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Telangana High Court · body

2020 DIGILAW 888 (TS)

P. Uday Kumar v. Gourisetty Narsimha Rao

2020-12-28

G.SRI DEVI

body2020
ORDER : G. Sri Devi, J. 1. C.R.P. No. 768 of 2020 is filed, aggrieved by the order, dated 02.01.2020, passed in I.A. No. 679 of 2016 in O.S. No. 657 of 2009 on the file of the II-Additional Chief Judge, City Civil Court, Hyderabad, wherein the application filed by the petitioner/plaintiff to implead the proposed respondents as defendants 3 to 5 in the main suit, was dismissed. 2. C.R.P. No. 767 of 2020 is filed, aggrieved by the order, dated 02.01.2020, passed in I.A. No. 680 of 2016 in O.S. No. 657 of 2009 on the file of the II-Additional Chief Judge, City Civil Court, Hyderabad, wherein the application filed by the petitioner/plaintiff to permit him to carry out the amendment to the plaint, was dismissed. 3. Since the issue involved in both the Civil Revision Petitions filed under Article 227 of the Constitution of India is interconnected, they are being disposed of by this common order. 4. The facts in brevity are as under: The petitioner/plaintiff filed O.S. No. 657 of 2009 seeking to declare him as the absolute owner of the suit scheduled property bearing No. 3-2-351, admeasuring 740 square yards, comprising of old house, rooms and a shed bounded by compound wall and gate situated at Chappal Bazar, Hyderabad and to grant perpetual injunction restraining the defendants from alienating the property, creating third party interest, changing the physical structure and interfering with the peaceful possession of the same. During pendency of the suit i.e., in the year 2013, the proposed respondents came to the petitioner/plaintiff stating that they are the owners of the property having purchased the same from the father of the defendants and furnished copies of registered sale deeds and in turn the plaintiff informed them that he has already filed the declaration suit in O.S. No. 657 of 2009 against the defendants and also obtained interim injunction vide orders in I.A. Nos. 3440 and 2441 of 2009 and the same are subsisting. Thereafter, the petitioner/plaintiff filed I.A. No. 2311 of 2013 seeking to implead the proposed respondents as defendants 3 to 5, which was allowed on 17.07.2014 and aggrieved by the same, defendants 1 and 2 preferred C.R.P. No. 3276 of 2014 before this Court. 3440 and 2441 of 2009 and the same are subsisting. Thereafter, the petitioner/plaintiff filed I.A. No. 2311 of 2013 seeking to implead the proposed respondents as defendants 3 to 5, which was allowed on 17.07.2014 and aggrieved by the same, defendants 1 and 2 preferred C.R.P. No. 3276 of 2014 before this Court. By an order, 27.03.2015, this Court disposed of the said C.R.P., granting liberty to the petitioner/plaintiff to file a fresh application for adding the proposed respondents as defendants 3 to 5 in the suit and to seek consequential amendment of the pleadings including the prayer clause. Therefore, the petitioner/plaintiff filed the above two petitions to implead the proposed respondents as defendants 3 to 5 in the suit and to permit him to carry out the amendment to the plaint as mentioned in the petition. 5. Respondents 1 and 2 herein, who are the defendants 1 and 2, filed counter affidavit inter alia contending that the petitions are not at all maintainable as the petitioner/plaintiff on one hand states that his father purchased the scheduled property and on the other hand, he became the owner by adverse possession; that they are not aware of the complaint lodged to the Commissioner of Police and that they got issued legal notice to the petitioner/plaintiff through their Counsel and got reply notice. It is also stated that respondents 1 and 2 did not file R.C. No. 274 of 2009 before the IV-Additional Rent Controller and in fact, the petitioner/plaintiff is a tenant only in a North-eastern portion of the suit scheduled property consisting of two rooms and the remaining portion on the western side of the suit scheduled property is in actual physical possession of the respondents 1 and 2, in which another tenant by name Jeevan Jyothi Dyeing and Printing Works, was in possession as tenant. It is further stated in the counter that the allegation that N. Suresh and N. Ganesh threatened him that they are the owners of the property is absolutely false one and their claim is based on forged documents. Therefore, there is no need to implead the proposed respondents as defendants in the main suit. 6. It is further stated in the counter that the allegation that N. Suresh and N. Ganesh threatened him that they are the owners of the property is absolutely false one and their claim is based on forged documents. Therefore, there is no need to implead the proposed respondents as defendants in the main suit. 6. Proposed respondents filed counter, inter alia, contending that there are disputes between them and the petitioner since a long time; that in fact the tenancy of the suit is known to them by the plaintiff against the defendants, who are not having any right, title over the suit scheduled property; that their mother Padmavathi purchased the suit scheduled property vide document bearing No. 3336/1978, dated 28.08.1978 from one G. Ramaiah and since then she was in peaceful possession of the same and thereafter she used to reside in Khammam since a long time; that the petitioner/plaintiff is a trespasser in the suit scheduled property; that the claim of the respondents 1 and 2 is also not tenable one and to avoid further litigation they may be impleaded as defendants as they are proper and necessary parties to the suit. 7. After considering the rival submissions, the trial Court dismissed both the petitions on the ground that the petitioner/plaintiff failed to follow Rule 28 of Civil Rules of Practice, which is gross abuse of process of law. Aggrieved by the same, the present Civil Revision Petitions have been filed by the plaintiff. 