Telangana High Court
Gandhi Ajith vs Godavarthi Nageswara Rao on 13 October, 2023
Bench: K.Lakshman
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT: HYDERABAD
CORAM:
* THE HON'BLE SRI JUSTICE K. LAKSHMAN
+ CIVIL REVISION PETITION No. 1969 OF 2023
% Delivered on:13.10.2023
Between:
# Gandhi Ajith, ...... Petitioner
And
$ Godavarthi Nageswara Rao
and others, .............respondents
! For Petitioner : Sri Kadaru Prabhakar Rao
Ld. Counsel,
^ For Respondents : Sri Madiraju Prabhakar Rao,
Ld. Counsel
< Gist
:
> Head Note
:
? Cases Referred :
1. (2005) 6 SCC 733
2.
(2006) 5 SCC 532
3.
(2007) 10 SCC 82
4.
2022 Live Law (SC) 802
5. (2010) 7 SCC 417
6. (2020) 13 SCC 773
2
KL, J
CRP No.1969 of 2023
HON'BLE SRI JUSTICE K. LAKSHMAN
CIVIL REVISION PETITION No.1969 OF 2023
ORDER:
Heard Mr. Kadaru Prabhakar Rao, learned counsel for the
petitioner and Mr. Madiraju Prabhakar Rao, learned counsel for
respondent No.1 and 2. According to learned counsel for the
petitioner, respondent No.3 is not necessary party to the present
revision.
2. This revision is filed under Article - 227 of the Constitution
of India challenging the order dated 06.06.2023 in I.A. No.1 of 2023
in O.S. No.8 of 2018 passed by I Additional District Judge,
Khammam, dismissing the petition filed under Order - I, Rule 10 (2)
of C.P.C.
3. Respondent Nos.1 and 2 herein - Plaintiffs filed a suit vide
O.S. No.8 of 2018 against respondent No.3 - defendant for specific
performance of contract based on the agreement of sale dated
19.05.2016 in respect of suit schedule property bearing Municipal
House No.4-8-4 Part, 4-8-4/1/2 Part and 4-8-4/1/2A part along with its
place measuring 2705 square yards with constructed area of RCC roof
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CRP No.1969 of 2023
measuring 7504.83 square feet and GI sheet roof measuring to an
extent of 194.92 square feet vide plot Nos.4 Part, 5 and 6 in and out of
Survey No.218 of Prakashnagar, Khammam Municipal Corporation,
Khammam City and District.
4. During pendency of the said suit, the petitioner herein had
filed a petition vide I.A. No.1 of 2023 under Order - I, Rule - 10 (2) of
the Code of Civil Procedure, 1908, to implead him in the said suit as
defendant No.2 on the following grounds:-
i) Respondent No.3 herein is his father;
ii) He has filed a suit for partition vide O.S. No.88 of 2017
against respondent No.3 herein - sole defendant and his
brother, namely Gandhi Aravind claiming 1/3rd share in
the suit schedule property in O.S. No.88 of 2017 on the
file of Judge, Family Court - cum - IV Additional District
Judge, Khammam;
iii) The said suit O.S. No.88 of 2017 was decreed vide
judgment and decree dated 27.11.2017. A preliminary
decree was passed for partition of the suit schedule
properties therein into three (03) equal shares and
allotting one such share to the petitioner herein;
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CRP No.1969 of 2023
iv) 1/3rd share of the petitioner herein is the part and parcel
of the suit schedule property in O.S. No.8 of 2018;
v) The plaintiffs herein have filed the suit in O.S. No.8 of
2018 in collusion with respondent No.3 herein in order to
defraud his legitimate share;
vi) Agreement of sale dated 19.05.2016 is created for the
purpose of filing O.S.No.8 of 2018; and
vii) In view of the above, the petitioner herein is just and
necessary party to the suit in O.S.No.8 of 2018.
