Kolli Sita Rama Swamy Naidu vs T Padma Rao Padma,
2022 Latest Caselaw 7144 AP

         HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI

              CIVIL REVISION PETITION No.728 OF 2021

Between:
Kolli Sita Rama Swamy Naidu, S/o.late Rama Naidu,
Aged 59 years, Administrative Officer,
Life Insurance Corporation of India,
Presently working in Senior Divisional Manager's Office,
Jeevan Prakash Building, Prakash Marg,
Visakhapatnam-530004,
Residing at Quarter No.B1/1, LIC Quarters,
Karakachettu Road, Peda Waltair, Visakhapatnam.        .... Petitioner

Versus

T.Padma Rao @ Padma, W/o.Damodara Rao,
Aged 55 years, Employee in LIC of India,
D.No.23/1933, Behind Kali Mandir, Raipur,
Chattisgarh, Chattisgarh State & others.

                                                    .... Respondents

DATE OF ORDER PRONOUNCED: 19-09-2022


THE HON'BLE SRI JUSTICE NINALA JAYASURYA

1. Whether Reporters of Local newspapers                   Yes/No
   may be allowed to see the Judgments?


2. Whether the copies of judgment may be                   Yes/No
   Marked to Law Reporters/Journals.


3. Whether Their ladyship/Lordship wish                    Yes/No
   to see the fair copy of the Judgment?




                                               _________________________
                                                NAINALA JAYASURYA, J
                                        2                     NJS,J
                                                       CRP_728_2021




*THE HON'BLE SRI JUSTICE NINALA JAYASURYA

             + CIVIL REVISION PETITION No.728 of 2021

                              %Date : 19-09-2022

# Kolli Sita Rama Swamy Naidu                 ---    Petitioner

                  and

$ T.Padma Rao @ Padma and others
                                               ---   Respondents


! Counsel for the Petitioner          : Mr.M.Bala Subrahmanyam

^ Counsel for the 1st Respondent : Mr.S.V.S.S.Siva Ram, assisted
                                   by Ms.K.S.N.Manjusha

< GIST : --



> HEAD NOTE : --



? Cases referred :

1) (2005) 6 Supreme Court Cases 733
2) (2010) 8 Supreme Court Cases 329
                                      3                           NJS,J
                                                           CRP_728_2021




IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATHI

       HONOURABLE SRI JUSTICE NINALA JAYASURYA

           CIVIL REVISION PETITION No.728 of 2021

Kolli Sita Rama Swamy Naidu                                    ....Petitioner

      Versus

1.T.Padma Rao @ Padma and Others                           ...Respondents

Counsel for the petitioner        : Mr.M.Bala Subrahmanyam

Counsel for the 1st respondent : Mr. S.V.S.S. Siva Ram, assisted by
                                 Ms.K.S.N.Manjusha
ORDER:

The present Revision Petition is filed against an Order dated

07.01.2020 In I.A.No.890 of 2019 in O.S.No.875 of 2014 on the file of

the Principal Senior Civil Judge, Visakhapatnam.

2. Heard Mr.M.Bala Subrahmanyam, learned counsel for the

petitioner/third party and Mr.S.V.S.S. Siva Ram, assisted by

Ms.K.S.N.Majusha, learned counsel appearing for the 1st

respondent/plaintiff. Respondents 2 to 5 are shown as not necessary

parties to the C.R.P., as per the endorsement made in the Cause Title.

3. The 1st respondent herein filed a suit in O.S.No.875 of 2014

referred to above against the 2nd and 3rd respondents in the present

Civil Revision Petition. It is her case that one Kolli Rama Naidu, father 4 NJS,J CRP_728_2021

