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2008 DIGILAW 1124 (AP)

V. Narayana Reddy v. Ani Narayanan

2008-12-30

N.V.RAMANA

body2008
ORDER This C.R.P. is directed against the order dated 13.12.2007, passed by the Principal Junior Civil Judge, Ranga Reddy District, dismissing the application in I.A. No. 4040 of 2007 in O.S. No. 1500 of 2002, filed by the petitioner seeking to get himself impleaded as plaintiff NO.2 in the suit and all interlocutory applications, on the ground that he is a proper and necessary party, and permit necessary amendments. 2. The petitioner filed the present application seeking to implead himself as plaintiff No.2 inter alia stating that the plaintiff originally filed the suit for perpetual injunction against the defendant-respondent No.2 with respect to the suit schedule property on 11.10.2002 and continued to prosecute the same. That the plaintiff-respondent No.1, is a senior citizen aged about 75 years and is now permanently settled in Chennai. He states that he had advanced hand loan of Rs.25,00,000/- to the plaintiff-respondent No.1, which she agreed to repay after sale of the suit schedule property. That thereafter, she proposed and agreed to sell to the suit schedule property to him for a total sale consideration of Rs.35,00,000/-. Accepting the said proposal, the petitioner states that he paid to the plaintiff-respondent No.1 an amount of Rs.8,00,000/- on 04.09.2006 by way of demand draft, and an amount of Rs.2,00,000/- by way of cash on 05.09.2006, and that having received the said amounts, the plaintiff-respondent No.1, executed an agreement of sale-cum-general power of attorney dated 05.09.2006 in his favour. He further states that the plaintiff agreed to receive the balance sale consideration of Rs.25,00,000/- at the time of execution of registered sale deed. On 23.01.2007, the petitioner states that he paid the balance sale consideration of Rs.25,00,000/- to the plaintiff-respondent No.1 by way of demand draft, and the plaintiff-respondent No.1 having encashed the same, executed registered sale deed in his favour on 25.01.2007. That the Municipality has also mutated his name in the records vide proceedings dated 02.02.2007, and since then he is paying the municipal taxes, and that he had also obtained municipal permission for construction of a building, and accordingly constructed a building in the suit schedule property. 3. That the Municipality has also mutated his name in the records vide proceedings dated 02.02.2007, and since then he is paying the municipal taxes, and that he had also obtained municipal permission for construction of a building, and accordingly constructed a building in the suit schedule property. 3. He further states that when he insisted for repayment of the hand loan amount of Rs.25,00,000/- advanced by him, by telephone/addressing letters/notices, the plaintiff-respondent No.1 refused to repay the same, and in fact, gave an indirect indication that she would not prosecute the present suit filed by her against the defendant/respondent No.2. The petitioner states that he having purchased the suit schedule property from the plaintiff-respondent No.1 become the owner thereof and had constructed a building therein after obtaining necessary permission from the Municipality, and having regard to the fact that the original plaintiff-respondent No.1 gave an indication that she is not interested in prosecuting the suit against the defendant, he should be permitted to get himself impleaded in the suit and prosecute the suit, else the purchase of the suit schedule property made by him would be frustrated and he will be put to irreparable loss and injury. Hence, he contended that the Court below committed an error in dismissing the present application tiled by him seeking to implead as plaintiff No.2 in the suit, prayed that the impugned order be set aside, and the C.R.P. be allowed. 4. The plaintiff, who was arrayed as respondent No.1 did not file counter. 5. The defendant, who was arrayed as respondent No.2 filed counter inter alia stating that the husband of the plaintiff/respondent No.1, namely Wg. Cdr. B.G. Narayanan (Retd.) were colleagues and friends. That prior to his retirement, the husband of plaintiff-respondent No.1, was allotted the suit schedule property, Plot No. 117 (New) B-65, (Old), Vayupuri, Air Force Officers Co-operative Housing Society Limited, vide registered document No. 3323/68,dated 15.11.1968. That the husband of plaintiff-respondent No.1 approached him for selling the suit schedule property in the last week of December, 1980. However, he agreed to sell the suit schedule property to his son, who for certain reasons, sought to purchase the same in the name of his classmate and colleague, namely Sqn. Ldr. A.V. Pal. Accordingly, the son of the defendant-respondent No.2 paid an amount of Rs. However, he agreed to sell the suit schedule property to his son, who for certain reasons, sought to purchase the same in the name of his classmate and colleague, namely Sqn. Ldr. A.V. Pal. Accordingly, the son of the defendant-respondent No.2 paid an amount of Rs. 3,000/- and also Rs.5,650/- by way of demand draft on 20.05.1981, and further an amount of Rs.18,855/- through the brother-in-law of defendant-respondent No.2 to the husband of the plaintiff-respondent No.1. The husband of the plaintiff-respondent No.1, having received the said amounts, passed stamped receipts and handed over the original sale deed, possession certificate and executed a registered power of attorney vide document No. 759/81, dated 16.06.1981. Subsequently, he executed an agreement of sale dated 28.03.1987 in favour of his son, namely Sri. Y. Gopinath, on the basis of general power of attorney, executed by the husband of the plaintiff-respondent No.1 in his favour. 