5. Respondent Nos.1 and 2 filed their counter refuting the relief
by contending as under:
i) They filed the subject suit basing on the agreement of
sale 19.05.2016;
ii) Respondent No.3 acquired the suit schedule property out
of confirmation of oral partition deed from his family
members vide register document bearing No.8014 of
2014, dated 05.11.2014;
iii) Out of family necessities, respondent No.3 herein - sole
defendant approached respondent Nos.1 and 2 and
offered to alienate the suit schedule property for a lump
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CRP No.1969 of 2023
sum sale consideration of Rs.80.00 lakhs and accepting
the said offer, the plaintiffs have paid the entire sale
consideration amount to the sole defendant on the date of
entering into the said agreement of sale at the ratio of
30:70 in the presence of attestors, namely Mr. M. Samba
Shiva Rao and Mr.K. Naveen Kumar;
iv) The sole defendant delivered the possession of the suit
schedule property in favour of the plaintiffs and agreed to
execute a registered sale deed in their name;
v) Since the sole defendant failed to execute the register sale
deed, they filed the subject suit after issuing a legal
notice;
vi) Plaintiff No.1 was examined as PW.1 and Exs.A1 to A9
were marked and when the suit was coming up for further
evidence on behalf of plaintiffs, the petitioner herein, son
of sole defendant filed the present petition to implead him
as defendant No.2;
vii) Since the sole defendant is the absolute owner of the suit
schedule property, the petitioner herein is nothing to do
KL, J
CRP No.1969 of 2023
with the said property and, therefore, he is not a
necessary party to the subject suit; and
viii) The petitioner herein in collusion with his father and
brother filed the suit in O.S. No.88 of 2017 only after
entering into the agreement of sale dated 19.05.2016 and,
therefore, the result of the said suit is not binding upon
the subject suit as there was no final decree.
6. Vide order dated 06.06.2023, the Court below dismissed the
said petition on the following grounds:
i) The decree passed in partition suit (O.S.No.88 of 2017) filed by
the petitioner herein is an ex parte decree;
ii) According to the sole defendant, the ex parte decree was passed
on 27.11.2017, whereas the subject suit was filed on
18.01.2018;
iii) Since 2018 the petitioner kept quiet till filing the present
petition;
iv) The sole defendant had acquired the suit schedule property by
virtue of a registered partition deed bearing document No.8014
of 2014 and the said property is only a joint family property
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CRP No.1969 of 2023
but not ancestral property. Thus, the alleged partition is not
valid under the said document.
v) The decree passed in O.S.No.88 of 2017 is only a preliminary
decree, but not a final decree;
vi) Possession of the suit schedule property was already delivered
to the plaintiffs;
vii) The petitioner did not assign any reason for impleading him as
defendant No.2; and
viii) In the said circumstances, the petitioner is not a necessary party
to the subject suit.
7. Sri Kadaru Prabhakar Rao, learned counsel for the petitioner
would contend that the trial Court dismissed I.A.No.1 of 2023 in
O.S.No.8 of 2018, filed by the petitioner seeking to implead him as
defendant No.2 without considering that he has interest over the
subject property, without considering the decree passed in O.S.No.88
of 2017 and that respondents 1 and 2 have filed O.S.No.8 of 2018
against 3rd respondent, his father. The impugned order is contrary to
Order I Rule 10 of CPC and also principle laid down by this Court and
the Apex Court.
KL, J
CRP No.1969 of 2023
8. Whereas, Sri Madiraju Prabhakar Rao, learned counsel for
the respondent Nos.1 and 2/plaintiffs would submit that the trial
Court, on consideration of the scope of Order I Rule 10 of CPC and
also partition of joint family property vide document bearing
No.8014 of 2014, dismissed the present application. There is no error
in it. The petitioner herein filed the present revision only to drag on
the proceedings in O.S.No.8 of 2018.