of the respondents 1 to 3 and the petitioner herein during his life time

purchased an extent of 200 Sq. Yards in Plot No.14-A and another

extent of 100 Sq. Yards in Plot No.14 through Registered Sale Deeds

dated 15.10.1975 and 17.12.1977 respectively. He had constructed two

portions of R.C.C. Building over the said two sites and was in peaceful

possession and enjoyment of the said house till his death. It is her

further case that during his life time, he executed a Registered Will on

09.05.2001 in respect of the said property and another property

situated at Gorapalli, Santhapalem Village, Pendurthi Mandalam of

Visakhapatnam District bequeathing the same to her and the 2nd

respondent equally. In the plaint, it was further averred that as per the

Will, Northern portion fell to the share of the plaintiff/1st respondent,

Southern portion fell to the share of the 1st defendant/2nd respondent

and his 1/5th share in the joint family property out of Ac.0.99 cents

situated in Gorapalli devolved to the plaintiff/1st respondent and 1st

defendant/2nd respondent equally. After the death of their father on

15.09.2002, the schedule property was devolved on the

plaintiff/respondent No.1 and 1st defendant/2nd respondent and she

leased out Northern side portion to the 2nd defendant/3rd respondent

herein. It was also averred that the 3rd respondent paid rents upto

April, 2011 and committed default, which lead to issuance of legal

notice on 01.02.2012 calling upon the 3rd respondent to vacate and 5 NJS,J CRP_728_2021

handover the possession to the plaintiff/1st respondent. A reply was

issued thereto on 11.02.2012 to the effect that the 3rd respondent is

paying rents regularly to the 2nd respondent, who inducted her into

possession of the property without any default and there is no landlord

and tenant relationship between the plaintiff/1st respondent and

defendant No.2/respondent No.3. Under the said circumstances, the 1st

respondent herein filed a suit for partition of plaint schedule property

into two equal shares and allot one share to the plaintiff/1st respondent

by converting joint possession into separate possession and mesne

profits from May, 2011 till the date of handing over the possession to

the 1st respondent.

4. In the suit, the defendants i.e., 2nd and 3rd respondents herein

filed a written statement, wherein execution of the said Registered Will

on 09.05.2001 was denied. During the pendency of the said suit, the

petitioner herein along with his two sons filed the above mentioned I.A

under Order 1, Rule 10 of Code of Civil Procedure (for short 'C.P.C.')

R/w Section 151 of CPC seeking to permit them to be impleaded as

defendants 3, 4 and 5 in the said suit, contending inter alia that the

suit is not maintainable without impleading them as parties. The 1st

respondent/plaintiff filed a counter opposing the said application. By an

Order dated 07.01.2020, the learned Trial Court dismissed the 6 NJS,J CRP_728_2021

application, aggrieved by which, the present Revision Petition has been

preferred.

5. The learned counsel for the petitioner inter alia submits that the

Order of the learned Trial Court is unsustainable, as it failed to exercise

the jurisdiction vested in it, by appreciating the facts and circumstances

of the case in a proper perspective. He submits that there is no dispute

that the petitioner/3rd party is the brother of respondents 1 to 3 herein.

6. It is his contention that in a suit for partition, all the family

members are required to be added as parties, more particularly, in the

present case, as the execution of Will is disputed, all the members have

share in the property. He submits that the learned Trial Court erred in

dismissing the I.A in question on the assumption that the proposed

parties had not denied the execution of Will, that it is the self-acquired

property of the executant of the Will and therefore the proposed

parties are not necessary parties. He submits that in the light of the

specific defence taken in the written statement filed by the

defendants/sisters, the learned Trial Court should have allowed the

application filed by the petitioner herein and afforded an opportunity to

file his written statement for proper adjudication of the matter. Making

the above submissions, the learned counsel urges that the order under 7 NJS,J CRP_728_2021

challenge is liable to be interfered with by this Court in exercise of

powers under Article 227 of the Constitution of India.

