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2008 DIGILAW 580 (AP)

Mada Nageswararao v. Potta Bharthi

2008-07-29

P.S.NARAYANA

body2008
ORDER: The Civil Revision Petition was admitted on 15-2-2008 and C.R.P.M.P.No.456/2008 on 15-2-2008, this Court made the following Order:- "I see no reason to pass any orders at this stage. Notice." 2. Since the interim order was not granted by this Court and in view of the urgency pleaded by the parties for the disposal of the Civil Revision Petition, on hearing the Counsel on record, the Civil Revision Petition is being disposed of finally. 3. Sri Subramanya Narsu, the learned Counsel representing revision petitioner had taken this Court through the respective stands taken by the parties and would maintain that the learned I- Additional District Judge, Vizianagaram, should have allowed the application to implead the 2nd respondent as 2nd defendant in the suit in view of the 1st issue framed in the suit namely "whether the plaintiff has executed an agreement dt.9-1-2000 in favour of the defendant's brother Mada Suryanarayana alias Suresh authorizing him to manage the suit theatre". The learned Counsel also would maintain that in view of the specific contention of the petitioner that he paid the rent to the said Suryanarayana who was appointed as agent of the 1st respondent relating to the suit theatre by the 1st respondent-plaintiff, the application for addition of party should have been ordered instead of dismissing the same. The learned Counsel also would maintain that the suit O.S.No.9/2003 on the file of Principal Junior Civil Judge, Parvathipuram filed by the 2nd respondent challenging the cancellation of agreement, under which he was appointed as Manager by the 1st respondent -plaintiff to manage the suit theatre was decreed and he has been continuing to be in management of suit theatre. The learned Counsel also would submit that the suit filed by the 1st respondent - plaintiff against the petitioner is for recovery of possession and arrears of rent and in view of the specific defence taken by the petitioner that he has been paying rents to the 2nd respondent regularly and there are no arrears, the presence of 2nd respondent is necessary for proper and effective adjudication of all the disputes involved in the suit. The learned Counsel also would maintain that the other specific grounds raised like default in payment of rent, these aspects also cannot be decided in the absence of the proposed party and hence, the dismissal of the application is totally unjustified. The learned Counsel also would maintain that the other specific grounds raised like default in payment of rent, these aspects also cannot be decided in the absence of the proposed party and hence, the dismissal of the application is totally unjustified. The learned Counsel also placed strong reliance on certain decisions. 4. Sri Simhadri, the learned Counsel representing 2nd respondent-proposed party while supporting the contentions advanced by Sri Subramanya Narsu, the Counsel representing the petitioner, would maintain that the mere fact that the petitioner and the 2nd respondent are brothers may not have any consequence at all in deciding the application for impleading the party. The learned Counsel also would maintain that in the light of the specific issue which had been already settled, if the findings are to be recorded in relation thereto, the presence of the proposed party before the Court as a party in the suit would be highly essential and in his absence, any findings relating thereto cannot be recorded. The learned Counsel also had drawn the attention of this Court to the language employed in Order I Rule 10(2) of the Code of Civil Procedure and would maintain that for effective and proper adjudication of questions in controversy if a party is necessary to be brought on record, such party to be added as a party irrespective of the fact whether the 1st respondent-plaintiff is willing for the same or not, the said expression to be liberally construed. The learned Counsel also had taken this Court through the relevant portions of the Order impugned in the Civil Revision Petition and also placed strong reliance on certain decisions. 5. Sri Rama Rao Ghanta, the learned Counsel representing the 1st respondent- plaintiff, the contesting respondent in the Civil Revision Petition, however would submit that if the nature of the suit to be taken into consideration, the proposed party is not a necessary party. The learned Counsel also would maintain that after P.W.1 was examined, this application had been thought of only with a view to delay the further proceedings in the suit. The learned Counsel also pointed out that the proposed party is none other than the brother of the defendant. The learned Counsel also would maintain that after P.W.1 was examined, this application had been thought of only with a view to delay the further proceedings in the suit. The learned Counsel also pointed out that