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2022 DIGILAW 870 (AP)

Basava Poornima Choudary v. T. Gowthami Chowdary

2022-09-13

B.S.BHANUMATHI

body2022
ORDER : This Civil Revision Petition, under Article 227 of the Constitution of India, by the petitioners, is directed against the order, dated 27.08.2019, of the learned XII Additional District Judge, Vijayawada, passed in IA.No.1205 of 2016 in OS.No.220 of 2011 filed under Order I Rule 10 and Section 151 of the Code of Civil Procedure, 1908, praying to permit them to come on record as plaintiffs 2 & 3 in the suit and to amend the plaint as in the petition. 2. Heard Sri Gurram Ramachandra Rao, learned counsel appearing for the revision petitioners/petitioners/proposed parties and Sri Chilurkuru Narendra Babu, learned counsel for the respondents/defendants 1 & 2. The 3rd respondent is the plaintiff. The parties shall hereinafter be referred to as the revision petitioners/proposed parties, plaintiff and defendants for the sake of convenience and clarity. 3. The facts that lead the revision petitioners to file the present interlocutory application seeking their impleadment as plaintiffs 2 & 3 in the suit, in brief, are as follows: (a) The plaintiff is the father. 1st defendant is the paternal aunt of the revision petitioners and 2nd defendant is paternal aunt’s husband. The paternal grandfather of the revision petitioners executed a registered Will, dated 05.05.2006, and executed a Codicil, dated 01.08.2006. Thereafter, the plaintiff, defendants and the revision petitioners jointly executed a Memorandum of Understanding on 24.11.2008 along with Kanakamedala Sandhya to resolve the issues relating to their movable and immovable properties in an amicable manner. Their grandfather obliged the request of the defendants and paid an amount of Rs.50,00,000/-to the defendants subject to adjustment at the time of execution of the document in favour of the revision petitioners by the defendants. Their grandfather passed away on 26.10.2006. Thereafter, due to misunderstandings, the defendants avoided execution of the sale deed in respect of the suit schedule property. The revision petitioners are entitled for execution of a sale deed in their favour by the defendants in terms of the family agreement, as they already received the entire sale consideration. (b) The grandfather of the revision petitioners parted with a lot more than the entire sale consideration with a view to get the sale deed registered in favour of the revision petitioners, but the defendants, all along, failed to honour the commitment despite the best efforts and intervention of the elders. (b) The grandfather of the revision petitioners parted with a lot more than the entire sale consideration with a view to get the sale deed registered in favour of the revision petitioners, but the defendants, all along, failed to honour the commitment despite the best efforts and intervention of the elders. During the last week of November, 2008, the revision petitioners requested the defendants to complete documentation. However, the defendants, having promised to abide by the terms of the Will, failed to do so. Thereafter, the 1st plaintiff filed the suit for specific performance seeking a direction to the defendants to execute the registered sale deed in his favour and hand over vacant and peaceful possession of the suit schedule property to him with all the relevant bona fide link documents. (c) In the aforesaid circumstances, in order to protect their right and interest in the suit schedule property, it is just and expedient to implead the revision petitioners as plaintiffs 2 & 3 in the suit. The revision petitioners are the necessary and proper parties in the suit, as they also have share in the movable and immovable properties of their deceased grandfather. Their impleadment as parties will not change the nature of the suit and will not cause any loss or injury to the defendant. It was also recited in the Will, dt.01.05.2006 “to divide movable and immovable properties into four equal shares to be given to my son and his three children in equal shares”. Hence, the instant application seeking their impleadment as proposed plaintiffs 2 & 3 in the suit. 4. The respondents/defendants 1 & 2 filed counter denying the petition averments and contending that the proposed parties are claiming relief on par with the claim of the plaintiff. The reliefs of the plaintiff and the petitioners are different and they cannot sail in the same ship and cannot be permitted to exercise the same rights. The plaintiff, in his pleadings, never mentioned that he is filing the suit on behalf of children and as such, the proposed parties are not entitled to alter the nature of the suit and the relief. The present petition is not filed by the plaintiff, but by the persons who are seeking equal rights in the suit claim and the relief of the original plaintiff. The present petition is not filed by the plaintiff, but by the persons who are seeking equal rights in the suit claim and the relief of the original plaintiff. Therefore, if the revision petitioners are added as plaintiffs 2 & 3, the very nature of the pleas and relief in the suit would be changed which will adversely affect the interests of the defendants adversely. (b) The suit was filed in the year 2011 and the right of the revision petitioners, if any, to claim any relief against the defendants is barred by limitation and their alleged right is barred by afflux of time. The trial in the suit has commenced and the original plaintiff filed his chief examination affidavit along with the documents and at this stage, to delay the matter and to fill up lacunae, the plaintiff himself instigated his children and got filed the present petition. The petition is not maintainable and is liable to be dismissed. 