7. The learned counsel for the 1st respondent/plaintiff on the other

hand strenuously contends that the plaintiff being the ' dominus litis'

filed the suit against proper parties, seeking appropriate relief in the

light of the specific case as set out in the plaint. While stating that the

petitioner has not disputed the execution of Will which was registered

in the year 2001 and acted upon in the year 2002 after the death of

the executant, the learned counsel submits that no claim has been

made by the petitioner for the last 20 years. The learned counsel

submits that the petitioner has no 'locus standi' to seek his

impleadment as a party to the suit, as he has no share in the subject

matter property, which was bequeathed to the 1st and 2nd respondents

herein and further that the plaintiff/1st respondent cannot be insisted

upon to implead a party against whom no relief is claimed. While

pleading that the petitioner had not satisfied the test for adding him as

a necessary party to the suit in terms of Order 1, Rule 10 of CPC, the

learned counsel contends that if the petitioner is impleaded as party to

the suit, its very nature would be changed, which is not permissible.

8. The learned counsel further submits that in exercise of powers

under Article 227 of the Constitution of India, this Court can interfere in 8 NJS,J CRP_728_2021

the matter, in the event the Order of the Trial Court is perverse or

suffers from material irregularity. Stating that there are no such

grounds warranting interference in the Order under challenge, the

learned counsel would seek dismissal of the Revision Petition.

9. In support of the contentions, learned counsel placed reliance on

the decisions of the Hon'ble Supreme Court in Kasturi vs.

Iyyamperumal and Others1, Shalini Shyam Shetty and Another

vs. Rajendra Shankar Patil2 and a decision of High Court of Madras

(Madhurai Bench) in CRP PD(MD)Nos.1664 of 2012 dated 08.11.2019.

10. On a consideration of the rival submissions and the material on

record, the point that falls for consideration by this Court is:

"Whether the Order under Revision is liable to be interfered with, in the facts and circumstances of the case?"

11. Before adjudicating the point in question, it may be appropriate

to note that in the affidavit filed in support of I.A.No.890 of 2019

seeking to implead the petitioner herein as defendant No.3 in the suit,

there is no averment with regard to nature of the suit schedule

properties nor the execution of Registered Will by the father of

petitioner in favour of his sisters was disputed, except that in a

Partition suit, all the family members should be impleaded and in the 1 (2005) 6 Supreme Court Cases 733 2 (2010) 8 Supreme Court Cases 329 9 NJS,J CRP_728_2021

presence of all the members, the matter has to be decided, but not in

their absence. A plea was also taken that the petitioner is interested to

implead himself along with his son in the suit. Except that, no specific

claim is made that the suit schedule properties are joint family

properties and the petitioner along with his sons are entitled for a

share in the same. Be that as it may.

12. Order I, Rule 10 of Code of Civil Procedure, which deals with

impleadment of parties to a suit, which is relevant in the present

context, may be extracted for ready reference:

"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 through a bone 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 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 10 NJS,J CRP_728_2021

completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3).................

(4).................

(5).................

13. From a reading of the above provision, more particularly, Order

1, Rule 10(2) of Code of Civil Procedure, it is clear that the Court is

empowered to strike out the name of any party improperly joined as a

plaintiff or defendant and also add, a person who ought to have been

joined as a plaintiff or defendant or whose presence before the Court

may be necessary to enable it to effectually and completely adjudicate

and settle all the questions involved in the suit.

14. In Kasturi's case referred to above, on which reliance is placed

by the learned counsel for the 1st respondent, the Hon'ble Supreme

Court was dealing with a case of a suit for Specific Performance of

Contract for sale of property and in that context, the Hon'ble Apex

Court formulated a question as to whether in a suit for Specific

Performance of contract for sale of property instituted by a purchaser

against the vendor, a stranger or a third party to the contract, claiming

to have an independent title and possession over the contracted

property, is entitled to be added as a party-defendant in the said suit?

Referring to Order I, Rule 10 of C.P.C., the Hon'ble Supreme Court,

inter alia, opined that two tests have to be satisfied for determining the 11 NJS,J CRP_728_2021

question, who is a necessary party viz., 1). there must be a right to

some relief against such party in respect of controversies involved in

the proceedings. 2). no effective decree can be passed in the absence

of such party.