8. Heard learned Counsel for the petitioner/plaintiff, learned Counsel for the respondents 1 and 2; and perused the record. 9. Aggrieved by the same, the present Civil Revision Petitions have been filed by the plaintiff. 8. Heard learned Counsel for the petitioner/plaintiff, learned Counsel for the respondents 1 and 2; and perused the record. 9. Learned Counsel for the petitioner/plaintiff reiterating the contentions made in the affidavit, would submit that initially the trial Court allowed I.A. No. 2311 of 2013 filed by the petitioner/plaintiff seeking to implead the proposed respondents as defendants 3 to 5 on 17.07.2014 and aggrieved by the same, the defendants preferred C.R.P. No. 3276 of 2014 before this Court; that by an order, 27.03.2015, this Court disposed of the said C.R.P. granting liberty to the plaintiff to file a fresh application for adding the proposed respondents as defendants 3 to 5 in the suit and to seek consequential amendment of the pleadings including the prayer clause; that in pursuance of the same, the petitioner/plaintiff filed the present two petitions i.e., I.A. No. 679 of 2016 for impleadment of the proposed respondents and I.A. No. 680 of 2016 for consequential amendments of the pleadings, however, the trial Court has come to an erroneous conclusion that the plaintiff has not filed the petition in terms of Rule 28 of Civil Rules of Practices. He further submits that the trial Court ought to have seen that the suit is a comprehensive suit for declaration of title and that the proposed respondents are also claiming title of the same suit scheduled property and as such there was no bar in getting the said respondents impleaded in the case as the same is essential for proper adjudication of the suit. He further submits that no prejudice would be caused to the defendants 1 and 2, if the proposed respondents are impleaded as defendants 3 to 5. 10. He further submits that no prejudice would be caused to the defendants 1 and 2, if the proposed respondents are impleaded as defendants 3 to 5. 10. Learned Counsel for the respondents 1 and 2/defendants filed written submissions stating that the father of respondents 1 and 2 purchased the suit scheduled property in the year 1967 and leased out a major portion on the Western side in favour of M/s. Jeevan Jyothi Dyeing and Printing Works, who vacated the premises under the receipt of delivery of possession on 26.05.2007; that apart, the father of the respondents 1 and 2 also leased out a small portion to the father of the petitioner on North Eastern side in the year 1975 under oral tenancy and after the death of the father of the petitioner in the year 2006, the petitioner shifted to Barkathpura and residing there and he did not pay the rents till 2009 and as such respondents 1 and 2 filed R.C. No. 274 of 2009 for eviction and recovery of arrears of rents and that after receipt of the notice from the Rent Controller Court, he filed the above suit to counter blast the said R.C. He further submits that in both the Eviction suit as well as the suit filed by the petitioner, the trial commenced simultaneously and meanwhile, the petitioner, with mala fide intention to grab the other portion, tried to interfere with the possession of the respondents 1 and 2 and as such they filed O.S. No. 4662 of 2009 seeking permanent injunction and obtained orders on merits in I.A. No. 1768 of 2009, dated 18.02.2010 and against the said injunction order, the petitioner has not preferred any appeal and that the injunction order passed has become final. He also submits that R.C. No. 274 of 2009 filed by respondents 1 and 2 was allowed on 19.11.2015 and directed the petitioner to vacate the premises within three months from the date of the order and aggrieved by the same, the petitioner preferred R.A. No. 229 of 2015 and the same was dismissed on 19.06.2017. Against the dismissal of R.A. No. 229 of 2015, the petitioner preferred C.R.P. No. 3973 of 2017 before this Court and the same was dismissed directing the petitioner to vacate the premises by 31.01.2019 and also ordered to pay Rs. Against the dismissal of R.A. No. 229 of 2015, the petitioner preferred C.R.P. No. 3973 of 2017 before this Court and the same was dismissed directing the petitioner to vacate the premises by 31.01.2019 and also ordered to pay Rs. 2,000/- per month to respondents 1 and 2 from 01.01.2018 onwards for use and occupation of the premises, against which the petitioner has not preferred any S.L.P. He further submits that the eviction order issued against the petitioner has not been executed because of the status quo order in O.S. No. 657 of 2009. He also submits that the petitioner