FINDINGS OF THE COURT:-
9. As discussed supra, respondent Nos.1 and 2 have filed a suit
vide O.S.No.8 of 2018 against 3rd respondent herein for specific
performance of agreement of sale dated 19.05.2016 in respect of suit
schedule properties mentioned therein. Admittedly, the petitioner
herein is not a party to the said agreement of sale and thus, he is not a
party to the contract between the respondents 1 and 2 and the 3rd
respondent. However, he is the son of 3rd respondent. He filed a suit
vide O.S.No.88 of 2017 against the 3rd respondent-his father and his
brother for partition and separate possession of the suit schedule
property therein.
10. In O.S.No.88 of 2017, the petitioner herein contended that
they belong to Nadar community governed by Hindu Mithakshara
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CRP No.1969 of 2023
School. Their family hails from Virudunagar Town, Tamilnadu State.
He originally belongs to business family of Nadar community.
Initially, in the year 1998, V.P.S.Ayyam Perumal Nadar and his sons
did various businesses. Due to lack of coordination and
misunderstandings among the family members which effected oral
partition dated 05.10.1998 which was confirmed by a memorandum of
oral partition, dated 17.01.2000. Differences arose with regard to
arrangement of Schedule-I properties consisting of 294 properties
among the 77 individuals. The properties were allotted as per
Schedule-II. Serial No.31 of Schedule-I was allotted to Defendant
No.1/3rd respondent herein and in Schedule-II, Item Nos. 4, 10, 11, 12,
13, 17, 26, 27, 28 and 29 were allotted to the 3rd respondent herein.
The same was referred in item No.1 of 'A' and 'B' schedule
properties in the suit. The said memorandum of oral partition was
registered at Virudnagar. Therefore, according to him, it is ancestral
property and he is entitled for share.
11. It is further contended that his grandfather by name late
Ramachandran took promise from his son not to deviate or resist any
decision with regard to the partition. As such, sons of late
Ramachandran not opposed the partition. Defendant No.1 and the
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CRP No.1969 of 2023
plaintiff and Defendant No.2 were allotted ten items, as per Schedule-
6, at present, only three items are remaining. Defendant No.2 married
in the year 2013 and the in-laws insisted defendant No.2 to raise
objection against the injustice done to their father. The petitioner
herein/plaintiff demanded for partition of family assets and expressed
his intention to have separate share from the ancestral properties. With
the said contentions, he filed the said suit and it was decreed ex parte
on 27.11.2017.
12. It is apt to refer that the petitioner herein did not file any
application seeking final decree proceedings. Therefore, the said
judgment and decree dated 27.11.2017 remained as a paper decree.
However, in the said suit, the official memorandum of oral partition
dated 01.04.2004 was marked as Ex.A.1.
13. Whereas, respondents 1 and 2 herein have filed a suit vide
O.S.No.8 of 2018 against the 3rd respondent, father of the petitioner
herein seeking specific performance of contract based on the
agreement of sale, dated 19.05.2016 contending that the 3rd respondent
is the owner of the suit schedule properties. For his family necessities,
he had approached them and offered to alienate the suit schedule
property for a lumpsum sale consideration of Rs.80 lakhs for which
KL, J
CRP No.1969 of 2023
they have accepted. 3rd respondent herein had acquired the said
property out of confirmation of oral partition from his family members
vide registered document No.8014 of 2014 dated 05.11.2014. They
have entered into agreement of sale dated 19.05.2016 on the specific
terms and conditions mentioned therein and paid entire sale
consideration of Rs.80 lakhs to the 3rd respondent herein. Having
received the said sale consideration and executing agreement of sale
dated 19.05.2016, 3rd respondent delivered physical possession of the
suit schedule property in favour of respondents/plaintiffs and thus,
they became the owners as well as possessors of the suit schedule
property. Even then, 3rd respondent herein did not execute registered
sale deed in their favour. Therefore, they have filed the aforesaid suit.