5. The trial Court, on perusal of the above pleadings and on hearing the rival contentions, proceeded to dismiss the petition observing that if any claim is there in favour of the proposed parties, they ought to have filed the suit within three years, i.e., by 2011, but the present petition is filed in the year 2014 and that if their cause of action is based on such family understanding in the year 2008, the proposed amendment is barred by time. 6. The aggrieved petitioners, therefore, preferred this revision. It is mainly urged in the grounds of revision that the trial Court ought to have appreciated that the right and title of the revision petitioners over the plaint schedule property cannot be deprived. The claim of the revision petitioners cannot be decided in an interlocutory application. The trial Court ought to have seen that in a suit for specific performance, time is not the essence and as such, question of limitation does not arise. The impugned order of trial Court is affecting the rights of the revision petitioners. The trial Court ought to have allowed the application as the proposed parties are proper and necessary parties to the suit and their valuable rights are involved in the suit. The impugned order of the trial Court is beyond the scope of law, and therefore, the same is liable to be set aside. 7. The trial Court ought to have allowed the application as the proposed parties are proper and necessary parties to the suit and their valuable rights are involved in the suit. The impugned order of the trial Court is beyond the scope of law, and therefore, the same is liable to be set aside. 7. The main contention of the petitioners is that they are necessary parties to the suit, but due to bona fide mistake, they were not made parties by misconstruing the contents of the Codicil basing on which only the father of the petitioners filed the suit, since transfer of property contemplated under the Codicil is to the petitioners and the settlement of balance money, if any, is to the father of the petitioners. Therefore, it is vehemently contended that unless the petitioners are made parties to the suit, real issues in dispute cannot be adjudicated. In this regard, learned counsel for the petitioners relied on the following decisions to point out the settled principles of law to deal with petition under Order 1 Rule 10 CPC. (i) Vidur Impex and Traders Private Limited v. Tosh Apartments Private Limited, (2012) 8 Supreme Court Cases 384, wherein at paragraph No.41, it was held as follows: “41. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are: 41.1 The court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit. 41.2 A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court. 41.3 A property party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though the may not be a person in favour of or against whom a decree is to be made. 41.4 If a person is not found to be a proper or necessary party, the court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff. 41.4 If a person is not found to be a proper or necessary party, the court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff. 41.5 In a suit for specific performance, the court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 41.6 However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit properly in violation of the restraint order passed by the court of the application is unduly delayed then the court will be fully justified in declining the prayer for impleadment.” (ii) In V.Narayana Reddy v. Ani Narayanan, AIR 2009 AP 124 , it was held at para No.16 as follows: “16. The analogy that is being confirmed from time to time indicates that the criteria for impleadment of a party under the provisions of Order I 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 held 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.” (iii) In Bal Niketan Nursery School v. Kesari Prasad, (1987) 3 Supreme Court Cases 587, it was held at paragraph No.13 to 19 as follows: “13. The last and final ground which needs setting out in some detail is that even if a rigid view is taken and it is to be held that the suits have not been instituted in the name of the proper person viz. The last and final ground which needs setting out in some detail is that even if a rigid view is taken and it is to be held that the suits have not been instituted in the name of the proper person viz. the Society, the High Court should have seen that Order 1 Rule 10-has been expressly provided in the Civil Procedure Code to meet with such situations so that the rendering of justice is not hampered. The Rule provides that if a suit has been instituted in the name of a wrong person as plaintiff or if there is a doubt as to whether the suit has been instituted in the name of the right plaintiff the court may, at any stage of the suit, if it is satisfied that the suit has been instituted due to a bona fide mistake and that 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. The scope and effect of Order 1 Rule 10 has been considered in numerous cases and there is a plethora of decisions laying down the ratio that if the court is satisfied that a bona fide mistake has occurred in the filing of the suit in the name of the wrong person then the court should set right matters in exercise of its powers under Order 1 Rule 10 and promote the cause of justice. The courts have gone so far as to hold that even if the suit had been instituted in the name of a person who had no competence to file the suit, the courts should set right matters by ordering the addition or substitution of the proper plaintiff for ensuring the due dispensation of justice. We may only refer to a few decisions in this behalf. 