M/S.Dega Homes Represented By Its ... vs Dega Dayakar Reddy,
2022 Latest Caselaw 7222 AP

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        THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

             CIVIL REVISION PETITION No.4197 of 2017

O R D E R:

The Civil Revision Petition is filed by the petitioners under

Article 227 of Constitution of India against the orders passed by the

learned I Additional District Judge, Nellore, in I.A.No.356 of 2015 in

O.S.No.263 of 2014 wherein and whereby the learned trial Judge

dismissed petition filed by the petitioners to come on record as

defendants 3 and 4 in O.S.No.263 of 2014 filed by 1st

respondent/plaintiff in that suit.

2. The petitioners herein filed petition before trial Court under

Order 1 Rule 10 of Civil Procedure Code read with 151 of Civil

Procedure Code and Rule 28 of Civil Rules of Practice to implead

them as defendants 3 and 4 in the suit filed by 1st

respondent/plaintiff on the ground that they are one of the

partners in M/s.Dega Homes under a partnership deed dated

23.10.2004 and they also entered into an agreement of

development by receiving advance amount and thereafter the 2nd

defendant in the suit entered into lease agreement was paying

rents to them but the 2nd defendant failed to pay the rents

afterwards. They claimed that they have got interest in the subject

matter in a suit filed by the 1st respondent/plaintiff and they prays

to add them as defendants 3 and 4 in the suit. For which the 1st

respondent/plaintiff filed counter before trial Court that subject

matter in O.S.No.263 of 2014 and O.S.No.80 of 2014 are one and

the same wherein he filed petition to implead him as a defendant

in the suit, which was not objected by the petitioners herein and

the same was allowed but the present petitioners are not

necessary parties in the suit filed by him. He prays to dismiss the

petition.

3. After considering contentions raised by both sides, learned

trial Judge dismissed the petition filed by the petitioners by

observing that since the proposed parties have already filed a

comprehensive suit O.S.No.80 of 2014 and the same is pending

adjudication with regard to claiming rights in the lease hold

property and in O.S.No.263 of 2014 is already impleaded as

defendant in one of the defendants in O.S.No.80 of 2014, there is

no necessity to add the petitioners herein as defendants in the suit

in O.S.No.263 of 2014.

4. The learned counsel for the petitioners would submit that

the petition filed by the 1st respondent to implead him in the suit

filed by the petitioners in O.S.No.80 of 2014 on the same subject

matter, which was allowed and thereafter the 1st respondent

impleaded as one of the defendants in that suit when the

petitioners intended to come on record in a suit filed by the 1st

respondent on the same subject matter, which was not allowed by

the learned trial Judge. He further submits that learned trial Judge

failed to exercise discretion in favour of the petitioners, which

amounts to failure of justice, which has to be considered by this

Court by invoking Article 227 of Constitution of India. Learned

counsel also invited attention of this Court with regard to the

contents of the plaint averments in O.S.No.80 of 2014 and cause of

action on which the said suit is filed by the petitioners herein. He

prays to allow the revision petition.

5. Learned counsel Mr.Sravan, representing on behalf of

Mr.G.RameshBabu learned counsel for the 2nd respondent fairly

contended that the 2nd respondent not filed any counter before

trial Court but he would submits that they filed Transfer

O.P.No.555 of 2016 on the file of Principal District Judge, Nellore,

to transfer O.S.No.80 of 2014 pending on the file of VI Additional

District Judge, Nellore, to try along with O.S.No.263 of 2014

pending on the file of I Additional District Judge, Nellore, which

was allowed on 18.08.2017 by ordering transfer of O.S.No.80 of

2014 from VI Additional District Judge, Nellore to I Additional

District Judge, Nellore leaving the discretion to that Court to

decide as to whether both the suits can be tried jointly or

simultaneously. He prays to pass necessary Orders.

6. Now, the issue that emerges for consideration by this Court

is: "Whether the order under challenge is sustainable, tenable

and whether the same warrants any interference of this Court

under Article 227 of Constitution of India?"

POINT:

7. Before going to the merits of the case, it would be beneficial

to quote Order I Rule 10 CPC, which reads as under:

"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 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."