the proposed party is none other than the brother of the defendant. The Counsel further pointed out that the proposed party had not made any application on the ground that his interest would be affected to come on record and though the application was dismissed, the proposed party had not preferred the present Civil Revision Petition, but however, the defendant as petitioner filed the said application to bring on record the 2nd respondent- the proposed party in the said application. The learned Counsel also had drawn the attention of this Court to an order made by this Court in C.R.P.No.86/2005 and yet another order made in Tr.C.M.P.Nos.492, 502, 506, 207, 208, 520 and 521 of 2005. While further elaborating his submissions, the learned Counsel would maintain that in the light of the respective pleadings of the parties, this specific issue, on the strength of which the application had been filed, would not fall under either the material propositions of fact or law asserted by one party and denied by the other party. It is the duty of the Court to settle the issues. Merely because an issue had been settled, that cannot be taken advantage of to move an application under Order 1 Rule 10(2) of the Code of Civil Procedure to further delay the proceedings. At any rate, the learned Counsel would maintain that inasmuch as other suits are pending, this question needs no consideration in the present suit in the light of the scope and ambit of the respective pleadings of the parties. Hence, the dismissal of the application by the learned I-Additional District Judge, Vizianagaram cannot be found fault in any way. The learned Counsel also placed strong reliance on certain decisions to substantiate his submissions. 6. Heard the Counsel on record and perused the reasons which were recorded by the learned I-Additional District Judge, Vizianagaram in Order dt.26-11-2007 made in I.A.No.2017/2007 in O.S.No.7/2006. 7. The learned Counsel also placed strong reliance on certain decisions to substantiate his submissions. 6. Heard the Counsel on record and perused the reasons which were recorded by the learned I-Additional District Judge, Vizianagaram in Order dt.26-11-2007 made in I.A.No.2017/2007 in O.S.No.7/2006. 7. The revision petitioner-the defendant in O.S.No.7/2006 on the file of I- Additional District Judge, Vizianagaram filed I.A.No.2017/2007 under Order 1 Rule 10 of the Code of Civil Procedure to implead one M.Suryanarayana alias Suresh as 2nd defendant in the suit as he is a necessary and proper party for effective and complete adjudication of the matter in issue, more particularly the 1st issue in the suit. A lengthy affidavit was filed in support of the application stating several facts. The 1st respondent - plaintiff resisted the said application by filing counter. The 2nd respondent - proposed party filed counter taking a stand that his presence is necessary for the purpose of deciding the 1st issue and this proposed party also had taken a stand that he was authorized by the plaintiff to receive rents from the petitioner as per the agreement dt.91-2000 and the said agreement also was referred to in the lease deed dt.4-10-2000, which was executed in favour of the petitioner by the plaintiff and her family members and the plaintiff has no right to cancel his agreement dt.9-1-2000 unilaterally. It was also stated that the proposed party filed O.S.No.96/2002 on the file of the Principal Junior Civil Judge, Parvathipuram, against the plaintiff, her husband and her son to protect his lawful possession of the suit theatre as its Manager and the said suit was decreed in his favour on 23-7-2007 after contest. The learned I-Additional District Judge, Vizianagaram, having formulated the point for consideration at para 6, recorded reasons in detail at para 7 and ultimately dismissed the application with costs. It was also recorded by the learned Judge that it is represented by the learned Advocate for the plaintiff that the defendant and his brother have been filing several vexatious petitions one after another with a view to drag on the time and to run the theatre without paying the rents. The learned Judge also further observed that there are no bona fide grounds in filing the petition and ultimately dismissed the application as aforesaid with costs. Aggrieved by the same, the present Civil Revision Petition had been preferred. 8. The learned Judge also further observed that there are no bona fide grounds in filing the petition and ultimately dismissed the application as aforesaid with costs. Aggrieved by the same, the present Civil Revision Petition had been preferred. 8. Order I Rule 10(2) of the Code of Civil Procedure dealing with Court may strike out or add parties reads as hereunder:- "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." 