R Venkataiah vs Kotha Krishna Murthy Another
2023 Latest Caselaw 5091 AP

       HON'BLE DR. JUSTICE K. MANMADHA RAO

           CIVIL REVISION PETITION No.4486 2016
ORDER:

The present civil revision petition is preferred by the

petitioner aggrieved by the order dated 23.08.2016 passed

in I.A.No.1040 of 2016 in O.S.No.80 of 2014 on the file of

the I Additional District Judge, Guntur (for short "the trial

Court").

2. The impugned application has been filed by the

petitioner before the trial Court under Order VI Rule 17 of

CPC for impleading the petitioner as the second defendant

in the suit.

3. Brief facts of the case are that the petitioner herein

is third party and the 2nd respondent is his younger brother

and the suit is filed by the 1st respondent against the 2nd

respondent for specific performance of contract of sale

purported to have been executed by the 2nd respondent in

favour of the 1st respondent. The 2nd respondent filed a suit

against the petitioner herein for partition in O.S No.118 of

2002 on the file of IV additional District Judge, Guntur and

the said suit was decreed and aggrieved by the same, the

petitioner herein filed an appeal before this Court vide AS

No.667 of 2009 and the same is pending. The 2nd

respondent colluded with the 1st respondent and created a

nominal agreement of sale and recently the petitioner came

to know about the present suit. Hence the petitioner filed

the impugned application seeking to implead the petitioner

as 2nd defendant. The same was allowed by the trial Court

vide order dated 23.08.2016. Challenging the same, the

present civil revision petition came to be filed.

4. Heard Sri D. Krishna Murthy, learned counsel

appearing for the petitioner and Sri N. Subba Rao, learned

counsel appearing for the respondents.

5. On hearing, learned counsel for the petitioner

submits that the trial Court has acted illegally and with

material irregularity in the exercise of jurisdiction in

allowing the application under Order 1 Rule 10 CPC

belatedly when the suit is posted for trial. He further

submits that the trial Court having held that the 2nd

respondent being a third party to the suit agreement of sale

and that he is not a necessary party, ought not to have

allowed the application to implead the 2nd respondent. He

further submits that the trial Court failed to see that the 2nd

respondent did not dispute the right of the 1st respondent to

sell his half share/suit schedule property and erroneously

allowed the application to implead the 2nd respondent. He

further submits that the trial Court should have seen that

unless the 2nd respondent is a necessary and proper party to

the suit he cannot be allowed to come on record and having

regard to the fact that the 2nd respondent is neither a

necessary nor proper party to the suit as he is no way

concerned with the suit schedule property and ought to

have dismissed the application. Therefore, learned counsel

requests this Court to pass appropriate orders by setting

aside the impugned order.

6. To support his contentions, learned counsel for the

petitioner has placed reliance on the judgment of Hon'ble

Supreme Court reported in Kasturi versus Iyyamperumal

and others1, wherein the Apex Court held that the person

who claims independent title and possession adversely to

title of vendor is not a necessary party, since an effective

decree can be passed in his absence and no relief can be

(2005) 6 Supreme Court Cases 733

claimed against such party. There must be a right to some

relief against such party in respect of controversies involved

in the proceedings, or, no effective decree can be passed in

his absence.

7. The facts of the present case are not applicable to

the facts of the above case.

8. Per contra, learned counsel for the respondents

submits that the trial Court rightly allowed the application

in proper manner. He submits that the schedule property is

a joint property of the 2nd respondent herein and the

petitioner herein and the 1st respondent who is his brother

and but without impleaidng the 2nd respondent the present

suit is filed by the petitioner herein for specific performance

so there is need for impleading the 2nd respondent as 2nd

defendant.

9. To support his contentions, learned counsel for the

respondents has relied upon a decision of Hon'ble Supreme

Court reported in Baluram versus P.Chellathangam and

others2, wherein it was held that :

Civil Appeal Nos.10940-10941 of 2014, dt. 10.12.2014

"9. Referring to suits for specific performance, this Court in Kasturi [(2005) 6 SCC 733], held that the following persons are to be considered as necessary parties: (i) the parties to the contract which is sought to be enforced or their legal representatives; (ii) a transferee of the property which is the subject-matter of the contract. This Court also explained that a person who has a direct interest in the subject-matter of the suit for specific performance of an agreement of sale may be impleaded as a proper party on his application under Order 1 Rule 10 CPC. This Court concluded that a purchaser of the suit property subsequent to the suit agreement would be a necessary party as he would be affected if he had purchased it with or without notice of the contract, but a person who claims a title adverse to that of the defendant vendor will not be a necessary party.

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22. Let us consider the scope and ambit of Order 1 Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice."

10. Admittedly, the suit was filed by the petitioner

herein against the 1st respondent herein for specific

performance of agreement of sale dated 02.01.2013 or

alternatively to refund the advance amount of

Rs.12,64,725/-. A perusal of the suit agreement, it clearly

establishes that the agreement is executed in respect of half

of the share of the petitioner herein in a total extent of 570

Sq yds of site along with the houses. As per the terms of the

said agreement, it is also clear that the executants of the

said agreement and his brother got the property under the

will executed by their father Kotha Baladasu. This Court

further observed that, there is no dispute with regard to the

suit filed for partition against the 2nd respondent herein in

O.S No.118 of 2002 on the file of the IV Additional District

Court, Guntur and the same was already decreed and

thereafter an appeal was also preferred before this Court

vide A.S No.667 of 2009 and the same is pending.

11. Generally in a suit for specific performance there

is no need for adding any person who is a third party to the

agreement. But the in the present suit the plaintiff

purchased only half share in the schedule property from

the defendant whereas the 2nd respondent herein is having

right in the remaining half share. So, in order to avoid

complication and further litigation the 2nd respondent has

filed the impugned application for impleading him as 2 nd

defendant in the suit.

12. The scope and ambit of Order 1 Rule 10(2) CPC

regarding striking out or adding parties. The said sub-rule is

not about the right of a non-party to be impleaded as a

party, but about the judicial discretion of the court to strike

out or add parties at any stage of a proceeding. The

discretion under the sub-rule can be exercised either suo

motu or on the application of the plaintiff or the defendant,

or on an application of a person who is not a party to the

suit. The court can strike out any party who is improperly

joined. The court can add anyone as a plaintiff or as a

defendant if it finds that he is a necessary party or proper

party.

13. In view of the foregoing discussion, this Court

found no illegality or perversity in the order passed by the

trial Court warrants no interference. Finding no merit in the

instant civil revision petition and as devoid of merits, the

same is liable to be dismissed.

14. Accordingly the Civil Revision Petition is

dismissed. No order as to costs.

15. As a sequel, all the pending miscellaneous

applications shall stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date : 18 -10-2023
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      HON'BLE DR. JUSTICE K. MANMADHA RAO




       CIVIL REVISION PETITION No.4486 of 2016


                Date :    18.10.2023




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