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2021 DIGILAW 297 (AP)

Sathuluri John Saheb v. Shaik Hussainpeera Rep. ,By K. Srinivasa Rao

2021-04-30

LALITHA KANNEGANTI

body2021
ORDER : The present civil revision petition under Article 227 of the Constitution of India is filed assailing the order dated 04.01.2013 passed in I.A.No.109 of 2012 in O.S.No.332 of 2011 by the learned Additional Senior Civil Judge, Narasaraopet, Guntur District whereby the petition filed by the proposed party under Order I Rule 10 of the Code of Civil Procedure, 1908 (for short ‘CPC’) to implead himself as proper and necessary party was dismissed. 2. The brief facts of the case are: Respondent No.1/plaintiff filed a suit for permanent injunction against respondent Nos.2 to 4/defendant Nos.1 to 3 in respect of the plaint schedule property i.e. D.No.108/5 of Gunta Garlapadu village, Issapalem Gram Panchayat, Narasaraopet Mandal. The case of the petitioner is that he filed O.S.No.93 of 2011 on the file of the learned Principal Senior Civil Judge, Narasaraopet basing on an agreement of sale dated 17.07.2007 executed by one Shaik Meerabi as well as her endorsement thereon dated 24.04.2008 by receiving full consideration from the petitioner and the said suit was decreed on 27.07.2011. As the petitioner purchased the plaint schedule property from Shaik Meerabi the petitioner is proper and necessary party to the present suit. The present suit is filed by respondent No.1 only to cause wrongful loss to the petitioner. Hence, prayed the Court to implead him as a party to the suit. 3. Respondent No.1/plaintiff filed counter resisting the claim of the petitioner and stated that Shaik Meerabi is no way concerned with the suit schedule property and she has nothing to do with the same. The copies of documents filed by the petitioner shows that said Shaik Meerabi inherited the Ac.1-60 cents situated in D.No.108/5 whereas the contents of the judgment show that she occupied the said property in the year 1982. Further the said suit was filed between two private parties without adding Government as party though admittedly the land belongs to Government. Even if it is assumed that Shaik Meerabi got right over poramboke land, she has no saleable interest. Therefore, the petitioner herein cannot get right title or interest over the subject property. The petitioner herein played fraud and obtained ex parte decree in respect of poramboke land by filing spurious documents. Further the properties on which the petitioner herein and respondent No.1/plaintiff are claiming rights are not one and the same. Therefore, the petitioner herein cannot get right title or interest over the subject property. The petitioner herein played fraud and obtained ex parte decree in respect of poramboke land by filing spurious documents. Further the properties on which the petitioner herein and respondent No.1/plaintiff are claiming rights are not one and the same. Respondent No.1/plaintiff being Ex-Serviceman applied for the said land for which D-form patta was issued and he has been in possession and enjoyment of the same by raising redgram and jowar crops. The revenue authorities have also issued title deed and pattadar passbook in favour of respondent No.1/plaintiff and he is entitled to sell the same after ten years in view of G.O.Ms.No.1117 dated 11.11.1993. As respondents No.3 and 4 have been postponing to issue NOC for sale of the property and threatened to dispossess respondent No.1/plaintiff he filed the suit for permanent injunction. Only with an in ill intention the petitioner herein came up with this petition and he is not a bonafide purchaser as such he cannot claim any rights over the property. 4. The Court below dismissed the said petition holding that the petitioner is not a necessary party as it is only a suit for injunction against the Government and there is no interference by the petitioner at any point of time over the suit schedule property and after obtaining decree he did not take any steps to get a regular sale deed. It was also observed that mere agreement of sale executed between the petitioner and Shaik Meerabi will not create any title or interest or charge on such property as claimed by him as per Section 54 of the Transfer of Property Act, 1882. Aggrieved by the same the proposed party is before this Court. 5. Heard Sri J.Ugra Narasimha, learned counsel for the proposed party and Sri C.Raghu, learned counsel for respondent Nos.1 to 3. 6. Learned counsel for the petitioner submits that as the main suit was filed for injunction the court below ought to have allowed the petition. While dealing with an implead petition the scrutiny of title of the parties is not at all relevant for adjudication of the same. 6. Learned counsel for the petitioner submits that as the main suit was filed for injunction the court below ought to have allowed the petition. While dealing with an implead petition the scrutiny of title of the parties is not at all relevant for adjudication of the same. It is argued that the petitioner had gained substantive rights over the suit schedule property by virtue of the decree passed in a suit for specific performance and as such he has got interest in the said property. Therefore the petitioner is necessary party. 7. On the other hand, learned counsel for respondent Nos.1 to 3 supported the order of the Court and submits that it does not require interference of this Court. 8. Petitioner wants to get himself impleaded in the suit on the ground that he has obtained decree against one Shaik Meerabi basing on an agreement of sale in respect of the suit schedule property which is ancestral property of Meerabi. His plea is that in view of the exparte decree passed in respect of the suit schedule property the petitioner is a proper and necessary party to the suit proceedings and by impleading him an opportunity may be provided to contest the suit to avoid multiplicity of proceedings. 9. The suit filed by respondent No.1 herein is for permanent injunction against the Government and the property admittedly belongs to the Government. Therefore, prima facie Shaik Meerabi has no saleable interest over the suit schedule property and even the decree obtained is an ex parte decree. Though the decree was passed in the year 2011 the petitioner has not obtained regular sale deed. The contention of respondent No.1 is that he being ex-service man had applied for assignment of land and D-form patta was issued for an extent of Ac.1-60 i.e. the suit schedule property and eversince he has been in peaceful possession and enjoyment of the same with all rights by raising redgram and jowar crops. He was also issued pattedat pass book and title deed in respect of the said property in the year 2009. Even in the adangal the name of respondent No.1 finds place. When respondent No.1 is entitled to sell the property after ten years, the Government authorities instead of issuing NOC, have been postponing the same on one ground or the other and further claimed that the property belongs to the Government. Even in the adangal the name of respondent No.1 finds place. When respondent No.1 is entitled to sell the property after ten years, the Government authorities instead of issuing NOC, have been postponing the same on one ground or the other and further claimed that the property belongs to the Government. Therefore, respondent No.1 filed the suit for injunction. 10. 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. 11. (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. 11. 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 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. 12. 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. 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. 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.” 13. 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.” 13. 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. 14. In the light of the law laid down by the Hon’ble Apex Court a duty is cast upon the Courts to take meticulous analysis 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. 15. In the case on hand respondent No.1/plaintiff filed the suit for permanent injunction against the Government and when admittedly the property belongs to the Government the presence of the petitioner who claims to have purchased the said property from one Shaik Meerabi who has no saleable interest is not a necessary party for adjudicating the dispute involved in the case which is a bare injunction suit against the Government. 16. In view of the above discussion, this Court finds no merits in this revision and hence, the same is liable to be dismissed. 17. Accordingly this civil revision petition is dismissed. There shall be no order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.