Andhra Pradesh High Court - Amravati

Code Of Civil Procedure vs District on 17 February, 2022

                   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

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.

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

2004 (3) ALD 548

(2005) 11 Supreme Court Cases 403

(2013) 9 Supreme Court Cases 642

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."