9. The 1st respondent filed the suit O.S.No.7/2006 praying for eviction of revision petitioner-defendant from the plaint schedule theatre and for recovery of arrears of rent, damages and other reliefs. The revision petitioner - defendant filed written statement taking specific stand that her husband and her son jointly executed an agreement dt.9-1-2000 in favour of his brother M.Suryanarayana authorizing him to manage the suit theatre. The plaintiff had leased out the theatre to him on 4-10-2000 on a daily rent of Rs.2,200/- after taking security of Rs.9 lakhs. He filed a suit O.S.No.1/2003 for recovery of the said deposit when the plaintiff failed to repay the same. His brother Suryanarayana also filed O.S.No.9/2003 when the plaintiff unilaterally cancelled the agreement dt.9-1-2000 in favour of his brother Suryanarayana. Thus, he has been continuing as tenant of the theatre, as per certain orders made by this Court in certain Writ Petitions and his brother also is continuing as Manager of the theatre. Since the defendant had taken the specific plea that the he paid the rents to his brother as per the agreement executed by the plaintiff on 9-1- 2000 and the plaintiff had taken a stand that the said agreement was duly cancelled by her, may be that in the light of the stands taken by the parties, the Court thought it fit to settle such an issue, on the strength of which the present application had been thought of. It is needless to say that it is the duty of the Court to settle the issues in the light of the material propositions of fact and law, which may be averred in the plaint and such material propositions of fact and law which may be averred in the written statement i.e., the respective pleadings of the parties. It is not in serious controversy that relating to this issue, which had been settled in this suit, yet another suit already had been filed. As can be seen from the order made in Tr.C.M.P.Nos.492, 502, 506, 207, 208, 520 and 521 of 2005 it appears several suits are pending between the parties and third parties as well. 10. The principal question to be decided in the present Civil Revision Petition is whether the impugned order dismissing the application for impleadment of the party to be disturbed or to be confirmed in the facts and circumstances of the case? 11. At the outset it may be stated that there may be several factual controversies between the parties wherein such factual controversies are to be established by the respective parties by adducing necessary evidence and all such parties who may be otherwise material witnesses always necessarily need not be brought on record. In the present case, on the strength of the issue, the revision petitioner - defendant filed the application aforesaid to implead his brother as a party - 2nd defendant in the suit - the 2nd respondent in the Civil Revision Petition. This application had been dismissed and the self-same party had preferred the present Civil Revision Petition as well. 12. Order 14 Rule 1 of the Code of Civil Procedure reads as hereunder:- "Framing of issues:- (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (2) Material propositions are those propositions of law or fact which a plaintiff must alleged in order to show a right to sue or a defendant must alleged in order to constitute his defence. (3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. (4) Issue are of two kinds: (a) issue of fact, (b) issue of law. (3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. (4) Issue are of two kinds: (a) issue of fact, (b) issue of law. (5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after examination under rule 2 of Order X and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. (6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence." 13. Order 14 Rule 5 of the Code of Civil Procedure reads as hereunder:- "Power to amend and strike out issues:- (1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. (2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced. 14. Strong reliance was placed on the decision of the Division Bench of this Court in KHAJA ABDUL v. MAHABUB SAHEB wherein it was held that the expression "settle all the questions involved in the suit" used in Order 1, R.10 (2) C.P.C. is susceptive of a liberal and wide interpretation so as to take in the final adjudication of all the questions pertaining to the subject matter thereof. Such wide interpretation warranted by the language employed by O.1, R.10(2) C.P.C. would certainly enable the Court to avoid conflicting decisions on the same questions and, at the same time, finally and effectually put an end to litigation respecting them. Such wide interpretation warranted by the language employed by O.1, R.10(2) C.P.C. would certainly enable the Court to avoid conflicting decisions on the same questions and, at the same time, finally and effectually put an end to litigation respecting them. The framers of this rule must be held to have intended that all the material questions common to the parties to the suit and to the third parties should be tried once and for all and the Court is invested to secure the aforesaid result with an ample judicious discretion to add parties which are necessary or proper in this regard. The narrow interpretation of settlement of all the questions involved in the suit between the parties alone would amount to adding something into this provision which was of the specifically introduced by the Sovereign Parliament. If the narrow view was intended by the legislature, nothing would have prevented them from using the words "between the parties". The crucial test for the addition or otherwise of a particular party as defendant or plaintiff is which the presence of such party is necessary or at least proper without whom there can be no effective and final adjudication of all issues involved in the suit with regard to the same subject matter. 