Telangana High Court
Smt.S.Krishnamma vs S.Rajender Reddy on 12 September, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
1
THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
CIVIL REVISION PETITION No.3914 of 2023
And
CIVIL REVISION PETITION No.27 of 2024
COMMON ORDER:
These revisions emanate from the order dated 05.12.2023 passed
by the Senior Civil Judge, Kalwakurthy, in I.A.No.318 of 2023, and
order of even date in I.A.No.319 of 2023, in O.S.No.148 of 2022.
I.A.No.318 of 2023 was filed praying the Court to implead
proposed respondents 3 to 6 as defendants 3 to 6 in the suit. Likewise,
I.A.No.319 of 2023 was filed praying to permit the plaintiff to amend the
prayer in the plaint. By the impugned orders, the Trial Court allowed
the applications. Aggrieved thereby, the defendants 1 and 2 are before
this Court with these revisions, raising several grounds. For the sake of
convenience, the parties will be referred to as they were arrayed before
the Trial Court.
2. Heard Mr. Ch. Ramesh Babu, learned counsel for the
petitioner/plaintiff; and Mr. A.P. Suresh Ram, learned counsel for the
respondents 1 and 2/defendants 1 and 2.
3. The plaintiff filed the suit OS No.148 of 2022 for declaration of
title and recovery of possession of suit schedule property. It is the case
of the plaintiff that defendant No.2 and one S. Bachi Reddy (proposed
defendant No.3) played criminal mischief on the deceased (S.
Anthamma) by forging a SadaBainama (un-registered Gift Deed) alleged
to have been executed by the deceased Anthamma on 26.12.1983 and
got the said unregistered Gift Deed validated in the year 1994 through
proceedings dated 02.07.1994 issued by the Tahsildar (proposed
defendant No.4), and therefore the Tahsildar, the Revenue Divisional
Officer (proposed defendant No.5), and the District Collector (proposed
defendant No.6) are proper and necessary parties to the suit and prayed
the Court to add them as defendant Nos.3 to 6, respectively. The
plaintiff also challenged the legality of the unregistered Gift Deed.
4. The trial Court, by separate orders dated 05.12.2023, allowed
both the applications. Challenging the same, the defendants 1 and 2
filed the present revision petitions.
5. The crux of the contention of defendants is that the plaintiff had
knowledge of contested Sada Bainama (unregistered Gift Deed) in the
year 2014 itself, as the pleadings in the affidavit filed in support of
I.A.No.318 of 2023 would disclose the statement of plaintiff wherein he
stated that he had brought to the notice of his previous counsel about
the alleged forged Sada Bainama / unregistered Gift Deed but his
counsel failed to challenge the forged Sada Bainama. The defendants
therefore contend that the plaintiff having knowledge of the Sada
Bainama, laying challenge to the same after 30 years, is hit by Article
58 of Limitation Act.
6. The defendants also contend that the trial Court ought to have
considered the written arguments of defendants, in view of the
judgment in G. Jaya Rao v. State of A.P. Land Reforms,
Srikakulam 1, however the trial Court failed to consider the same, and
therefore the impugned orders dated 05.12.2023 passed in both
Interlocutory Applications are bad in law, and the same are liable to be
set aside.
7. Learned counsel for the defendants relied on the judgment of the
Hon' ble Supreme Court in Mumbai International Airport Pvt. Ltd. v.
Regency Convention Centre & Hotels Pvt. Ltd 2; Karuppaswamy v.
C. Ramamurthy 3.
8. In Regency Convention (2 supra), wherein there was a contest
to adding a party on the ground that the proposed party therein was
neither proper nor necessary to the suit, the Hon'ble Supreme Court
held that 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, and 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.
2003 (3) ALT 127
AIR 2010 SC 3109
AIR 1993 SC 2324
9. In Karuppaswamy (3 supra), the subject matter was with regard
to the limitation and the date from which it deserves computation. It
was observed by the Hon'ble Supreme Court at paragraph 9 as follows:
"9. Thus in our opinion the course set out in Mushis case (AIR 1983 SC
271) is attracted to the instant case since the High Court has found that
the plaintiff-respondent had acted in good faith and had committed
mistake in that frame of mind. Munshi's case, in our view, should clear
the way in favour of the plaintiff-respondent, ending in dismissal of this
appeal."
10. ........ In contrast, in Rasetty Rajya lakshmamma v. Ramajuru
Kanniah, AIR 1978 Andh Pra 279, the mistake was found to have
occurred in good faith and the implement of this legal representatives
was allowed even after the expiry of the limitation for filing suit. The
institution of the suit was rightly held therein to be not void ab initio".
