Telangana High Court

Smt. D.Jayaprada vs D.Pratap Reddy on 23 July, 2025

Author: T. Vinod Kumar

Bench: T. Vinod Kumar

        THE HON'BLE SRI JUSTICE T. VINOD KUMAR

         CIVIL REVISION PETITION No. 1735 of 2023

ORDER:

The present Civil Revision Petition is preferred against the

order dated 05.06.2023 in I.A.No.615 of 2022 in A.S. No.09 of

2020 passed by the Principal District Judge Vikarabad District.

2. The revision petitioner herein is the petitioner in the

underlying interlocutory application filed seeking to come on

record as respondent No. 9 in the Appeal Suit vide A.S.No.9 of

2020.

3. The respondent No.1 herein filed the above appeal vide

A.S.No.9 of 2020 against the Judgment in the suit vide O.S. No.51

of 2007 filed by respondent No.2 herein for partition and separate

possession under Order VII Rule 1 r/w Section 26 of Code of Civil

Procedure (for short 'CPC').

4. The petitioner herein had filed the underlying interlocutory

application vide I.A. No. 615 of 2022 in A.S. No.9 of 2020 under

Order I Rule 9 & 10(2) CPC seeking permission to implead himself

as respondent No.9 in the appeal suit. The said application was

filed on the ground that he is anecessary and proper party to the

appeal suit for effective adjudication of the matter.

5. The trial Court dismissed the underlying interlocutory

application holding that the petitioner herein, need not be

impleaded in above appeal suit. The trial Court observed that in the

judgment and decree in O.S. No.51 of 2007 dated 15.06.2020,

there is no whisper with regard to the alleged agreement of transfer

dated 08.11.1984 stated to have been executed by her mother-in-

law in her favor based on which the petitioner herein is claiming to

be absolute owner.

6. Further, the Court below held that the petitioner herein ought to

have filed a separate suit seeking declaration in pursuance of the

agreement of transfer vide 08.11.1984 instead of seeking to be

impleaded by filing the underlying interlocutory application in the

appeal suit, when the relief sought for in the above suit is for

partition and separate possession which is already decreed.

7. The trial Court also observed that, the petitioner herein except

claiming under the alleged agreement of transfer, has failed to

produce any document to prove her continuous possession and to

show her name having been mutated in the revenue records and

held that the petitioner herein is not required for deciding the above

appeal suit.

8. The trial Court held that the petitioner has failed to satisfactorily

explain the relevance or necessity of her role or requirement in

determining the issues in A.S. No.9 of 2020. Accordingly, the trial

Court held that the petitioner could not be impleaded as respondent

No.9 in the appeal suit i.e. A.S. No.9 of 2020, as her addition was

not necessary for the effective adjudication of the matter.

9. Aggrieved by the above said order dated 05.06.2023 the

petitioner herein have preferred the present Civil Revision Petition.

10. Heard Sri C. Hanumantha Rao learned Counsel for the

petitioner and Sri Yadaiah Barrisetty, learned Counsel appearing

on behalf of respondent No.1; Sri Venkata Mayur, learned Counsel

appearing on behalf of respondent No.2 and perused the record.

11.The petitioners contend that the impugned order is contrary to

law and the trial Court failed to exercise its jurisdiction under

Order I Rule 9 and 10(2) CPC by not impleading the petitioner as

respondent No.9 in the above appeal suit, despite being necessary

party to the said appeal suit; that she is entitled and has exclusive

right, title, interest in respect of the lands covered in the agreement

of transfer; and that the trial Court ought to have appreciated that

the agreement of transfer is in between the family members and no

other record is necessary to produce before the trial Court. Hence,

the petitioner herein had acquired interest in the above appeal suit,

and therefore her presence is essential for the effective adjudication

of the appeal suit; and that the trial Court erred in misapplying the

settled legal principles regarding impleadment.

12. Per contra, the respondents herein contend that the revision

petition is liable to be dismissed on the ground of absence of merit,

as the proposed respondent No.9, i.e., petitioner herein allegedly

created the agreement of transfer and failed to show any relevance

on her part as necessary party to the appeal suit; and that her

impleadment is not essential for effective adjudication. Thus, the

application filed for lack of bona fides and is liable to be dismissed.

13. I have taken note of the respective contentions urged.

14. It is pertinent to note that the petitioner herein is seeking to be

impleaded as respondent No.9 in the appeal suit vide A.S No.9 of

2020 claiming that the suit scheduled properties are transferred in

her favour on the basis of the said agreement of transfer dated

08.11.1984 executed by her mother-in-law. However, as rightly

held by the trial Court, the petitioner ought to have filed a separate

suit seeking declaration to declare the petitioner as absolute owner

and possession in pursuance of the agreement of transfer dated

08.11.1984, as the validity of the said agreement of transfer has to

be decided through separate proceedings by adducing evidence.

15. Further, it is settled law that if any third party to the suit has

any apprehension that he/she will be deprived of the property,

he/she can always file a separate suit against person (See: Akshara

Brahma Mines and Development and Ors. vs. Kampa Hanoku

and Ors 1).

16.The Crucial test for impleading any party, whether as plaintiff

or defendant, is whether presence of such party is necessary or

proper without whom there can be no effect or final adjudication of

1MANU/AP/0753/2023

all the issues involved in the suit with regard to the same subject

matter.

17. As per the doctrine of dominus litis the plaintiffs in the suit

have the exclusive rights to decide against whom the suit is

instituted and cannot be compelled to include a party against whom

no relief is sought. Since, the petitioner/proposed respondent No.9

has not claimed any relief in the suit, she do not satisfy the criteria

of being necessary or proper party for her to be impleaded in the

appeal suit by the Court below.

18. The Hon'ble Supreme Court in Mumbai International Airport

Pvt. Ltd. vs. Regency Convention Centre and Hotels Pvt. Ltd. and

Ors2 has held as under:

12. ....the scope and ambit of Order 1 of 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 moto 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

MANU/SC/0427/2010

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. This Court in Ramji Dayawala & Sons (P) Ltd. v. Invest Import MANU/SC/0502/1980 :

1981 (1) SCC 80 reiterated the classic definition of 'discretion' by Lord Mansfield in R. v. Wilkes 1770 (98) ER 327 that 'discretion' when applied to courts of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, 'but legal and regular'. We may now give some illustrations regarding exercise of discretion under the said Sub-Rule.

12.1) ***** 12.2) ***** 12.3) If a person makes an application for being impleaded contending that he is a necessary party, and if the court finds that he is a necessary party, it can implead him. If the plaintiff opposes such impleadment, then instead of impleading such a party, who is found to be a necessary party, the court may proceed to dismiss the suit by holding that the applicant was a necessary party and in his absence the plaintiff was not entitled to any relief in the suit. 12.4) *****

19. It is further to be noted that the proposed respondent No.9 has

failed to demonstrate any proprietary right, title, or legal interest in

the subject property that would justify her impleadment as party to

the above appeal suit. The mere filing of an interlocutory

application seeking to be added as defendants in an appeal against

the suit primarily instituted for partition and separate possession,

cannot be sustained without establishing any legal basis.

20. In view of the above, the revision petitioner herein cannot be

impleaded as respondent No.9 in the appeal suit under Order I Rule

9 &10(2) CPC filed for seeking partition and separate possession

on the basis of an agreement of transfer, considering that she ought

to have filed separate suit to seek redressal of her grievance before