit was filed on 18.01.2018;
iii) Since 2018 the petitioner kept quiet till filing the present petition;
iv) The sole defendant had acquired the suit schedule property by virtue of a registered partition deed bearing document No.8014 of 2014 and the said property is only a joint family property 7 KL, J CRP No.1969 of 2023 but not ancestral property. Thus, the alleged partition is not valid under the said document.
v) The decree passed in O.S.No.88 of 2017 is only a preliminary decree, but not a final decree;
vi) Possession of the suit schedule property was already delivered to the plaintiffs;
vii) The petitioner did not assign any reason for impleading him as defendant No.2; and
viii) In the said circumstances, the petitioner is not a necessary party to the subject suit.
7. Sri Kadaru Prabhakar Rao, learned counsel for the petitioner would contend that the trial Court dismissed I.A.No.1 of 2023 in O.S.No.8 of 2018, filed by the petitioner seeking to implead him as defendant No.2 without considering that he has interest over the subject property, without considering the decree passed in O.S.No.88 of 2017 and that respondents 1 and 2 have filed O.S.No.8 of 2018 against 3rd respondent, his father. The impugned order is contrary to Order I Rule 10 of CPC and also principle laid down by this Court and the Apex Court.
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8. Whereas, Sri Madiraju Prabhakar Rao, learned counsel for the respondent Nos.1 and 2/plaintiffs would submit that the trial Court, on consideration of the scope of Order I Rule 10 of CPC and also partition of joint family property vide document bearing No.8014 of 2014, dismissed the present application. There is no error in it. The petitioner herein filed the present revision only to drag on the proceedings in O.S.No.8 of 2018.
FINDINGS OF THE COURT:-
9. As discussed supra, respondent Nos.1 and 2 have filed a suit vide O.S.No.8 of 2018 against 3rd respondent herein for specific performance of agreement of sale dated 19.05.2016 in respect of suit schedule properties mentioned therein. Admittedly, the petitioner herein is not a party to the said agreement of sale and thus, he is not a party to the contract between the respondents 1 and 2 and the 3rd respondent. However, he is the son of 3rd respondent. He filed a suit vide O.S.No.88 of 2017 against the 3rd respondent-his father and his brother for partition and separate possession of the suit schedule property therein.
10. In O.S.No.88 of 2017, the petitioner herein contended that they belong to Nadar community governed by Hindu Mithakshara 9 KL, J CRP No.1969 of 2023 School. Their family hails from Virudunagar Town, Tamilnadu State. He originally belongs to business family of Nadar community. Initially, in the year 1998, V.P.S.Ayyam Perumal Nadar and his sons did various businesses. Due to lack of coordination and misunderstandings among the family members which effected oral partition dated 05.10.1998 which was confirmed by a memorandum of oral partition, dated 17.01.2000. Differences arose with regard to arrangement of Schedule-I properties consisting of 294 properties among the 77 individuals. The properties were allotted as per Schedule-II. Serial No.31 of Schedule-I was allotted to Defendant No.1/3rd respondent herein and in Schedule-II, Item Nos. 4, 10, 11, 12, 13, 17, 26, 27, 28 and 29 were allotted to the 3rd respondent herein. The same was referred in item No.1 of 'A' and 'B' schedule properties in the suit. The said memorandum of oral partition was registered at Virudnagar. Therefore, according to him, it is ancestral property and he is entitled for share.
11. It is further contended that his grandfather by name late Ramachandran took promise from his son not to deviate or resist any decision with regard to the partition. As such, sons of late Ramachandran not opposed the partition. Defendant No.1 and the 10 KL, J CRP No.1969 of 2023 plaintiff and Defendant No.2 were allotted ten items, as per Schedule- 6, at present, only three items are remaining. Defendant No.2 married in the year 2013 and the in-laws insisted defendant No.2 to raise objection against the injustice done to their father. The petitioner herein/plaintiff demanded for partition of family assets and expressed his intention to have separate share from the ancestral properties. With the said contentions, he filed the said suit and it was decreed ex parte on 27.11.2017.