14. It is apt to note that house bearing No.4-8-4/1/2, two
godowns built with RCC roof, in total, with built up area, measuring
750.83 sq.yards equivalent to 2261.73 meters. Item No.2 of Schedule-
A of the suit (O.S.No.88 of 2017) schedule property is also the suit
schedule property in O.S.No.8 of 2018.
15. As discussed supra, admittedly, the petitioner herein, though
not a party to the said agreement of sale dated 19.05.2016, is claiming
right over the suit schedule property in O.S.No.8 of 2018 relating to
KL, J
CRP No.1969 of 2023
oral partition dated 05.10.1998 confirmed by the memorandum of oral
partition dated 17.01.2000. however, Ex.A.1 oral partition dated
17.01.2004 was also marked as Ex.A.1.
16. In the aforesaid suit i.e. O.S.No.88 of 2017, 3rd respondent
herein had filed written statement admitting that the suit schedule
properties are their ancestral properties and further admitted that the
relationship between him, the petitioner herein/plaintiff and defendant
No.2 son and brother of the 3rd respondent and the petitioner herein.
Basing on the said admission, the Court below decreed the suit on
27.11.2017. Even then, the petitioner herein did not file an
application seeking to pass final decree proceedings.
17. In the light of the aforesaid discussion, it is relevant to
extract Order I Rule 10 of CPC which is as follows:-
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
KL, J
CRP No.1969 of 2023
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.
18. The scope and ambit of Order I Rule 10 of CPC was
considered by the Apex Court in Kasturi Vs. Iyyamperumal 1 and
paragraph Nos.15 and 16 are relevant, the same are extracted below:-
15. That apart, from a plain reading of the expression used in sub-rule
(2) Order 1 Rule 10 of the CPC "all the questions involved in the suit" it is
abundantly clear that the legislature clearly meant that the controversies
raised as between the parties to the litigation must be gone into only, that is
to say, controversies with regard to the right which is set up and the relief
claimed on one side and denied on the other and not the controversies which
may arise between the plaintiff/appellant and the defendants inter se or
questions between the parties to the suit and a third party. In our view,
therefore, the court cannot allow adjudication of collateral matters so as to
convert a suit for specific performance of contract for sale into a
(2005) 6 SCC 733
KL, J
CRP No.1969 of 2023
complicated suit for title between the plaintiff/appellant on one hand and
Respondent Nos. 2 & 3 and Respondent Nos. 1 and 4 to 11 on the other.
This addition, if allowed, would lead to a complicated litigation by which
the trial and decision of serious questions which are totally outside the scope
of the suit would have to be gone into. As the decree of a suit for specific
performance of the contract for sale, if passed, cannot, at all, affect the right,
title and interest of the respondent Nos.1 and 4 to 11 in respect of the
contracted property and in view of the detailed discussion made
hereinearlier, the respondent Nos.1 and 4 to 11 would not, at all, be
necessary to be added in the instant suit for specific performance of the
contract for sale.
16. It is difficult to conceive that while deciding the question as to who
is in possession of the contracted property, it would not be open to the Court
to decide the question of possession of a third party/ or a stranger as first the
lis to be decided is the enforceability of the contract entered into between
the appellant and the respondent No. 3 and whether contract was executed
by the appellant and the respondent Nos.2 and 3 for sale of the contracted
property, whether the plaintiffs were ready and willing to perform their part
of the contract and whether the appellant is entitled to a decree for specific
performance of a contract for sale against the respondent Nos.2 and 3.
Secondly in that case, whoever asserts his independent possession of the
contracted property has to be added in the suit, then this process may
continue without a final decision of the suit. Apart from that, the intervener
must be directly and legally interested in the answers to the controversies
involved in the suit for specific performance of the contract for sale. In
Amol Vs. Rasheed Tuck and Sons Ltd. [1956(1) All Eng.Reporter, 273] it
has been held that a person is legally interested in the answers to the
controversies only if he can satisfy the Court that it may lead to a result that
will effect him legally.