15. In that context, the Hon'ble Supreme Court further opined that

the question has to be decided keeping in mind the "scope of the suit"

and in the facts and circumstances of the said case held that if the

person seeking addition is added in such a suit, the scope of the suit

for specific performance would be enlarged and it would be practically

converted into a suit for title. Further at para No.13, the Hon'ble

Supreme Court held as follows:

"13. From the aforesaid discussion, it is pellucid that necessary parties are those persons in whose absence no decree can be passed by the court or that there must be a right to some relief against some party in respect of the controversy involved in the proceedings and proper parties are those whose presence before the court would be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person."

16. The Hon'ble Supreme Court ultimately answered the question

holding that the stranger to the contract, making a claim independent

and adverse to the title is neither necessary nor proper party, and as 12 NJS,J CRP_728_2021

such not entitled to join as party-defendants in the suit for specific

performance of contract for sale.

17. In the light of the above decision of the Hon'ble Supreme Court,

it is to be seen as to whether the parties sought to be impleaded in the

present case i.e., the petitioner(and his sons) have a right to some

relief in the suit and no effective decree can be passed in their

absence. As seen from the plaint, the 1st respondent/plaintiff is not

claiming any relief with regard to joint family properties, but praying for

conversion of joint possession into separate possession by partition of

suit schedule properties into two equal shares and allotment of one

such share, the right and interest of which are claimed on the basis of

a registered Will dated 09.05.2001 stated to have been executed by

her father in favour of the 1st respondent/plaintiff and the 1st

defendant in the suit. Therefore, the suit in question is not a partition

suit 'per se', wherein ordinarily all the members of the family, who have

interest and claim over the joint family properties are required to be

impleaded. Further, as noted earlier, except stating that in a partition

suit, all the members should be impleaded, the petitioner had not laid

any claim asserting that the properties in question are joint family

properties and he has a right in respect of the same. In fact, as

observed by the Learned Trial Judge, there is no denial that the 13 NJS,J CRP_728_2021

properties are not self acquired properties of the petitioner's father,

much less, denial of execution of the Registered Will dated 09.05.2001.

Further, the suit is instituted by the 1st respondent/plaintiff on the

strength of a Registered Will dated 09.05.2001, inter alia, on the

premise that the suit schedule properties were bequeathed in favour of

the 1st respondent/plaintiff and the 2nd respondent/1st defendant. To

secure relief in the suit, the 1st respondent/plaintiff has to establish the

execution of Registered Will beyond all reasonable doubts in terms of

Law and can succeed only if the Court comes to a conclusion that the

Will is genuine. Therefore, a decree can be passed, even in the

absence of the petitioner and his sons.

18. On applying the twin tests, in terms of the judgment of Hon'ble

Supreme Court referred to above, this Court has no hesitation to hold

that the petitioner failed to satisfy the same. As contended by the

learned counsel for the 1st respondent, the plaintiff is 'dominus litis' and

cannot be forced to join parties against whom no relief is sought for.

Though, there is no dispute that in a partition suit, all the members

should be impleaded, the said proposition is not applicable to the facts

of the case, more particularly, in the light of the relief sought for by the

1st respondent/plaintiff. Impleadment of parties, as rightly contended 14 NJS,J CRP_728_2021

by the learned counsel for the 1st respondent/plaintiff would enlarge

the scope and change the nature of the suit.

19. Considering the matter in its entirety, this Court is of the

considered view that for the effective adjudication of the controversies

involved in the matter, impleadment of the petitioners and others as

sought for, is not necessary. In view of the conclusions arrived at

supra, this Court finds no reason to interfere with the well considered

Order under challenge.

20. Accordingly, the Civil Revision Petition is dismissed. No costs.

As a sequel, miscellaneous applications, if any, pending shall

stand closed.

__________________ NINALA JAYASURYA, J Date: 19.09.2022 Note: L.R.Copy be marked.

B/o.

      BLV
                                15                       NJS,J
                                                 CRP_728_2021



        THE HON'BLE SRI JUSTICE NINALA JAYASURYA




             Civil Revision Petition No.728 of 2021
                        Date: 19.09.2022




Note: L.R.Copy be marked.
      B/o.
       16          NJS,J
           CRP_728_2021



BLV