6. He states that the plaintiff-respondent NO.1 despite being aware and having knowledge of all the above facts, filed the present suit falsely pleading that her husband executed Will in her favour on 14.12.1961 bequeathing all his properties, both movable and immovable acquired and to be acquired during his lifetime. He states that he is in possession of the original sale deed, that he has already filed xerox copy of the same, and would produce the original as and when called for by the Court. That the plaintiff/respondent No.1 had taken a contradictory stand in her chief-examination. He states that the suit schedule property is in possession of his son, and the petitioner knowing fully well that a suit is pending before the Court, yet had purchased the same. He states that the petitioner claims to have purchased the suit schedule property for Rs.35,00,000/-, while the market value of the land is Rs.77,85,000/-. The husband of the plaintiff-respondent No.1, died leaving behind the plaintiff-respondent No.1, his two sons and one daughter as his legal heirs. Therefore, the plaintiff-respondent No.1 is not the only legal heir of her late husband. The petitioner is a land grabber. He by misrepresenting the facts, had obtained building construction permission from the Municipality. He states that his son had lodged a complaint against the petitioner, but the police refused to register any case on the ground that it is a civil matter. The petitioner is a land grabber. He by misrepresenting the facts, had obtained building construction permission from the Municipality. He states that his son had lodged a complaint against the petitioner, but the police refused to register any case on the ground that it is a civil matter. As of today, his son is in authorized possession of the suit schedule property, and that he had initiated proceedings against the plaintiff/respondent No.1, Sub Registrar, Malkajgiri, Municipal Commissioner, Municipality and the President and Secretary of the Air Force Officers Co-op. Housing Society Limited, on the ground that they without verifying the documents, have registered the plot and granted necessary permissions for construction of building. He states that neither the plaintiff-respondent No.1 nor the petitioner have any right to alienate the suit schedule property in favour of any third party. In fact, the petitioner taking advantage of the power of attorney executed by the plaintiff-respondent No.1 in his favour, without knowledge to the plaintiff-respondent No.1, had got the sale deed executed in his favour by creating fake documents. Therefore, no validity to the said sale deed can be attached. He states that the present petition filed by the petitioner is not maintainable under law because he is not in peaceful possession and enjoyment of the suit schedule property and that he is not a necessary party and prayed that the petition be dismissed. 7. The Court having heard the learned counsel for the petitioner-proposed plaintiff No.2 and the learned counsel for the defendant-respondent No.2, by the order impugned in the C.R.P., dismissed the application filed by the petitioner praying to permit him to get himself impleaded as plaintiff No.2 in the suit holding that the petitioner who is a subsequent purchaser cannot be treated as a necessary or property party in a suit for injunction. 8. 8. The learned counsel for the petitioner submitted that the petitioner having purchased the suit schedule property under registered sale deed from its original owner, and he having become the rightful owner thereof, acquired interest therein, and inasmuch as the plaintiff-respondent No.1, had indicated that she is not interested in prosecuting the suit filed by her against the defendant-respondent No.2, having regard to the provisions of Order I Rule 10 read with Order XXII Rule 10 C.P.C. is entitled to be impleaded as plaintiff NO.2 in the suit, but the Court below committed an error in dismissing the application filed by him seeking to permit him to get himself impleaded as plaintiff No.2 in the suit. 9. On the other hand, the learned counsel for the defendant-respondent No.,2 supported the impugned order. He submitted that the plaintiff-respondent NO.1 filed the suit in the year 2002. The petitioner did not disclose any cause of action against the defendantrespondent NO.2 in the main suit. According to the petitioner, the plaintiff-respondent NO.1 had executed agreement of sale-cum general power of attorney dated 05.09.2006, and thereafter, sale deed was executed on 25.01.2007, and if according to the petitioner, the plaintiff-respondent No.1, is not evincing interest to prosecute the suit, affecting his interest, his remedy is elsewhere. In fact, the petitioner has not filed any of the documents to substantiate his pleas. In fact, the son of the defendant-respondent NO.2 is in possession of the suit schedule property, and in a suit for injunction, subsequent purchaser cannot be added as a plaintiff. In support of his argument, he placed reliance on a judgment of this Court in Major P. T. Choudary v. Mohammed Abdul Basheer Khan and others. 