KL, J
CRP No.1969 of 2023
19. The Apex Court laid down two tests i.e. i) there must be a
right to some relief against such party in respect of controversies
involved in the proceedings, ii) no effective decree can be passed in
the absence of such party. It was further held that if the plaintiff who
has filed a suit for specific performance of the contract to sell even
after receiving the notice of claim of title and possession by other
persons (not pertains to the suit and even not parties to the agreement
to sell for which a decree for specific performance is sought) does not
want to join them in the pending suit, it is always done at the risk of
the plaintiff because he cannot be forced upon to join third parties as
party-defendants in such suit. Considering the principle that the
plaintiff therein is the dominus litis and cannot be forced to add parties
against whom he does not want to fight unless there is a compulsion
of the rule of law.
20. In Bhogadi Kannababu & Ors vs Vuggina Pydamma 2 ,
the Apex Court held that in an application for impleadment under
Order 1 Rule 10 of the Code of Civil Procedure, the only question that
needs to be decided is whether the presence of the applicant before the
Court may be necessary in order to enable the Court effectually and
(2006) 5 SCC 532
KL, J
CRP No.1969 of 2023
completely to adjudicate upon and settle all the questions involved in
the proceedings. But by such addition, it cannot be said that they were
also entitled to succeed to the claims in question or adjudicate upon.
21. In Sumtibai Vs. Paras Finance Co.Rg. Partnership Firm
Beawer (Raj.) Through Smt. Mankanwar3, the Apex Court held that if
a party can show a fair semblance of title or interest, he can certainly file an
application for impleadment.
22. In Moreshar Yadao Rao Mahajan Vs. Vyankatesh
Sitaram Bhedi (died) by L.Rs. 4 wherein in the subject agreement of
sale itself, it was mentioned that the suit property was a property
jointly owned by the defendant therein, his wife and three sons, no
effective decree can be passed in the absence of the wife and sons of
the defendant therein and that they are necessary parties.
23. In Mumbai International Airport Private Limited Vs.
Regency Convention Centre and Hotels Private Limited 5, it was
held as follows:-
15. 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
(2007) 10 SCC 82
2022 LiveLaw (SC) 802
(2010) 7 SCC 417
KL, J
CRP No.1969 of 2023
court. If a "necessary party" is not impleaded, the suit itself is liable to be
dismissed. 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 d adequately adjudicate upon all matters in dispute in the suit, though he
need not be a person in favour of or against whom the decree is to be made.
If a person is not found to be a proper or necessary party, the court has no
jurisdiction to implead him, against the wishes of the plaintiff. The fact that
a person is likely to secure a right/interest in a suit property, after the suit is
decided against the plaintiff, will not make such person a necessary party or
a proper party to the suit for specific performance.
24. In Gurmit Singh Bhatia Vs. Kiran Kant Robinson 6, the
Apex Court relying on the principle laid down by it in Kasturi
(supra), held that a pendenti lite purchaser is not a necessary party.
25. In the light of the aforesaid legal position, coming to the
facts of the present case, as discussed supra, the petitioner herein
having obtained preliminary decree of partition in O.S.No.88 of 2017
dated 27.11.2017, did not initiate any steps seeking final decree
proceedings. The said judgment and decree was passed relying on the
written statement filed by his father, 3rd respondent herein admitting
the claim of the petitioner herein/plaintiff therein. Thus, the petitioner
herein is not vigilant in taking steps seeking final decree proceedings
(2020) 13 SCC 773
KL, J
CRP No.1969 of 2023
in O.S.No.88 of 2017. Therefore, the said judgment and decree
remained as a paper decree.
26. Whereas, respondents 1 and 2 herein have set up their claim
in O.S.No.8 of 2018 basing on the agreement of sale dated 19.05.2016
executed by 3rd respondent/father of the petitioner herein. It is their
specific contention that the 3rd respondent herein had acquired subject
property out of confirmation of oral partition deed from his family
members vide registered document No.8014 of 2014 dated
05.11.2014. He has offered to sell the subject property to them for a
total sale consideration of Rs.80 lakhs and having received the said
amount of Rs.80 lakhs, he has entered into the agreement of sale dated
19.05.2016 and in the presence of M.Sambasiva Rao and one
K.Naveen Kumar, who are attestors to the said agreement of sale.
