Telangana High Court

Guttamedi Sthyamma vs G.Mallesham on 12 February, 2025

Author: G.Radha Rani

Bench: G.Radha Rani

      THE HONOURABLE Dr. JUSTICE G.RADHA RANI

           CIVIL REVISION PETITION No.4194 of 2024

ORDER:

This Civil Revision Petition is filed by the petitioners / plaintiffs

aggrieved by the order dated 16.10.2024 passed in I.A.No.1403 of 2019 in

O.S.No.2 of 2019 by the learned IV Additional District Judge, Sangareddy.

2. The petitioners are the plaintiffs. The plaintiff No.1 is the first wife of

Jangaiah and the plaintiff No.2 is the daughter of plaintiff No.1. They filed

O.S.No.2 of 2019 for partition and separate possession of the suit schedule

property and to allot one share to them. The petitioners - plaintiffs filed a

petition under Order I Rule 10 of CPC read with Rule 28 of Civil Rules of

Practice vide I.A.No1403 of 2019 to implead Laxmi Narsimha Educational

Society as defendant No.4 being the lease holder of the entire suit schedule

property given by respondents 1 and 2 under two separate lease deeds. It was

the contention of the petitioners / plaintiffs that defendant No.4 was running an

educational institution by name Laxmi Narsimha Educational Society in the suit

schedule property and that he was a proper and necessary party.

3. The respondents 1 and 2 filed counter disputing the relationship of

petitioner No.2 with their father Jangaiah. They were claiming rights over the

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suit schedule property under a Will Deed dated 01.12.2007 executed by

Jangaiah, their father, in their favor. They contended that the proposed

defendant No.4 was not a necessary party to decide the issues involved in the

suit and prayed for dismissal of the petition.

4. Notice was issued to the proposed party / defendant No.4. The proposed

party also engaged an advocate, but did not file any counter and not opposed the

petition in I.A.No.1403 of 2019.

5. On considering the contentions of both the learned counsel, the trial court

i.e. the learned IV Additional District Judge, Sangareddy dismissed the petition

observing that the presence of lease holder was not necessary for adjudication of

a partition suit. He was neither a proper nor a necessary party in a suit for

partition. The trial court further observed that the petitioners failed to seek any

consequential amendment upon the impleadment of proposed respondent No.4

as defendant No.4 in the main suit and Rule 28 of Civil Rules of Practice was

not complied with and dismissed the petition on the said two grounds.

6. Aggrieved by the said dismissal of I.A.No.1403 of 2019, the petitioners -

plaintiffs preferred this CRP.

7. Heard Ms.G.Sri Vidya, learned counsel for the petitioners on record and

the learned counsel for the respondents 1 and 2.

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8. Learned counsel for the petitioners contended that the trial court came to

an incorrect conclusion that the proposed party / defendant No.4 being a lease

holder was not a necessary party. The defendant No.4 already changed the

nature of the property by constructing several buildings therein and was running

an educational institution and was also trying to make further constructions.

Though the proposed party was not a share holder of the property, he was in

actual possession of the property at the instance of respondents 1 and 2. In the

event of decreeing the suit, in the final decree proceedings, a question might

arise as to who was responsible to deliver possession of the share of the

petitioners. To avoid all future complications, it was necessary to implead the

proposed party as defendant No.4 for effective adjudication of the suit. The

petitioners also filed a petition vide I.A.No.179 of 2023 to direct the proposed

party / defendant No.4 to deposit half of the rents before the trial court. Without

making him as a party to the suit proceedings, it was not possible to seek the

relief of deposit of rents from the proposed party. The trial court also dismissed

I.A.No.179 of 2023 and they were taking separate steps for challenging the said

order.

8.1. Learned counsel for the petitioners further submitted that the trial court

observed that the petitioners had not sought any consequential amendment as

required under Rule 28 of Civil Rules of Practice. The petitioners filed the suit

through an advocate, who filed I.A.No.1403 of 2019. Accidentally or

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inadvertently, the said counsel had not sought the relief of consequential

amendment as required under Rule 28 of Civil Rules of Practice. The

petitioners changed the counsel and had requested the trial court to permit the

petitioners to amend the petition by adding the relief of consequential

amendment under Rule 28 of Civil Rules of Practice, but the trial court not

allowed the said petition. The petitioners could not be deprived of their right

for the mistake committed by the counsel. The procedural aspects could not

take away the substantial rights of the parties and it was a triable issue, which

could be decided at the time of trial and relied upon the judgment of the

Hon'ble Apex Court in State of Punjab and another v. Shamlal Murari and

another1 on the aspect that,

"Procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the hand-maid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, tho' procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of a case, we should not enthrone a regulatory requirement into a dominant desideratum. After all, Courts are to do justice, not to wreck this end product on technicalities."