15. Reliance also was placed on the decision in RAMESH HIRACHAND KUNDANMAL v. MUNICIPAL CORPORATION OF GREATER BOMBAY AND OTHERS2 wherein the Apex Court observed that the Court has judicial discretion which it has to exercise having regard to facts and circumstances of the case and in exercise of this discretion Court can direct a plaintiff, though dominus litis, to implead a person as a necessary party defendant. 16. Strong reliance also was placed on MULA KALAVATHI AND OTHERS v. SUDDALA NARAYANA AND OTHERS wherein at paras 4 and 5 it was observed as hereunder:- "It is not in dispute that the petitioners hold property in the immediate neighbourhood of the suit schedule property. It is also a matter of record, that the petitioners filed objections and representations before respondents 2 and 3, to the permission accorded to the 1st respondent, and the same resulted in cancellation of the construction permission. When the very cause of action for filing of the suit was, the very cancellation of the construction permission, it is rather unthinkable that the petitioners cannot be treated as proper and necessary parties to the suit. When the very cause of action for filing of the suit was, the very cancellation of the construction permission, it is rather unthinkable that the petitioners cannot be treated as proper and necessary parties to the suit. Whatever may have been the justification for the 1st respondent in filing the suit, without impleading the petitioners, knowing fully well that the permission, in his favour, was cancelled at their instance, the trial Court ought to have ordered the I.A.No.2121 of 2002, almost unhesitatingly. The principle, referred to above, by the trial Court, in its order, applies to cases where an application, under Order 1 Rule 10 C.P.C. is filed by a plaintiff, in the suit. Those parameters cannot be applied to an application filed by a third party. In such cases, the paramount consideration would be, whether the proposed party would suffer any detriment, or receive any impact on account of the adjudication in the suit. Viewed from the said angle, it becomes clear that the petitioners are not only proper, but also necessary parties to the suit." 17. Reliance also was placed on Ch.SEETHARAMA SWAMY v. CH.RAMACHANDRA RAO. Further strong reliance was placed on M.KUPPUSWAMI NAIDU v. V.CHANDRASEKHAR REDDI AND OTHERS and KUMARI KANCHNA v BISHAN DAS. This is a suit for eviction and arrears of rent and the other appropriate reliefs which had been prayed for in the suit by the 1st respondent - plaintiff. The revision petitioner - defendant is contesting the suit. No doubt, in relation to default and also the arrears of rent and damages, this question of payment to the brother also may have to be gone into in the suit. But however, this may not be the material propositions of fact and law, and this settlement of issue in this regard may not be essential since it is the duty of the Court to settle the issues, the Court is expected to be cautious while settling such issues which may be necessary for the purpose of deciding the suit and not beyond thereto. It is needless to say that the Court has ample power either to delete an issue or recast an issue or strike of an issue - CHIKKAVEEREGOWDA v. DEVEGOWDA and SHANTARAM v. ANANT. 18. It is needless to say that the Court has ample power either to delete an issue or recast an issue or strike of an issue - CHIKKAVEEREGOWDA v. DEVEGOWDA and SHANTARAM v. ANANT. 18. In the light of the same, especially in view of the fact that the revision petitioner had filed this application on the strength of such issue which had been settled, this Court is satisfied that such issue cannot be said to have arisen out of the material propositions of fact and law between the parties, this Court as revisional Court is directing for deletion of that issue. It is made clear that, however, this need not be taken as preventing either of the parties from adducing evidence on these aspects as well. 19. With the above observations, this Court makes it clear that the impugned order does not suffer from any illegality whatsoever but however since the deletion of the issue is being directed, the Civil Revision Petition is disposed of accordingly. No costs.