12. It is apt to refer that the petitioner herein did not file any application seeking final decree proceedings. Therefore, the said judgment and decree dated 27.11.2017 remained as a paper decree. However, in the said suit, the official memorandum of oral partition dated 01.04.2004 was marked as Ex.A.1.
13. Whereas, respondents 1 and 2 herein have filed a suit vide O.S.No.8 of 2018 against the 3rd respondent, father of the petitioner herein seeking specific performance of contract based on the agreement of sale, dated 19.05.2016 contending that the 3rd respondent is the owner of the suit schedule properties. For his family necessities, he had approached them and offered to alienate the suit schedule property for a lumpsum sale consideration of Rs.80 lakhs for which 11 KL, J CRP No.1969 of 2023 they have accepted. 3rd respondent herein had acquired the said property out of confirmation of oral partition from his family members vide registered document No.8014 of 2014 dated 05.11.2014. They have entered into agreement of sale dated 19.05.2016 on the specific terms and conditions mentioned therein and paid entire sale consideration of Rs.80 lakhs to the 3rd respondent herein. Having received the said sale consideration and executing agreement of sale dated 19.05.2016, 3rd respondent delivered physical possession of the suit schedule property in favour of respondents/plaintiffs and thus, they became the owners as well as possessors of the suit schedule property. Even then, 3rd respondent herein did not execute registered sale deed in their favour. Therefore, they have filed the aforesaid suit.
14. It is apt to note that house bearing No.4-8-4/1/2, two godowns built with RCC roof, in total, with built up area, measuring 750.83 sq.yards equivalent to 2261.73 meters. Item No.2 of Schedule- A of the suit (O.S.No.88 of 2017) schedule property is also the suit schedule property in O.S.No.8 of 2018.
15. As discussed supra, admittedly, the petitioner herein, though not a party to the said agreement of sale dated 19.05.2016, is claiming right over the suit schedule property in O.S.No.8 of 2018 relating to 12 KL, J CRP No.1969 of 2023 oral partition dated 05.10.1998 confirmed by the memorandum of oral partition dated 17.01.2000. however, Ex.A.1 oral partition dated 17.01.2004 was also marked as Ex.A.1.
16. In the aforesaid suit i.e. O.S.No.88 of 2017, 3rd respondent herein had filed written statement admitting that the suit schedule properties are their ancestral properties and further admitted that the relationship between him, the petitioner herein/plaintiff and defendant No.2 son and brother of the 3rd respondent and the petitioner herein. Basing on the said admission, the Court below decreed the suit on 27.11.2017. Even then, the petitioner herein did not file an application seeking to pass final decree proceedings.
17. In the light of the aforesaid discussion, it is relevant to extract Order I Rule 10 of CPC which is as follows:-
10. Suit in name of wrong plaintiff.
(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) Court may strike out or add parties- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as 13 KL, J CRP No.1969 of 2023 plaintiff or defendant, be struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended--Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copes of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.
18. The scope and ambit of Order I Rule 10 of CPC was considered by the Apex Court in Kasturi Vs. Iyyamperumal 1 and paragraph Nos.15 and 16 are relevant, the same are extracted below:-
15. That apart, from a plain reading of the expression used in sub-rule (2) Order 1 Rule 10 of the CPC "all the questions involved in the suit" it is abundantly clear that the legislature clearly meant that the controversies raised as between the parties to the litigation must be gone into only, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiff/appellant and the defendants inter se or questions between the parties to the suit and a third party. In our view, therefore, the court cannot allow adjudication of collateral matters so as to convert a suit for specific performance of contract for sale into a 1 (2005) 6 SCC 733 14 KL, J CRP No.1969 of 2023 complicated suit for title between the plaintiff/appellant on one hand and Respondent Nos. 2 & 3 and Respondent Nos. 1 and 4 to 11 on the other.
This addition, if allowed, would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit would have to be gone into. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of the respondent Nos.1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made hereinearlier, the respondent Nos.1 and 4 to 11 would not, at all, be necessary to be added in the instant suit for specific performance of the contract for sale.
