Telangana High Court
Kondapalli Jagadeesh Reddy vs Kondapalli Damodar Reddy on 16 March, 2023
Bench: P.Madhavi Devi
THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI
C.R.P.No. 2238 of 2022
ORDER:
This Civil Revision Petition is filed against the order of the
Principal District Judge, dated 26.08.2022 in I.A.No.135 of 2022
in O.S.No.63 of 2012. The petitioner herein filed I.A.No.135 of
2022 to implead himself as defendant No.6 in the suit.
2. Brief facts relevant to the filing of the present Civil
Revision Petition are that one K.Buchi Reddy had two sons by
name Venkat Reddy and Damoder Reddy. Venkat Reddy in turn
had two sons by name Jagadeesh Reddy and Sudheer Reddy.
While Damoder Reddy also had two sons by name Srinivas
Reddy and Raghuram Reddy. There was a partition of properties
between the Venkat Reddy and Damoder Reddy. According to
K.Damoder Reddy, as per the memorandum of past partition
dated 01.05.1985, the house property situated at Mahabubad,
fell to his share, but K.Sudheer Reddy, in collusion with other
defendants, created fictitious documents of sale. In view of the
same, K.Damoder Reddy filed a suit in O.S.No.60 of 2012
against K.Sudheer Reddy and others. The allegation was that
Sudheer Reddy/defendant No.1 has created fictitious
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documents of sale in favour of defendant No.2 and in turn
defendant No.2 has sold away the property to defendant Nos.3
and 4 and later in favour of defendant No.5. In view of the same,
K.Damoder Reddy filed a suit against the K.Sudheer
Reddy/defendant No.1 and subsequent purchasers of the
property as defendant Nos.2 to 5 and sought cancellation of the
sale deeds of the defendants and to declare the plaintiff as the
owner of the property and put him in possession of the suit
scheduled property.
3. The defendants filed written statements denying the
allegations of the plaintiff. Subsequently, the brother of
K.Sudheer Reddy filed suit O.S.No.169 of 2012 for partition and
separate possession of the property. He made K.Sudheer Reddy
as defendant No.1 and subsequent purchasers of the property
as defendants No.2 to 5. The defendants also filed their written
statements in O.S.No.169 of 2012. Thereafter, the suit was
dismissed for default. The plaintiff, who is the petitioner in the
Civil Revision Petition, filed I.A.No.377 of 2022 for restoration of
the suit and the same was pending consideration of the Court.
In the meantime, in suit i.e., O.S.No.60 of 2012, the evidence of
Pws1 to 4 has already been completed and was coming for
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defendant's evidence. At such time, the petitioner filed
I.A.No.135 of 2022, for impleading himself as defendant No.6 in
O.S.No.60 of 2012. In the meantime, the plaintiff had died and
his family members have been impleaded as co-plaintiffs. The
plaintiffs opposed the implead petition and the defendants No.6
to 9 also opposed the said application.
4. The Principal District Judge at Yadadri Bhongir, after
considering all the material on record, dismissed the I.A.,
against which the present Civil Revision Petition is filed.
5. The learned counsel for the petitioner, while reiterating
the submissions made in the affidavits filed in support of
I.A.No.135 of 2022, submitted that the petitioner has filed the
suit O.S.No. 169 of 2012 for partition against his brother, who
is the defendant No.1 in suit O.S.No.60 of 2012 and since the
property included in the partition suit is the same property
which is also involved in O.S.No.60 of 2012, the petitioner is the
proper and necessary party to the suit O.S.No.60 of 2012 and
therefore, he has to be impleaded as defendants No.6 in the
suit. In support of his contention, he placed reliance upon the
following three judgments:
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1. Sumatibai and Others Vs. Paras Finance Co.1;
2. Mumbai International Airport Private Limited Vs.
Regency Convention Centre and Hotels Private Limited and
Others2;
3. Pankajbhai Rameshbhai Zalavadiya Vs. Jethabhai
Kalabhai Zalavadiya3.
6. Learned counsel for the respondents however, opposed
the said contentions and submitted that the plaintiff No.1 in
O.S.No.60 of 2012 and the father of the petitioner herein were
brothers and there was a partition amongst them long ago and
the petitioner had also filed a suit for partition only against
defendant No.1, which clearly goes to show that the partition
between the plaintiff in O.S.No.60 of 2012 and the father of the
plaintiff in O.S.No.169 of 2012 has already been given effect to.
It is submitted that the Principal District Judge has considered
the contentions of both the parties and has rightly held that the
implead petition has been filed at the fag end of trial of the suit
only to drag on the matter and without following of his
application for restoration of the partition suit. Therefore, he
1 (2007) 10 SCC 82
2 (2010) 7 SCC 417
3 (2007) 9 SCC 700
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supported the order of the lower Court and prayed for dismissal
of the Civil Revision Petition.
7. Having regard to the rival contentions and the material on
record, this Court finds that the plaintiffs in O.S.No.60 of 2012
and also defendant No.1 in O.S.No.60 of 2012 are related to
each other. The plaintiffs as well as the defendant No.1 and also
the petitioner herein are all claiming to be the owners of the
property in house No. 4-3-79 at Mahabubad. Merely, because
the petitioner has filed an application for partition against his
brother in O.S.No.169 of 2012 i.e., after the respondent No.1
herein has filed O.S.No.60 of 2012, he would not get a right or
title over the property. As rightly held by the Principal District
Judge, the petitioner was well aware of the dismissal of the suit
and has filed an application for restoration after a period of
nearly four years and has filed an application for impleadment
in O.S.No.60 of 2012 only at the fag end of trial. The
contentions of the petitioner that he was not aware of the
proceeding in O.S.No.60 of 2012, is not acceptable.
8. In the judgments relied upon by the petitioner in Sumti
Bhai and Others (cited supra), the Hon'ble Supreme Court has
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clearly held that every judgment is governed and qualified by
the particular facts of the case and therefore, precautions in
derivation of the same, is reiterated. In the case of Mumbai
International Airport (cited supra), the Hon'ble Supreme Court
has held that the discretion of Court to add a person as party is
limited to the persons found to be necessary party or proper
party and such discretion is judicial discretion and has to be
exercised according to the reasonableness and fairness and not
according to whims and caprice. In the case of the Pankaj Bhai
Ramesh Bhai Zalavadiya (cited supra), the Hon'ble Supreme
Court has reiterated the above principle that only necessary and
proper parties are to be made parties to the suit. The Court has
held that 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 Court and if a necessary party is
not impleaded, the suit itself is liable to be dismissed, and 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 adequately adjudicate on all matters of dispute in
the suit, though he need not be a person, in favour or whom
against the decree is to be made. It was further held that if a
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person is not found to be proper or necessary party, the Court
has no jurisdiction to implead him against the wishes of the
plaintiff. In the present case, it is found that the suit O.S.No.60
of 2012 is filed for cancellation of sale deeds and consequently
for declaration of title. As the petitioner was not a party to any
of the alleged sale documents, he is not a necessary party nor is
he a proper party to the suit. If the defendant No.1 succeeded,
then the petitioner would have a right to proceed against the
defendant No.1, for his right in the property in the partition suit
i.e., in O.S.No.169 of 2012. Therefore, this Court does not find
any reason to interfere with the order of the Principal District
Judge in I.A.No.135 of 2022.
9. Accordingly, this Civil Revision Petition is dismissed.
There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this Civil
Revision Petition, shall stand closed.
____________________________
JUSTICE P.MADHAVI DEVI
Date: 16.03.2023
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CRP.No.2238 of 2022
THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI
C.R.P.No. 2238 of 2022
Date: 16.03.2023
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