10. Learned counsel for the plaintiff/respondent relied on the
judgment of the Hon' ble Supreme Court in Life Insurance
Corporation of India v. Sanjeev Builders Private Limited 4, and also
the judgment of this Court in Mothkupally Narsimhulu v. Adimalla
Susheela 5.
11. The Hon'ble Supreme Court in Sanjeev Builders (4 supra) held
as follows:
"(i) Order II Rule 2 Code of Civil Procedure operates as a bar against a
subsequent suit if the requisite conditions for application thereof are
satisfied and the field of amendment of pleadings falls far beyond its
purview. The plea of amendment being barred under Order II Rule 2 Code
of Civil Procedure is thus, misconceived and hence negative.
AIR 2022 SC 4256
(ii) All amendments are to be allowed which are necessary for determining
the real question in controversy provided it does not cause injustice or
prejudice to the other side. This is mandatory, as is apparent from the use
of the word "shall", in the latter part of Order VI Rule 17 of the Code of
Civil Procedure.
(iii) The prayer for amendment is to be allowed.
(i) ***
(ii) To avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side
(b) by the amendment, the parties seeking amendment does not
seek to withdrawy any clear admission made by the party which
confers a right on the other side and
(c) ***
(iv) A prayer for amendment is generally required to be allowed
unless
(i) ***
(ii) The amendment changes the nature of the suit
(vi) where the amendment would enable the court to pin-
pointedly consider the dispute and would aid in rendering a more
satisfactory decision, the prayer for amendment should be
allowed.
(vii) where the amendment merely sought to introduce an
additional or a new approach without introducing a time barred
cause of action, the amendment is liable to be allowed even after
expiry of limitation.
(x) where the amendment changes the nature of the suit or cause
of action, so as to set up an entirely new case, forein to the case
set up in the plaint, the amendment must be disallowed. Where,
however, the amendment sought is only with respect to the relief
in the plaint, and is predicated on facts which are already
pleaded in the plaint, ordinarily the amendment is required to be
allowed.
(xi) ...... Equally, where the amendment is necessary for the court
to effectively adjudicate on the main issues in controversy
between the parties, the amendment should be allowed.
12. It may be noted that the plaintiff filed I.A.No.318 of 2023 under
Order 1 Rule 10(2) of Code of Civil Procedure (CPC) for adding parties to
the suit; and also filed I.A.No.319 of 2023 under Order 6 Rule 17 of CPC
for amendment of prayer in the suit. It is therefore relevant to refer to
the said provisions which read as follows:
Order 1 Rule 10(2):
(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.
Order 6 Rule 17:
(17) Amendment of Pleadings:-The Court may at any stage of the
proceedings allow either party to alter or amend his pleadings in such
manner and on such terms as may be just, and all such amendments shall
be made as may be necessary for the purpose of determining the real
questions in controversy between the parties: Provided that no application
for amendment shall be allowed after the trial has commenced, unless the
Court comes to the conclusion that in spite of due diligence, the party
could not have raised the matter before the commencement of trial.
13. It is to be noted that in the instant case the pleading of the
plaintiff is that the unregistered Gift Deed dated 26.12.1983 is forged
and fake document brought into existence with ulterior motive, and that
the said document was got validated in the year 1994 through some
alleged proceedings issued by the proposed defendant No.6 on
02.07.1994 and therefore sought to implead the proposed defendants 3
to 6 as defendants to the suit for effective determination of the suit, and
accordingly sought for amendment of the prayer as well. The only
ground sought to be urged by the defendants 1 and 2 is that the
plaintiff is in the know of the document prior to the suit. However, it is
to be noted that at the same time it is the plea of the plaintiff that he
had informed his previous counsel about the unregistered Gift Deed. At
this juncture, it may be noted that the observations of the District Court
while dismissing the CMA No.13 of 2014 filed by the plaintiff, at
paragraph 9 regarding Ex.P1-Will Deed 17.06.2007 and Gift Deed dated
26.12.1983, stating that the Will dated 17.06.2007 which is marked as
Ex.P1 is the question of fact to be considered only during the course of
trial; and expressed doubt on validation by revenue authorities since
such power under the Rights in Land and Pattadar Pass Books Act,
1971 is applicable only to transactions like agreement of sale and
unregistered sale deed etc, but not to a gift deed governed under
Transfer of Property Act, and that these aspects will be decided during
the course of trial.
14. It may be noted that the proposed defendants are proper parties
to testify with regard to the validation of unregistered Gift Deed and
consequent mutation proceedings andwhether such proceedings were
with notice or without notice to late S Anthamma and whether Section
5A and the Rules of Telangana Rights in Land and Pattadar Passbooks
Act, 1971, are contravened. These are factual aspects that can be
decided during the course of trial. It is to be noted that merely because
the I.As are filed at the stage of final arguments does not necessarily
entail dismissal of the applications, for, if that is so, the purport of
Order 1 Rule 10(2) itself becomes defunct. It is to be noted that the
Court, with regard to facts of a given case, has to exercise judicious
discretion, and the Court cannot either allow or dismiss as a matter of
course, to add parties at any stage of proceedings for effectual
adjudication of the suit. The phrase "at any stage of proceedings" is
significant and beset with judicious discretion while impleading or
dropping a party for effectual adjudication.