10. In the facts and circumstances of the case and in the light of the arguments advanced on behalf of the respective parties, the only question that arises for consideration in the C.R.P. is - Whether the petitioner, who claims to be a subsequent purchaser of the suit schedule property, can be added as one of the plaintiffs in a suit for injunction? 11. To consider this question, it would be appropriate to refer to the provisions of Order I, Rule 10(2) of the Code of Civil Procedure, 1908, which deals with the power of the Court to strike out or add parties. 11. To consider this question, it would be appropriate to refer to the provisions of Order I, Rule 10(2) of the Code of Civil Procedure, 1908, which deals with the power of the Court to strike out or add parties. The said provision reads as follows: 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. 12. The object of sub-rule (2) of Rule 10 of Order 1 of C.P.C. is to bring before the Court all the persons who are parties to the disputes relating to one subject matter so that the disputes may all be determined at the same time without delay, inconvenience and expense of separate actions, so that the Court may be in a position to adjudicate upon and settle all the questions involved in the suit and the disputes between the parties attain finality. Order 1, Rule 10(2) of C.P.C. confers wide discretion upon the Court. The provision is expressly provided in the C.P.C. so as to meet the situation and ensure that rendering of justice to the parties is not hampered. The ambit, scope and effect of the sub-rule (2) of Rule 10 of Order I of C.P.C. rule has been considered in numerous cases. If the Court is satisfied that party sought to be impleaded is proper and necessary party for adjudication of the issues and such party has a direct interest in the subject matter of the litigation, invariably it is required to implead such a person, as a party to the proceedings. In exercise of discretion, the Court can direct the plaintiff, though the plaintiff is 'dominus litis' to implead such person as a necessary party to the proceedings. In exercise of discretion, the Court can direct the plaintiff, though the plaintiff is 'dominus litis' to implead such person as a necessary party to the proceedings. Rule 10(2) of Order I of C.P.C. gives wide discretion to the Court to meet every case of defect of parties and ensure that such defect is not affected by the inaction of the plaintiff to bring necessary parties on record. The Courts have considered who is a necessary party to the suit/proceedings on several occasions. The necessary party is one without whom no effective adjudication can be made, and the Court is empowered to join such a party, in the intermediary stage, if he shows that he has cause of action with regard to the subject matter. The primary object that must be kept in mind while ordering application to implead .a particular party is to avoid multiplicity of proceedings. 13. The plaintiff being 'dominus litis' is not expected to sue every possible adverse person in the same suit. Normally, the plaintiff would proceed against a person against whom he wishes to proceed. But, however, by virtue of Order 1 Rule 10(2) of C.P.C., at any stage of the proceedings, the Court may order addition of the parties, even though the plaintiff is not interested to implead such person as a party to the proceedings. The question of impleadment of a party to the proceedings, has to be determined on the touchstone of Order 1 Rule 10(2), which provides that only a necessary or proper party, alone to be joined/included as a party to the proceedings. The clear language in the rule indicates that the plaintiff/petitioner in the proceedings is prevented from contending that a particular person cannot be impleaded as a defendant/respondent even in a case where presence of such party is necessary to enable the court to determine the subject matter in an effective manner and to avoid multiple actions. 14. The apex Court in Ramesh Hirachand Kundan Mal v. Municipal Corporation of Greater Bombay dealt with the provisions of Order I Rule 10 of C.P.C. and held that in exercise of the said jurisdiction, the Court can direct the plaintiff, though he is 'dominus litis', to implead the persons as a necessary party to the proceedings. In Aluji Momonji and Co. In Aluji Momonji and Co. v. Lalji Mavji and others, the apex Court while reviewing the entire case law governing the ambit, scope and effect of Order 1 Rule 10 of C.P.C., came to the conclusion that where the presence of the respondent is necessary for complete and effective adjudication of the dispute, though no relief is sought against him, yet he is a proper party to the matter. That the necessary party is one without whose presence, no effective and complete adjudication of the dispute can be made and no relief granted. In Amit Kumar Shaw v. Farida Khatoorf, the apex Court had an occasion to consider the question of impleadment of a transferee pendente lite in a title suit and the permissibility and discretion of the Court, when