Having received the said sale consideration, he has also delivered
physical possession of the said property in favour of respondents 1
and 2. Thus, 3rd respondent, father of the petitioner herein, having
entered into the said agreement of sale dated 19.05.2016 on receipt of
Rs.80 lakhs towards sale consideration and putting respondents 1 and
2 in possession of the suit schedule property, filed written statement in
O.S.No.88 of 2017 admitting the claim of the petitioner herein.
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27. It is apt to note that the said agreement of sale is dated
19.05.2016. whereas, the said suit O.S.No.88 of 2017 was filed by the
petitioner herein in the year 2017 and the decree and judgment is
dated 27.11.2017 which was passed relying on the written statement
filed by the 3rd respondent admitting the claim of the petitioner herein.
Thus, the written statement filed by 3rd respondent would be in the
year 2017. i.e. later to the execution of the agreement of sale dated
19.05.2016.
28. At the cost of repetition, as discussed supra, admittedly, the
petitioner herein is not a party to the said agreement of sale dated
19.05.2016 basing on which the respondents 1 and 2 have filed
O.S.No.8 of 2018 seeking specific performance of the said agreement
of sale.
29. It is the contention of the petitioner herein that he is having
1/3rd share in the suit schedule property, he came to know about the
present suit O.S.No.8 of 2018 filed by respondents/plaintiffs falsely
basing on agreement of sale in collusion with the 3rd respondent to get
wrongful gain in order to defraud his legitimate share.
30. It is also apt to note that the 3rd respondent herein sole
defendant in O.S.No.88 of 2018. He had filed counter contending that
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the petition averments and the counter are inconsistent. The petition
filed under Order I Rule 10 of CPC is not maintainable. He never
entered into the agreement of sale as narrated by them. Thus, 3rd
respondent has denied the execution of the very agreement of sale
dated 19.05.2016. The said fact will be decided by the trial Court in
O.S.No.8 of 2018 during trial.
31. The petitioner herein who is not vigilant and who is not a
party to the agreement of sale dated 19.05.2016, having obtained
consent decree on 27.11.2017, cannot claim that he has interest over
the suit schedule property and he is necessary and proper party to the
same. He failed to show a fair semblance of title or interest over the
suit schedule property. He has set up the said claim relying on oral
partition dated 05.10.1998 followed by confirmation of the oral
partition dated 17.01.2000. Whereas, respondents 1 and 2/plaintiffs
are relying on oral partition dated 05.10.1998 confirmation of the oral
partition deed obtained by the 3rd respondent from his family members
vide registered document No.8014 of 2014 dated 05.11.2014 showing
that there is a partition of joint family property. The said partition of
the suit schedule properties among V.P.S.A. Velayutha Nadar and
Company, Sundara Vathanan A.N.S., A.N.S.A. Eswari and
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A.N.S.S.Vadhana and the 3rd respondent herein. It is a registered
partition. The said property is a joint family property and not ancestral
property. As claimed by the petitioner herein. After partition of the
property, 3rd respondent herein became the absolute owner.
Considering the said fats only, the Court below vide impugned order
dated 06.06.2023 dismissed the said application. It is a reasoned order
and well founded and it does not require interference by this Court
exercising its supervisory jurisdiction under Article 227 of the
Constitution of India.
32. In view of the above discussion, this revision is liable to be
dismissed and accordingly dismissed.
As a sequel thereto, miscellaneous applications, if any, pending
in the Contempt Case stand closed.
________________________
JUSTICE K. LAKSHMAN
Date:13.10.2023.
Note: L. R. Copy to be marked.
b/o. vvr
