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2021 DIGILAW 195 (AP)

Sayana Sudhakar v. Muthyalamma Temple Committee

2021-03-24

LALITHA KANNEGANTI

body2021
ORDER : The present civil revision petition under Article 227 of the Constitution of India is filed aggrieved by the order dated 20.01.2017 passed in I.A.No.165 of 2016 in O.S.No.343 of 2015 by Principal Junior Civil Judge, Machilipatnam, wherein the petition filed by third party under Order I Rule 10 and Section 151 of the Code of Civil Procedure, 1908 (for short ‘C.P.C.’) for impleading himself as defendant No.2 in O.S.No.343 of 2015 was allowed. 2. The brief facts of the case are: The petitioners/plaintiffs have filed the suit in O.S.No.343 of 2015 against respondent No.2/defendant seeking the relief of permanent injunction as respondent No.2/defendant has been trying to interfere with the peaceful possession and enjoyment over the suit schedule property. On coming to know about the same, respondent No.1 herein who is proposed party filed an application under Order I Rule 10 and Section 151 of C.P.C. with a prayer to implead Muthyalamma Temple Committee represented by its President as defendant No.2 alleging that the plaint A and B schedule properties belong to Muthyalamma Temple and plaint A schedule property consists of two rooms which were being used by the family of poojari. The mother of the petitioners/plaintiffs used to look after the deepa, dhoopa nyvedyam of Muthyalamma Temple and after her death the petitioners/plaintiffs with an evil intention to grab the suit schedule A and B properties which belong to the Temple created a fictitious story as if the properties belong to respondent No.2’s/defendant’s family, who had permitted the mother of the petitioners/plaintiffs to attend maintenance of the Temple and the petitioners’/plaintiffs’ mother raised two RCC rooms in ‘A’ schedule property who in turn executed Will dated 26.08.2006 which came into existence after her death on 25.10.2008. It is also stated in the affidavit that even as per the pleadings of the plaintiffs their mother is in permissive possession of the property, as such she has no right to execute any Will in favour of the petitioners/plaintiffs. But, the petitioners/plaintiffs in collusion with respondent No.2/defendant filed the suit by creating a wrong cause of action with an intention to grab the suit schedule property and in pursuance of said collusion respondent No.2/ defendant expressed ‘no objection’ to give the property to the petitioners/plaintiffs. It is thus, clear that the petitioners/plaintiffs are trying to obtain a collusive decree by suppressing true facts. It is thus, clear that the petitioners/plaintiffs are trying to obtain a collusive decree by suppressing true facts. The third party who is President of Muthyalamma Temple has approached the Court by filing an application under Order I Rule 10 C.P.C. to protect the rights of the Temple over the suit schedule property and to stop the petitioners/plaintiffs from obtaining a collusive decree. The Court below allowed the said application observing that with a view to stop multiplicity of litigation even in a suit filed for permanent injunction. If the third party is impleaded no prejudice or any loss or damage will be caused to the respondents. 3. Heard Sri V.V.L.N. Sarma, learned counsel for the petitioners/plaintiffs. 4. Learned counsel for the petitioners/plaintiffs contends that the petitioners/plaintiffs are dominus litis and hence, they can choose against whom they want to contest the matter. If a third party is aggrieved by any of the actions, he should prefer an independent suit and he cannot be impleaded in a suit filed for permanent injunction. He further submits that impleaded party has stated several things in the affidavit filed in support of the petition but no document is filed to show the ownership of Mutyalamma Temple Committee over the suit schedule property. He submits that without any proper reasons, the Court below reiterated the averments in the counter affidavit and allowed the application. Learned counsel for the petitioners/plaintiffs further submits that in a suit for permanent injunction third party cannot be impleaded particularly when the petitioners/plaintiffs have not pleaded any cause of action against the third party. 5. The undisputed facts of the case are that the suit schedule property belongs to Muthyalamma Temple. It is the case of the petitioners/plaintiffs that with the permission of respondent No.2/defendant, they are in possession of the suit schedule property and admittedly respondent No.2/defendant has no such right over the property. It is also evident from the pleadings that the mother of the petitioners/plaintiffs has executed a Will in respect of the suit schedule property though she has no right over the said property. In the order impugned, it is observed that respondent No.2/defendant remained ex parte which strengthens the case of the third party that the suit is a collusive suit. 6. At this stage it is appropriate to have a look at Order I Rule 10 of C.P.C. reads thus: “10. In the order impugned, it is observed that respondent No.2/defendant remained ex parte which strengthens the case of the third party that the suit is a collusive suit. 6. At this stage it is appropriate to have a look at Order I Rule 10 of C.P.C. reads thus: “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 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. (4) Where defendant added, plaint to be amended – 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 (15 of 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. 