sought amendments totally converting the entire case into new case after closing the evidence that too at the time of arguments and by that time the eviction orders are hanging on the head of the petitioner. He further submits that if the proposed parties are impleaded and the amendment of the pleadings are allowed, serious prejudice would be caused to respondents 1 and 2; that the petitioner instead of proving his title as pleaded by him on the basis of adverse possession, sought to implead the unconcerned third parties by creating false and fabricated documents in order to stall the execution proceedings in eviction petition under the guise of status quo order passed in the suit and as such the proposed respondents are neither necessary nor essential parties to the present suit and if the proposed amendment is allowed, the rights of respondents 1 and 2 would be adversely affected. He also submits that if the proposed respondents are impleaded and the suit is amended, de nova trial has to be conducted, such as, opportunity should be given to all the parties, additional written statement of the defendants has to be filed and additional issues have to be settled. He further submits that in Raj Kumar Gurawara v. S.K. Sarwagi and Co. Limited (2008) 14 SCC 364 , the Apex Court held that "post trial amendment cannot be permitted which causes serious prejudice to the defendants" and in New Red Bank Tea Co. Pvt. Limited v. Kumkum Mittal and others (1994) 1 SCC 402 the Apex Court held that "the presence of respondent No. 11 not necessary for effectual and complete adjudication of the suit proceedings initiated by the defendant, those proceedings on the other hand might cause prejudice to the right of the appellant in that suit". Pvt. Limited v. Kumkum Mittal and others (1994) 1 SCC 402 the Apex Court held that "the presence of respondent No. 11 not necessary for effectual and complete adjudication of the suit proceedings initiated by the defendant, those proceedings on the other hand might cause prejudice to the right of the appellant in that suit". Apart from the written submissions, learned Counsel for respondents 1 and 2 would submit that as the petitioner/plaintiff failed to follow Rule 28 of Civil Rules of Practice, the trial Court has rightly dismissed the said applications. 11. The trial Court dismissed the applications mainly on the ground that the petitioner/plaintiff had failed to comply with Rule 28 of the Civil Rules of Practice, which reads as under:- "An application for amendment made under Order I, rule 10. Order VI, Rule 17, or Order XXII of the Code, shall also contain a prayer for all consequential amendments. The Presiding Officer shall reject the application if it is not in accordance with the law or these rules. Provided that verbal corrections may at any time be made in pleadings with permission of the court." 12. As per the said Rule, an application for amendment made under Order I Rule 10, Order VI Rule 17 or Order XXII of the Code shall contain a prayer for all consequential amendments. The Presiding Officer shall reject the application if it is not in accordance with law. The proviso further states that verbal corrections if any may be made at any time in pleadings with permission of the Court. In the instant case, I.A. No. 680 of 2016 was filed under Order VI Rule 17 read with Section 151 of C.P.C. and read with Rule 28 of the Civil Rules of Practice. In the said application, the petitioner/plaintiff sought for consequential amendments of pleadings to the plaint i.e., cause title, heading, Para 6 (A), Para 6 (B), Para 9 (A), Para 10(A) and also prayer portion. Therefore, the petitioner/plaintiff has complied with Rule 28 of Civil Rules of Practice. 13. I.A. No. 679 of 2016 only speaks about adding the proposed respondents as defendants 3 to 5. Before proceedings further, it would be useful to refer to Order I, Rule 10 of C.P.C. which reads as under: Order I. Rule 10. Suit in name of wrong plaintiff. 13. I.A. No. 679 of 2016 only speaks about adding the proposed respondents as defendants 3 to 5. Before proceedings further, it would be useful to refer to Order I, Rule 10 of C.P.C. which reads as under: Order I. Rule 10. Suit in name of wrong plaintiff. (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) 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. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. Where defendant added, plaint to be amended. (4) Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5) Subject to the provisions of the Indian Limitation Act, 1877, Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons." 14. (5) Subject to the provisions of the Indian Limitation Act, 1877, Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons." 14. From a reading of the above said provision, it is clear that sub-rule (2) of Rule 10 of Order-I gives a wider discretion to the Court to meet every case or defect of a party and to proceed with a person who is either a necessary party or a proper party whose presence in the court is essential for effective determination of the issues involved in the suit. 15. The scope and object of Order 1 Rule 10 of C.P.C. was considered in detail by another co-ordinate Bench of this Court in A. Gyaneshwar Rao v. Mahmood Shaireef and another AIR 1982 AP 155 (1) wherein it has