to be exercised and when the question relating to grant of leave, can be considered. Having considered the said questions, It held that the object of Order I Rule 10 of C.P.C. is to discourage contests on technical pleas and to save honest and bona fide claimants from being non-suited. The Court can exercise the power to strike out or add parties at any stage of the proceedings. A person may be added as a party to the suit, when he ought to have been joined as plaintiff or defendant and is not joined and when without his presence, the question in the suit cannot be completely decided. The apex Court held that the question that is required to be considered is whether a right of a person would be affected, if he is not added as a party. Such right, however, will necessarily include an enforceable legal right. The apex Court in para 14 of the said decision held: An alienee pendent lite is bound by the final decree that may be passed in the suit. Such an alienee can be brought on record both under this rule as also under Order 1 Rule 10. Since under the doctrine of lis pendens a decree passed in the suit during the pendency of which a transfer is made binds the transferee, his application to be brought on record should ordinarily be allowed. 15. Such an alienee can be brought on record both under this rule as also under Order 1 Rule 10. Since under the doctrine of lis pendens a decree passed in the suit during the pendency of which a transfer is made binds the transferee, his application to be brought on record should ordinarily be allowed. 15. In Major P. T. Choudary v. Mohammed Abdul Basheer Khan and others, a learned Judge of this Court dismissed the application for impleading third party as plaintiff and reversed the order of the trial Court allowing the said application with an observation that the third party can file a separate suit. The question that was considered in the said case is whether the subsequent purchaser in the suit for injunction can be added as a plaintiff. In fact, the Court did not consider the aspect relating to whether such matter in dispute could be resolved without impleading a person sought to be impleaded. It is also did not consider the question whether he is a proper and necessary party and his interests are going to be affected in case he is not added as a party to the proceedings. In view of the same, the said judgment relied upon by the learned counsel for the respondent, has no application to the facts of the present case, as in that case, the question as to whether it was a fit case to exercise the discretion conferred under Order I Rule 10 of C.P.C. or not, was not determined. 16. In Kesari Goutham Reddy v. Velpula John Victor Macaulay and anothes, the question that arose for consideration before this Court was whether a purchaser pendente lite the proceedings can come on record to safeguard his interests in the pending litigation, and whether it would not be just and proper to dismiss such an application. This Court followed the judgments of the apex Court in Raj Kumar v. Sardari Lar and Amit Kumar Shaw v. Farida Khatoon (supra 4), and held that a person sought to be impleaded is a proper and necessary party to the proceedings because his interests are going to be affected it he was not added as party to the proceedings. 17. 17. The analogy that is being confirmed from time to time indicates that the criteria for impleadment of a party under the provisions of Order 1 Rule 10 of C.P.C. is whether such proceeding or suit can be determined without impleading a party who is sought to be impleaded and for rendering complete justice such party is required to be added to such proceedings and if such party is not impleaded, the judgment which is going to be rendered has an effect on such person, is required to be considered. The other aspect the Court is required to keep in mind is whether if such a party is not added to the proceedings, whether it would lead to multiplicity of proceedings. Upon consideration of the above said principles, the apex Court held in the above said judgments that if a party sought to be impleaded is a proper and necessary party to the proceedings, they can implead at any stage of the proceedings. 18. Coming to the case on hand, the petitioner is said to have purchased the suit schedule property from plaintiff-respondent NO.1 during the pendency of the suit, and since plaintiff-respondent No.1, having sold the suit schedule property to the petitioner, is said to have indicated of non-pursuing the suit, and the petitioner being the subsequent purchaser and having acquired interest in the suit schedule property, and having regard to the discussion made above, I am of the considered opinion that the petitioner should be permitted to get himself impleaded as plaintiff No.2 in the present suit for injunction filed by plaintiff-respondent No.1 against the defendant-respondent No.2, to defend his interest therein, which would not only be in the interest of justice but would also avoid multiplicity of the proceedings between the parties, petitioner and defendant-respondent No.2 and plaintiff respondent No.1. 19. In the result, the C.R.P. is allowed. The order of the Court below impugned in the C.R.P. is set aside, and the Court below shall implead the petitioner as plaintiff No.2 in the present suit. No costs.