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2006 DIGILAW 1131 (AP)

B. Vijayalakshmi v. T. Jayamma

2006-09-15

T.CH.SURYA RAO

body2006
ORDER The instant revision petition is directed against the order dated 17-3-2006 passed in I.A.No.486/2005 in I.A.No.440/2005 in O.S.No.188/2005. The revision petitioner is the applicant, who filed I.A.No.486/2005 under Order 1 Rule 10 of Civil Procedure Code read with Section 151 of the Civil Procedure Code seeking to implead herself as respondent No.4 in I.A.No.440/2005. That application having been heard and dismissed under the impugned order. She is now seeking to assail the same. 2. A few facts which led the petitioner to file the present revision application need be mentioned to elucidate the fact in controversy and the illegality that has been crept in at various levels. The first respondent herein is the plaintiff. She filed the suit for partition against as many as six defendants including 3 the revision petitioner as sixth defendant. The relief of partition was claimed as can be seen from the averments made in the plaint, a copy of which is supplied. Defendants 1 to al 5 are the co-heirs. Defendants 1 to 3 are the brothers and defendants 4 and 5 are the sisters of the plaintiff. Sixth defendant seems to have been one of the purchasers from in other contesting defendants under an agreement of sale. In the accompanying application filed in I.A.No.440 of 2005, the plaintiff sought a relief of temporary injunction restraining the defendants 1 to 5 from alienating the property. In that application, the revision petitioner is not shown or arrayed as a party thereto. I.A.No.440/2005 is still pending. In that application, the revision in petitioner filed I.A. No.486/2005 under Order 1 Rule 10 seeking to come on record on the ground that she would be the affected party. On the premise that the sixth defendant in the suit that is the revision petitioner is the proforma defendant and she can work out her remedy in the suit that has already been filed e seeking specific performance of the contract h of sale as against defendants 1 to 3, the al executants thereof, she was neither necessary nor proper party to I.A. No.440/2005, the Court below dismissed in that application. 3. It is a glaring example where the basic principles enumerated in the Civil Procedure Code and the Civil Rules of Practice lost site (sic. sight) off by all concerned. 3. It is a glaring example where the basic principles enumerated in the Civil Procedure Code and the Civil Rules of Practice lost site (sic. sight) off by all concerned. Order 7 Rule 1 of the CPC postulates that the plaint shall contain the particulars as enumerated in clauses (a) to (i) inter alia therein. Clause c shows that the name, description and place of residence of the defendant shall have to be mentioned in a plaint. In the instant case, the revision petitioner is an eo-nomine party to the suit having been arrayed as sixth defendant. The plaint is silent to show that sixth defendant is a proforma party She appears to be a subsequent purchaser under a contract of sale from defendants 1 to It is no doubt true the contract has not been crystallized into a regular sale transaction and the suit seeking the relief of specific performance filed by her is pending adjudication before the appropriate Court notwithstanding the same, having been added as a party defendant to the suit, can she be omitted from the array in the application filed I.A.No.440/2005 seeking injunction against defendants 1 to 3 who are the respondents are in from alienating the property is the question. Obviously, any such injunction straining the defendants 1 to 3, who are the respondents in I.A.No.440/2005 would affect interest of the revision petitioner, who is sixth defendant to the suit. Rule 53 of the civil Rules of Practice postulates that interlocutory applications shall be headed with the cause title of the plaint, original petition or appeal as in Form No.30. Having regard to the same in ordinary course, the cause title I.A.No.440/2005 should have contained the name of the revision petitioner as one of the respondents. If she is not added as an eo-nomine party thereto, the reasons should have been assigned inter alia in the application. Obviously, the applicant, who is the plaintiff has not shown the revision petitioner as a party nor assigned any reasons support of such omission. 4. Very peculiarly, the revision petitioner sought to file an application in I.A. No.486/2005 under Order 1 Rule 10 seeking come on record in the interlocutory application I.A. No.440/2005. Obviously, the applicant, who is the plaintiff has not shown the revision petitioner as a party nor assigned any reasons support of such omission. 4. Very peculiarly, the revision petitioner sought to file an application in I.A. No.486/2005 under Order 1 Rule 10 seeking come on record in the interlocutory application I.A. No.440/2005. If any injunction s been granted in I.A.No.440/2005 behind back of the revision petitioner, the proper remedy perhaps seems to be that having added her as a party to the suit without owing her as a party to I.A.No.440/2005 purposefully or accidentally or inadvertently application could have been filed before the Court seeking to change, alter or annul order passed in I.A.No.440/2005. There 10 need for her to file a separate application under Order 1 Rule 10 seeking to come on record in I.A.No.440/2005, oblivious of the fact that she is an eo-nomine party to the suit. Such an application filed under Order 1 Rule 10 again is a misconceived application. Remedy seems to be elsewhere. Without adverting to the basic principles of the Civil Procedure Code and the Civil Rules of Pratice, litigation is being run by the respective parties. It appears to be a most unfortunate and alarming situation because of the fact that it may cause a reasonable apprehension in the mind of any prudent person that in what direction we are going and where it would end. It is high time that the parties should realize that they must first of all advert to fundamental principles and conduct the litigation in a proper manner, so that, it can save time, expenditure besides injustice as a result of such type of litigation. What is the appropriate relief that shall be sought before a Court of law shall first be identified and after having identified, then the litigation can be initiated. If that is not done, it would obviously lead to travesty of justice besides inconvenience, loss of time, loss of expenditure. Such type of litigation would certainly take away the major part of time to be spent by higher Courts for a valid purpose. I hope and trust that the anxiety of the Court will be understood by all concerned in proper perspective, in the interest of public. 5. Such type of litigation would certainly take away the major part of time to be spent by higher Courts for a valid purpose. I hope and trust that the anxiety of the Court will be understood by all concerned in proper perspective, in the interest of public. 5. The revision petition for the above reasons is disposed of directing the parties to file appropriate applications in which event notwithstanding the earlier proceedings initiated by the parties, the Court would advert to it, which is also a party to such proceedings. Under the circumstances, there shall be no separate order as to costs.