been held as under: "10. The principles that could be said to emerge in regard to application of the provisions enacted in sub-Rule (2) of Rule 10 of O. 1. C.P.C. and in particular the expressions "whose presence before the court may be necessary" and "in order to enable the court to effectively and completely adjudicate upon and settle all then question involved in the suit" are: (1) "Settle all the questions involved in the suit" should be construed to mean, not restricting the scope between the parties to the suit, but to a wider area concerning the subject-matter of the suit involving even the third party's claim and interest. (2) The question of addition of parties under R. 10 (2) of O. 1 is generally not one of initial jurisdiction but of a judicial discretion which has to be exercised in view of the facts and circumstances of each case. The jurisdictional aspect is in the limited sense contemplated under Sec. 115 of the C. P. C. (3) For effectual and complete adjudication of the questions involved in the suit, the presence of a third-party, even if it is not necessary, but if proper, should be allowed to be added as a party if applied for. (4) In a suit relating to property, the person to be added as party should have a direct interest as distinct from a commercial interest in the subject-matter of the litigation. (4) In a suit relating to property, the person to be added as party should have a direct interest as distinct from a commercial interest in the subject-matter of the litigation. (5) Where the subject-matter of a litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party, it would be in a better position effectual and completely to adjudicate upon the controversy." 16. From the judgment of this Court referred to above, it is clear that addition of parties is generally not one of initial jurisdiction but of judicial discretion which has to be exercised in view of the facts and circumstances of each case. It is also upon held that settlement of all questions involved in the suit should be construed to mean, not restricting the scope between the parties to the suit, but to a wider area concerning the subject matter of the suit involving even the third party's claim and interest. It has been further held that for effectual and complete adjudication of the questions involved in the suit, the presence of third party even if it is not necessary but if proper should be allowed to be added as party. 17. Apart from that initially, the petitioner/plaintiff filed I.A. No. 2311 of 2013 to implead the proposed respondents as defendants 3 to 5, which was allowed on 17.07.2014 and challenging the same, defendants 1 and 2 preferred C.R.P. No. 3276 of 2014 before this Court. By an order, dated 27.03.2015, this Court passed the following order:- "I.A. No. 2311 of 2013 filed by respondent No. 1-plaintiff is allowed to be withdrawn and disposed of as such, with liberty to file fresh interim application for adding respondent Nos. 2 to 4 as party defendants in the suit and to seek consequential amendment of the pleadings including the prayer clause. If any such application is filed, it would be open to the petitioners to file their counter and oppose the prayers. I hope and trust that the Court below shall decide any such application on merits in accordance with law. In view of this order, the order impugned in the present C.R.P. is set aside. All contentions on merits are kept open." 18. I hope and trust that the Court below shall decide any such application on merits in accordance with law. In view of this order, the order impugned in the present C.R.P. is set aside. All contentions on merits are kept open." 18. Having regard to the aforesaid decision of this Court in A. Gyaneshwar Rao v. Mahmood Shaireef and another (supra) and in view of the liberty granted to the petitioner/plaintiff in C.R.P. No. 3276 of 2014, to file fresh interim application for adding the proposed respondents as defendants 3 to 5 and to seek consequential amendment of the pleadings including the prayer clause and also in view of the claim made by the proposed respondents over the property in issue, this Court is of the view that the proposed respondents will be proper and necessary parties to the suit. Hence, both the Civil Revision Petitions are deserve to be allowed. 19. Accordingly, both the Civil Revision Petitions are allowed by setting aside the impugned orders dated 02.01.2020, passed in I.A. Nos. 679 and 680 of 2016 in O.S. No. 657 of 2009 on the file of the II-Additional Chief Judge, City Civil Court, Hyderabad, and consequently, both I.A. Nos. 679 of 2016 and 680 of 2016 are hereby allowed with costs of Rs. 15,000/- (Rupees Fifteen thousand only) which shall be payable by the petitioner/plaintiff to the respondents 1 and 2 herein, within ten days from the date of this order. However, since the suit is of the year 2009, the learned II-Additional Chief Judge, City Civil Court, Hyderabad, is directed to dispose of O.S. No. 657 of 2009, as expeditiously as possible, preferably, within a period of six months from the date of receipt of a copy of this order and both the parties are directed to cooperate with the trial Court in disposing of the said suit within the time stipulated. 20. As a sequel thereto, Miscellaneous Petitions pending if any, shall stand closed.