15. Coming to the application in I.A.No.319 of 2023, which is for
amendment of prayer, challenging the unregistered Gift Deed dated
26.12.1983 as null and void and not binding on the plaintiff on the
ground of alleged forgery and contravention of Section 5A read with
Rule 22 of the Act, being without notice.
16. Considering the judgments relied on by both the learned counsel,
this Court is of the view that the judgment of the Hon'ble Supreme
Court in Sanjeev Builders (5 supra) is relevant to the facts of the
present case, for, the amendment of prayer would in no way alters the
nature of the suit itself, as the plaintiff is still seeking declaration of title
and possession, and the plaintiff's knowledge of unregistered Gift Deed
dated 26.12.1983 and agitating the same is not a time-barred cause of
action but continuous and therefore by seeking amendment of prayer,
the plaintiff is not introducing a time-barred cause, as the cause of
action is still the same which is with regard to the title being claimed
based on the alleged unregistered Gift Deed dated 26.12.1983 and its
subsequent validation by the revenue authorities in the year 1994.
17. In that view of the matter, this Court does not find any illegality
in allowing I.A.No.319 of 2023 thereby permitting to amend the prayer.
18. With regard to the addition of proposed defendants 3 to 6, it is
relevant to note that the Hon'ble Supreme Court in Anil Kumar Singh
v. Shivnath Mishra 6 observed with regard to Order 1 Rule 10(2) as
follows:
"By operation of the above-quoted rule though the court may have
power to strike out the name of a party improperly joined or add a party
either on application or without application of either party, but the
condition precedent is that the court must be satisfied that the
presence of the party to be added, would be necessary in order to
enable the court to effectually and completely adjudicate upon and
settle all questions involved in the suit. To bring a person as party-
defendant is not a substantive right but one of procedure and the court
has discretion in its proper exercise. The object of the rule is to bring
on record all the persons who are parties to the dispute relating to the
subject matter so that the dispute may be determined in their presence
at the same time without any protraction, inconvenience and to avoid
multiplicity of proceedings."
Though the plaintiff is dominuslitus, it is the duty of the Court to
ensure that, if, for deciding the real matter in dispute, a person is
necessary party, the court can order such persons to be impleaded.
Merely because the plaintiff does not choose to implead a person, is
not sufficient for rejection of an application for being impleaded.
(1995) 3 SCC 147
19. Furthermore, it is not the case of revision petitioners/defendants
1 and 2 that the proposed defendants are not proper or necessary
parties to the suit, or that the scope of the suit is enlarged or that the
questions not involved in the suit are being decided. It is to be noted
that the ground urged by the plaintiff is that the alleged forged
document dated 26.12.1983 and the consequential proceedings in the
year 1984 under the Act are without notice as mandated under Section
5A read with Rule 22 of the Act, and therefore the proposed defendants
are proper and necessary parties. It is also to be noted that while
allowing the impugned I.As., the trial Court has observed that
admittedly the impleadment application was filed at the fag end of main
suit proceedings however the same cannot be thrown out and the trial
Court inclined to give opportunity to the plaintiff to avoid multiplicity of
litigation; and further with regard to amendment of prayer, the
defendants can file additional written statement against the new
amended contentions in the plaint. Furthermore, the proposed
defendants are not added in the capacity of plaintiffs or share-holders of
the suit property, and they are the authorities who validated the
disputed unregistered Gift Deed dated 26.12.1983 allegedly without
notice and in contravention of the Rights in Land and Pattadar Pass
Books Act, and therefore their addition is innocuous in nature and
could only aid in effectual adjudication of the suit, if not anything more;
and as the trial Court rightly observed, the defendants can rebut the
amendment by filing additional written statement if they so choose. In
that view of the matter, given the facts of the case, this Court does not
find any judicial impropriety in the discretion exercised by the trial
Court in allowing the impugned applications.
20. Having considered the rival contentions, and perusing the
material on record, and the judgments relied on by both the learned
counsel in both the revision petitions, this Court does not find
reasonable ground to interfere with the orders of the trial Court and
therefore the revision petitions are liable to be dismissed.
21. Accordingly, the revision petitions are dismissed. No costs.
Miscellaneous petitions, pending if any, shall stand closed.
_____________________________
Justice Nagesh Bheemapaka
12th September, 2024
ksm