8. The general rule is that a plaintiff is the dominus litus and

may choose the persons against whom he wishes to litigate and

cannot be forced to sue a person against whom he does not seek

any relief. Hence a person, who is not a party, has no right to be

impleaded against the wishes of the plaintiff unless it is a

compulsion of the rule of law. But this general rule of the plaintiff

being the dominus litus is subject to the provisions of Order I Rule

10(2) of CPC. But the discretion of the Court under Order I Rule

10(2) CPC is limited. It is only if a party is a necessary or a proper

party that they can be directed by the Court to be joined in the

proceedings. If a person is not found to be a necessary or proper

party, the Court has no jurisdiction to order impleadment against

the wishes of the plaintiff. The Hon'ble Apex Court in KASTURI v.

IYYAMPERUMAL1(2005) 6 SSC 733 evolved two tests to be satisfied

for determining whether a person is a necessary party (1) There

must be a right to some relief against such party in respect of the

controversies involved in the proceedings, (2) No effective decree

can be passed in the absence of such party. Moreover, a person

whose object is to prosecute its own cause of action or who the

defendant wants to prosecute cannot be joined for merely that

reason.

9. In the present case, the petitioners herein and the 1st

respondent/plaintiff have admittedly filed separate suits claiming

arrears of rent from the 2nd respondent on different grounds. The

contention of the petitioners is that basing on partnership deed

(2005) 6 SCC 733

and inview of lease agreement with the 2ndrespondent, they are

also entitled to claim arrears of rent, which the 1st

respondent/plaintiff claimed from the same defendants in

O.S.No.263 of 2014 due to that they wanted to come on record as

one of the defendants. It is no doubt true that to avoid multiplicity

of litigation and to arrive just decision in the suits filed by both

sides petitioners may be proper parties in a suit filed by the 1st

respondent/plaintiff. But the present situation is that already the

1st respondent/plaintiff added as one of the defendants in suit filed

by the petitioners herein i.e., O.S.No.80 of 2014. It is not disputed

by learned counsel for the revision petitioner that R.2 in

O.S.No.263 of 2014 filed Transfer Petition, which was allowed by

learned Principal District Judge, Nellore. The Order passed by

learned Principal District Judge, Nellore in Transfer O.P.No.555 of

2016 placed before this Court by learned counsel for the 2nd

respondent shows that Transfer petition is allowed and O.S.No.80

of 2014, which was filed by the petitioners herein wherein the 1st

respondent/plaintiff in O.S.No.263 of 2014 already impleaded as a

party, the said suit is withdrawn and transferred to I Additional

District Judge, Nellore wherein O.S.No.263 of 2014 filed by the 1st

respondent/plaintiff is pending. As per information available to

this Court and even as per the contentions on both sides in both

suits trial has been commenced, which are coming up for adducing

further evidence. In view of adding of 1st respondent/plaintiff in

O.S.No.80 of 2014 as one of the defendants certainly learned trial

Judge will look into aspect of right of the petitioners herein and

also 1st respondent/plaintiff with regard to their claim against the

2nd respondent educational institutions. Therefore, instead of

impleading the petitioners herein as the defendants in O.S.No.263

of 2014 to protect interest of the both sides, it is just to order

simultaneously disposal of bothsuits by the same Court. In view of

1st respondent/plaintiff has already added as one of the defendants

in O.S.No.80 of 2014, this Court invoking the jurisdiction exercising

under Article 227 of Constitution of India being supervisory and not

appellate as there is no patent illegality in the Order under revision

no interference is called for except directing the trial Court i.e., I

Additional District Judge to the simultaneously disposal of

O.S.No.80 of 2014 and O.S.No.263 of 2014. This Court did not find

any illegality and irregularity in the orders passed by learned trial

Judge needs interference of this Court under Article 227 of

Constitution of India.

10. In the result, the Civil Revision Petition is dismissed. No

order as to costs. Consequently, miscellaneous petitions pending, if

any, shall stand closed. Learned trial Judge is hereby directed to

dispose of O.S.No.80 of 2014 and O.S.No.263 of 2014

simultaneously and shall pronounce Judgment in both the suits on

one and the same day to avoid any conflicting decisions. Learned

trial Judge is hereby directed to dispose of both the suits within a

period of six months from the date of receipt of Orders of this Court.

___________________________ JUSTICE BANDARU SYAMSUNDER Date:20.09.2022 chb

THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

C.R.P.No.4197 of 2017

Date :20.09.2022

chb