7. Order I Rule 10 enables the Court to implead any person as a party whose presence before the Court is necessary for effective and complete adjudication of the dispute before it. 7. Order I Rule 10 enables the Court to implead any person as a party whose presence before the Court is necessary for effective and complete adjudication of the dispute before it. It is also important to note the whole purport of the provision to Order I Rule 10 C.P.C. is that for adjudication of the “real controversy” between the parties on record, if the presence of a third party is necessary, then he can be impleaded and it is imperative to note that by such impleading of proposed party, all controversies arising in the suit and all issues arising thereunder may be finally determined and set at rest, thereby avoiding multiplicity of suits over a subject matter which could still have been decided in the pending suit itself. Order I Rule 10 gives wider discretion to the Court to add any person as a party, if the presence of the person is necessary for effective adjudication of the issue involved in the case and though the plaintiff is the dominus litis, the discretion lies with the Court basing on the facts and circumstances of the case. 8. In Mumbai International Airport vs. Regency Convention Centre, 2010 (5) ALD (SC) : AIR 2010 SC 3109 the Hon’ble Apex Court held as under: 12. Let us consider the scope and ambit of Order I of Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo moto or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice. This Court in Ramji Dayawala & Sons (P) Ltd. vs. Invest Import 1981 (1) SCC 80 , reiterated the classic definition of ‘discretion' by Lord Mansfield in R. vs. Wilkes -1770 (98) ER 327, that ‘discretion' when applied to courts of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, ‘but legal and regular'. ...... 13. If the principles relating to impleadment, are kept in view, then the purported divergence in the two decisions will be found to be non-existent. The observations in Kasturi and Sumtibai are with reference to the facts and circumstances of the respective case. In Kasturi, this Court held that in suits for specific performance, only the parties to the contract or any legal representative of a party to the contract, or a transferee from a party to the contract are necessary parties. In Sumtibai, this Court held that a person having semblance of a title can be considered as a proper party. Sumtibai did not lay down any proposition that anyone claiming to have any semblance of title is a necessary party. Nor did Kasturi lay down that no one, other than the parties to the contract and their legal representatives/transferees, can be impleaded even as a proper party.” 9. In Razia Begum Vs. Sumtibai did not lay down any proposition that anyone claiming to have any semblance of title is a necessary party. Nor did Kasturi lay down that no one, other than the parties to the contract and their legal representatives/transferees, can be impleaded even as a proper party.” 9. In Razia Begum Vs. Anwar Begum, ARI 1958 SC 886 the Hon’ble Apex Court held as under: “As a result of these considerations, we have arrived at the following conclusions:- (1) That the question of addition of parties under r. 10 of the Code of Civil Procedure, is generally not one of initial jurisdiction of the court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case; but in some cases, it may raise controversies as to the power of the court, in contradistinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in s. 115 of the Code; (2)That in a suit relating to property in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest in the subject matter of the litigation; (3)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 effectually and completely to adjudicate upon the controversy; (4) The cases contemplated in the last proposition have to be determined in accordance with the statutory provisions of ss. 42 and 43 of the Specific Relief Act; (5) In cases covered by those statutory provisions the court is not bound to grant the declaration prayed for, on a mere admission of the claim by the defendant, if the court has reasons to insist upon a clear proof apart from the admission; (6) The result of a declaratory decree on the question of status such as in controversy in the instant case affects not only the parties actually before the court but generations to come, and, in view of that consideration, the rule of I present interest' as evolved by case law relating to disputes about property does not apply with full force; and (7) The rule laid down in s.43 of the Specific Relief Act is not exactly a rule of res judicata. It is narrower in one sense and wider in another. 10. In the light of the law laid down by the Hon’ble Apex Court a duty is cast upon the Courts to take meticulous care while dealing with petitions under Order I Rule 10 C.P.C., to avoid adding of a party if it is intended merely as a ruse to ventilate certain other grievances of one or the other of the parties on record which is neither necessary or expedient to be considered by the Court in the pending litigation. 11. It is well settled principle that in a suit relating to property, in order to add a person as a party, he should have a direct interest as distinguished from a commercial interest, in the subject matter of the litigation. In the case on hand, a perusal of the material available on record shows that admittedly Mutyalamma Temple is the owner of the suit schedule property. Even without getting impleaded in the present suit it is always open for the committee to file another suit for injunction and certainly, the petitioners/plaintiffs cannot prevent the proposed party from doing so. Therefore, in order to avoid multiplicity of the proceedings and to put a quietus to the litigation, the Court below has rightly allowed the petition. it is always open for the parties to agitate before the court below by placing the material in support of their respective pleadings for just and proper adjudication. Therefore, in order to avoid multiplicity of the proceedings and to put a quietus to the litigation, the Court below has rightly allowed the petition. it is always open for the parties to agitate before the court below by placing the material in support of their respective pleadings for just and proper adjudication. Therefore, as rightly held by the Court below no prejudice would be caused to the petitioners/plaintiffs if the said committee is impleaded as a party. 12. In view of the above discussion, this Court finds no merits in this revision and hence, the same is liable to be dismissed. 13. Accordingly the Civil Revision Petition is dismissed. There shall be no order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.