16. It is difficult to conceive that while deciding the question as to who is in possession of the contracted property, it would not be open to the Court to decide the question of possession of a third party/ or a stranger as first the lis to be decided is the enforceability of the contract entered into between the appellant and the respondent No. 3 and whether contract was executed by the appellant and the respondent Nos.2 and 3 for sale of the contracted property, whether the plaintiffs were ready and willing to perform their part of the contract and whether the appellant is entitled to a decree for specific performance of a contract for sale against the respondent Nos.2 and 3. Secondly in that case, whoever asserts his independent possession of the contracted property has to be added in the suit, then this process may continue without a final decision of the suit. Apart from that, the intervener must be directly and legally interested in the answers to the controversies involved in the suit for specific performance of the contract for sale. In Amol Vs. Rasheed Tuck and Sons Ltd. [1956(1) All Eng.Reporter, 273] it has been held that a person is legally interested in the answers to the controversies only if he can satisfy the Court that it may lead to a result that will effect him legally.
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19. The Apex Court laid down two tests i.e. i) there must be a right to some relief against such party in respect of controversies involved in the proceedings, ii) no effective decree can be passed in the absence of such party. It was further held that if the plaintiff who has filed a suit for specific performance of the contract to sell even after receiving the notice of claim of title and possession by other persons (not pertains to the suit and even not parties to the agreement to sell for which a decree for specific performance is sought) does not want to join them in the pending suit, it is always done at the risk of the plaintiff because he cannot be forced upon to join third parties as party-defendants in such suit. Considering the principle that the plaintiff therein is the dominus litis and cannot be forced to add parties against whom he does not want to fight unless there is a compulsion of the rule of law.
20. In Bhogadi Kannababu & Ors vs Vuggina Pydamma 2 , the Apex Court held that in an application for impleadment under Order 1 Rule 10 of the Code of Civil Procedure, the only question that needs to be decided is whether the presence of the applicant before the Court may be necessary in order to enable the Court effectually and 2 (2006) 5 SCC 532 16 KL, J CRP No.1969 of 2023 completely to adjudicate upon and settle all the questions involved in the proceedings. But by such addition, it cannot be said that they were also entitled to succeed to the claims in question or adjudicate upon.
21. In Sumtibai Vs. Paras Finance Co.Rg. Partnership Firm Beawer (Raj.) Through Smt. Mankanwar3, the Apex Court held that if a party can show a fair semblance of title or interest, he can certainly file an application for impleadment.
22. In Moreshar Yadao Rao Mahajan Vs. Vyankatesh Sitaram Bhedi (died) by L.Rs. 4 wherein in the subject agreement of sale itself, it was mentioned that the suit property was a property jointly owned by the defendant therein, his wife and three sons, no effective decree can be passed in the absence of the wife and sons of the defendant therein and that they are necessary parties.
23. In Mumbai International Airport Private Limited Vs. Regency Convention Centre and Hotels Private Limited 5, it was held as follows:-
15. 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 3 (2007) 10 SCC 82 4 2022 LiveLaw (SC) 802 5 (2010) 7 SCC 417 17 KL, J CRP No.1969 of 2023 court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. 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 d adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.
24. In Gurmit Singh Bhatia Vs. Kiran Kant Robinson 6, the Apex Court relying on the principle laid down by it in Kasturi (supra), held that a pendenti lite purchaser is not a necessary party.
25. In the light of the aforesaid legal position, coming to the facts of the present case, as discussed supra, the petitioner herein having obtained preliminary decree of partition in O.S.No.88 of 2017 dated 27.11.2017, did not initiate any steps seeking final decree proceedings. The said judgment and decree was passed relying on the written statement filed by his father, 3rd respondent herein admitting the claim of the petitioner herein/plaintiff therein. Thus, the petitioner herein is not vigilant in taking steps seeking final decree proceedings 6 (2020) 13 SCC 773 18 KL, J CRP No.1969 of 2023 in O.S.No.88 of 2017. Therefore, the said judgment and decree remained as a paper decree.
