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2006 DIGILAW 125 (AP)

V. Suresh Reddy v. Vakiti Gopal Reddy

2006-02-06

L.NARASIMHA REDDY

body2006
( 1 ) THE petitioner filed O. S. No. 56 of 2002, against the respondents 1 to 3, in the court of Senior Civil Judge, Bhongir, for the relief of specific performance of an agreement, in respect of the suit schedule property. In short, the case of the petitioner is that, there exists an agreement between the petitioner and the respondents to the effect that, on payment of consideration by one M/s Srinidhi homes Private Limited, the 4th respondent herein, the respondents 1 to 3 shall execute a sale deed in favour of the petitioner, in respect of the suit schedule property. The respondents 1 to 3 filed their written-statement, denying the very existence of agreement. They further pleaded that they did not receive any amount from the 4th respondent. It was in this context that the petitioner filed I. A. No. 469 of 2004, under Order 1 Rule 10 C. P. C. , to add the 4th respondent as defendant No. 4. ( 2 ) THE application was resisted by respondents 1 to 3, and respondent No. 4 remained ex parte. Through his order dated 22-07-2005, the trial Court dismissed the I. A. Hence, this C. R. P. Sri L. Prabhakar Reddy, learned counsel for the petitioner submits that the petitioner did not feel the necessity of impleading the 4th respondent as defendant No. 4, in the initial stage, because he proceeded on the footing that the latter paid the consideration to the respondents 1 to 3, and he had to file the instant application, once it was pleaded by respondents 1 to 3 that the said consideration was not paid. He contends that there is sufficient background in the pleadings for impleading the 4th respondent, as one of the defendants, and the trial Court ought to have allowed the I. A. ( 3 ) SRI Kiran Palakurthi, learned counsel for the respondents 1 to 3 submits that the petitioner did not claim any relief against the proposed 4th respondent herein, and as such, the application is misconceived. He further contends that the only information as to whether the 4th respondent had paid any consideration to respondents 1 to 3, can be elicited by examining the former, as a witness, and that no interference is warrnated, with the order under revision. He further contends that the only information as to whether the 4th respondent had paid any consideration to respondents 1 to 3, can be elicited by examining the former, as a witness, and that no interference is warrnated, with the order under revision. ( 4 ) THE petitioner filed an application under Order 1 Rule 10 C. P. C. , to implead the 4th respondent herein, as defendant No. 4 in O. S. No. 56 of 2002. As observed in the preceding paragraphs, the basis for the suit is, an alleged agreement, between the petitioner and the respondents 1 to 3, which is said to have provided for execution of sale deed, in respect of the suit schedule property, in the name of the petitioner, or his nominees. The entitlement of the petitioner, under the agreement was dependant upon the payment of consideration, by the 4th respondent herein, in respect of a different extent of land. The petitioner proceeded as though the 4th respondent paid the consideration and thereby, the obligation for the respondents 1 to 3 arose, udner the alleged agreement. It was obviously, in this context, that the petitioner did not implead the 4th respondent herein, as one of the defendants in the suit, when it was filed. ( 5 ) THE respondents 1 to 3 filed a written-statement, denying the very existence of an agreement, relied upon by the petitioner, as well as any payment, by the 4th respondent. This, obviously, necessitated the petitioner, to establish his case, that the 4th respondent made payment to respondents 1 to 3. ( 6 ) IN view of the background of the facts referred to above, it emerges that respondents 1 to 3 are necessary parties to the suit, since the petitioner claimed specific relief against them. Even if the facts pleaded by the petitioner, in the instant application, are taken as true, the 4th respondent cannot be treated as a necessary party. The reason is that, no releif is claimed against it. However, it is evident that the petitioner laid necessary factual foundation in the plaint, vis--vis the 4th respondent. In para 4 of the plaint, extensive reference is made to an agreement, dated 13-10-1998, as well as the transactions, that were to have taken place, with reference to the 4th respondent. The reason is that, no releif is claimed against it. However, it is evident that the petitioner laid necessary factual foundation in the plaint, vis--vis the 4th respondent. In para 4 of the plaint, extensive reference is made to an agreement, dated 13-10-1998, as well as the transactions, that were to have taken place, with reference to the 4th respondent. Therefore, it can be safely said that the 4th respondent answers the description of proper party, in the context of an application filed under order 1 of Rule 10 C. P. C. ( 7 ) IT is true that, as observed by the learned Senior Civil Judge, the information, as to whether the 4th respondent paid any amount to respondents 1 to 3, can be elicited, by examinng the concerned person as a witness. However, the role to be played by a proper party is much wider and larger in scope, than that of a non-party witness. The party to the suit, whether treated as necessary or proper, is required to take a definite stand, by way of pleadings, and that in turn, would have its own bearing on the direction, in which the suit is to proceed. Examination of a party to the suit, with reference to a stand taken by them, in the respective pleadings, is totally different from examining a witnes, who is not a party to the suit. It is not necessary to elaborate the further distinction of the two situations, referred to above. ( 8 ) ANOTHER important factor is that the 4th respondent did not express any opposition for its being impleaded as one of the defendants; and the respondents 1 to 3 would not be exposed to any hardship or inconvenience, if the application of the petitioner is allowed. As dominus litus, the pettiioner can certainly choose the persons with whom, he intends to litigate. ( 9 ) FOR the foregoing reasons, the C. R. P. is allowed, and the order under revision is set aside, and the I. A. No. 469 of 2004 shall stand allowed. There shall be no order as to costs.