9. Learned counsel for the respondents 1 and 2 on the other hand submitted

that the court below rightly exercised its discretion as empowered under Order I

1976 AIR 1177

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Rule 10(2) of CPC by considering the facts and circumstances of the case

placed before it. The impugned order was passed with clear observation that the

respondent No.4 was not necessary for effective adjudication of the suit

proceedings. The petitioners failed to explain as to how the proposed party was

a proper party and why his presence was necessary for complete and effective

adjudication of the dispute. He further contended that the petitioners - plaintiffs

were no way concerned to the suit schedule property and they were aliens to the

family of the respondents. The status of the petitioner No.1 as wife of Jangaiah

was lost, when she was blessed with petitioner No.2. The petitioners did not

have any locus or tenable claim or right or concern over the suit schedule

property and prayed to dismiss the petition.

10. Now the point for consideration is: Whether the trial court committed any

error in passing the order in dismissing the petition filed by the petitioners for

impleading the proposed party as defendant No.4 in the suit.

11. Admittedly, the suit was filed for partition and separate possession by the

petitioners herein and the proposed defendant No.4 was a lease holder of the

suit schedule property from the respondents 1 and 2. The respondents 1 and 2

were disputing the relationship of the petitioner No.2 with their father Jangaiah.

They were claiming the property through a will deed dated 01.12.2007 executed

by Jangaiah. These claims of the respondents need to be decided during the

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course of trial. The petitioners also stated that they have also filed I.A.No.179

of 2023 to direct the proposed party - defendant No.4 to deposit the rents into

the trial court and submitted that the said petition was dismissed by the trial

court and they were taking steps challenging the said order.

12. The High Court of Madras in Kamalesan and others v. R.Pushpagaran

and others 2, while considering the aspect whether a tenant could be impleaded

in a suit for partition, held that:

"14. The Court have considered the provision of Order 1 Rule 10(2) of CPC were very wide and the power of Courts were equally extensive. Even, without an application, impleaded as party, the Court can add any other party if such party is necessary party to enable Court to effectually and completely adjudicate questions involved in the suit. Necessary party is one without whom no order can be effectively made and proper party is one whose presence is necessary as party and he had relevant evidence to give on some questions involved and he becomes necessary witness. But, in the present case, the petitioners/proposed parties and tenants are 3rd parties and they were no way connected in respect of suit schedule of property except the tenant. In the suit schedule of property, they cannot be added as the defendants, since they are not the legal heirs of the original owners of the suit schedule of property and there is no relief also claimed by the petitioners/plaintiffs against the proposed parties. If at all the 3rd defendant wants to income of the rent, they can very well to apply to the Court to file an appropriate application for appointing an Advocate Receiver

2017 SCC OnLine Mad 4451

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for collecting the rental amount from the tenant and to deposit the Court or the 3rd defendant himself have right to file an application seeking direction to the tenant, who are in actual possession of the suit schedule of property to deposit the rental amounts. But, without doing so, the 3rd defendant has filed the present application, for impleading the tenant, since no relief is claimed by the plaintiffs against the proposed parties / 3rd parties in the suit for partition."

13. The Kerala High Court in Joy vs. Mary3 also while considering the

aspect whether a tenant was a necessary party to a suit for partition, held that:

"The Code of Civil Procedure does not contain any express provision as to who should be considered as necessary parties, but it is clear from an examination of the rule of Order I of the Code that two conditions must be satisfied so that a party may be considered a necessary party namely; first, there must be a right to some relief against him in respect of the matter involved in the suit and, secondly, his presence is necessary to enable the court, effectually and completely, to adjudicate upon and settle all the questions involved in the suit. A person who is only indirectly or remotely interested is not a necessary party. A person who may be interested in the result of the suit and who may have a right to seek the assistance of the Court in deciding on the point in issue is a proper party in that suit."

The Court further observed that:

"In a partition suit, all interested persons contesting for a right in the property were necessary parties and persons who were not interested in the result of the suit are not entitled to any share in the property were not necessary parties. A partition

2023 Live Law (Ker) 671

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suit cannot be determined in the absence of necessary parties. The rights of the parties cannot be judicially determined in the absence of the persons interested in contesting them. The Court is also required to ascertain the property to be partitioned. All persons interested in determining these and other questions that may be raised in a suit for partition are necessary parties. A person who is not interested in the results of the suit or entitled to any share is not a necessary party. Conversely it means that where a person in a suit for partition is interested in its result and is entitled to a share, he must be regarded as a necessary party."

14. A person cannot be added as a defendant merely because he would be

incidentally affected by the judgment. The main consideration is whether or not

the presence of such a person is necessary to enable the Court to effectively and

completely adjudicate upon and settle the questions involved in the suit. As the

proposed defendant No.4 is only a lease holder and has no interest in the

partition suit, this Court does not find any error in the order of the trial court in

dismissing the petition filed by the petitioner. As such, this Court finds that the

order passed by the trial court does not require any interference by this Court.

15. In the result, the Civil Revision Petition is dismissed confirming the order

dated 16.10.2024 passed in I.A.No.1403 of 2019 in O.S.No.2 of 2019 by the

learned IV Additional District Judge, Sangareddy.

No order as to costs.