26. Whereas, respondents 1 and 2 herein have set up their claim in O.S.No.8 of 2018 basing on the agreement of sale dated 19.05.2016 executed by 3rd respondent/father of the petitioner herein. It is their specific contention that the 3rd respondent herein had acquired subject property out of confirmation of oral partition deed from his family members vide registered document No.8014 of 2014 dated 05.11.2014. He has offered to sell the subject property to them for a total sale consideration of Rs.80 lakhs and having received the said amount of Rs.80 lakhs, he has entered into the agreement of sale dated 19.05.2016 and in the presence of M.Sambasiva Rao and one K.Naveen Kumar, who are attestors to the said agreement of sale. Having received the said sale consideration, he has also delivered physical possession of the said property in favour of respondents 1 and 2. Thus, 3rd respondent, father of the petitioner herein, having entered into the said agreement of sale dated 19.05.2016 on receipt of Rs.80 lakhs towards sale consideration and putting respondents 1 and 2 in possession of the suit schedule property, filed written statement in O.S.No.88 of 2017 admitting the claim of the petitioner herein. 19
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27. It is apt to note that the said agreement of sale is dated 19.05.2016. whereas, the said suit O.S.No.88 of 2017 was filed by the petitioner herein in the year 2017 and the decree and judgment is dated 27.11.2017 which was passed relying on the written statement filed by the 3rd respondent admitting the claim of the petitioner herein. Thus, the written statement filed by 3rd respondent would be in the year 2017. i.e. later to the execution of the agreement of sale dated 19.05.2016.
28. At the cost of repetition, as discussed supra, admittedly, the petitioner herein is not a party to the said agreement of sale dated 19.05.2016 basing on which the respondents 1 and 2 have filed O.S.No.8 of 2018 seeking specific performance of the said agreement of sale.
29. It is the contention of the petitioner herein that he is having 1/3rd share in the suit schedule property, he came to know about the present suit O.S.No.8 of 2018 filed by respondents/plaintiffs falsely basing on agreement of sale in collusion with the 3rd respondent to get wrongful gain in order to defraud his legitimate share.
30. It is also apt to note that the 3rd respondent herein sole defendant in O.S.No.88 of 2018. He had filed counter contending that 20 KL, J CRP No.1969 of 2023 the petition averments and the counter are inconsistent. The petition filed under Order I Rule 10 of CPC is not maintainable. He never entered into the agreement of sale as narrated by them. Thus, 3rd respondent has denied the execution of the very agreement of sale dated 19.05.2016. The said fact will be decided by the trial Court in O.S.No.8 of 2018 during trial.
31. The petitioner herein who is not vigilant and who is not a party to the agreement of sale dated 19.05.2016, having obtained consent decree on 27.11.2017, cannot claim that he has interest over the suit schedule property and he is necessary and proper party to the same. He failed to show a fair semblance of title or interest over the suit schedule property. He has set up the said claim relying on oral partition dated 05.10.1998 followed by confirmation of the oral partition dated 17.01.2000. Whereas, respondents 1 and 2/plaintiffs are relying on oral partition dated 05.10.1998 confirmation of the oral partition deed obtained by the 3rd respondent from his family members vide registered document No.8014 of 2014 dated 05.11.2014 showing that there is a partition of joint family property. The said partition of the suit schedule properties among V.P.S.A. Velayutha Nadar and Company, Sundara Vathanan A.N.S., A.N.S.A. Eswari and 21 KL, J CRP No.1969 of 2023 A.N.S.S.Vadhana and the 3rd respondent herein. It is a registered partition. The said property is a joint family property and not ancestral property. As claimed by the petitioner herein. After partition of the property, 3rd respondent herein became the absolute owner. Considering the said fats only, the Court below vide impugned order dated 06.06.2023 dismissed the said application. It is a reasoned order and well founded and it does not require interference by this Court exercising its supervisory jurisdiction under Article 227 of the Constitution of India.
32. In view of the above discussion, this revision is liable to be dismissed and accordingly dismissed.
As a sequel thereto, miscellaneous applications, if any, pending in the Contempt Case stand closed.
________________________ JUSTICE K. LAKSHMAN Date:13.10.2023.
Note: L. R. Copy to be marked.
b/o. vvr