14. In Hughes v. The Pump House Hotel Company Limited (No. 2) [1902] 2 K B 485 a dispute was raised regarding the competence of the plaintiff to file a suit because doubts were cast as to F whether the plaintiff had made an absolute assignment of his claim against the defendants, or only an assignment by way of charge. 14. In Hughes v. The Pump House Hotel Company Limited (No. 2) [1902] 2 K B 485 a dispute was raised regarding the competence of the plaintiff to file a suit because doubts were cast as to F whether the plaintiff had made an absolute assignment of his claim against the defendants, or only an assignment by way of charge. Thereupon an application was made under Order XVI Rule 2 (corresponding to Order 1 Rule 10 CPC) for substitution of another person as plaintiff. The application was allowed and that was upheld by the Court of Appeal and it was pointed out that the fact that the original plaintiff had no cause of action would not take away the jurisdiction of the court to order the substitution of another person as plaintiff. 15. In Krishna Bai v. The Collector and Government Agent, Tanjore nd Ors. ILR 30 Madras 419 when it was found that a suit for ejectment of a defendant had been brought by the Collector and Government Agent due to a bona fide mistake instead of the beneficiaries of the estate, the court allowed an application for substitution of the correct plaintiff and it was further held that the fact that the Collector had no right to institute the suit would not stand in the way of the court ordering the substitution of the correct plaintiff. 16. In Sitla Bux Singh v. Mahabir Prasad, AIR 1936 Oudh 275 it was held that where a person prohibited from dealing in actionable claim under Section 136 Transfer of Property Act obtained an assignment of a bond through a bona fide mistake and instituted a suit on the basis of the same, the provisions of Order 1 Rule 10 would apply and the assignor can be substituted in place of the assignee as plaintiff and allowed to continue the suit. 17. In Dinanath Kumar v. Nishi Kanta Kumar and Ors., AIR 1952 Cal 102 the court allowed an application under Order 1 Rule 10 CPC and permitted a person who claimed that he was the real owner of the property and the original plaintiff was only a benamidar to be added as plaintiff in order to avoid multiplicity of proceedings and that he was a necessary party to the proceedings. 18. 18. In Laxmikumar Srinivas Das v. Krishnaram Baldev Bank, Lashkar and Anr., (A.I.R. 1954 M.B. 156) it was held that the words "where a suit has been instituted in the name of the wrong person as plaintiff" must be construed to include those suits which the instituted by persons who had no right to do so and that the fact that the person instituting the suit had no cause of action would not take away the court's jurisdiction to order substitution of another as plaintiff. 19. In Karri Somalu v. Thimmalapalli Venkataswamy and Ors., 1963 2 A.W.R. 138 it was held that the expression "wrong person" in Order 1 Rule 10 cannot be confined merely to a person wrongly described but would also extend to include a person whose name ought not to have figured as plaintiff for want of right to file the suit and that the object of the Rule is to save suits instituted honestly although in the name of the wrong person as plaintiff and to ensure that honest plaintiffs do not suffer.” 8. On the other hand, learned counsel for the respondents 1 & 2/ defendants 1 & 2 contended that the Codicil itself is a created one and that the suit must be decided basing on the original cause of action pleaded and the proposed party cannot be added as plaintiff now at this juncture, more particularly when their right is barred by limitation. 9. The learned counsel for the petitioners submitted that as per Section 21 of the Limitation Act, when a party is not added in a suit due to bona fide mistake, the limitation does not commence from the date of adding the party, but it goes back to the date of filing of the suit. In support of his contentions, learned counsel relied on a decision of this Court in Devathi Rama Rao v. Shaik Baaji, C.R.P.No.2503 of 2019, dt.11.04.2022 (Unreported). 10. For the purpose of better understanding, Order 1 Rule 10 CPC is noted hereunder: “10. In support of his contentions, learned counsel relied on a decision of this Court in Devathi Rama Rao v. Shaik Baaji, C.R.P.No.2503 of 2019, dt.11.04.2022 (Unreported). 10. For the purpose of better understanding, Order 1 Rule 10 CPC is noted hereunder: “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.” A reading of the aforesaid provision makes it clear that when Court is satisfied that suit has been instituted due to a bona fide mistake, it can allow any party to be impleaded at any stage of the suit. 11. Before proceeding further, it is pertinent to refer to the relevant portion of the Codicil, which reads as follows: “Kanchikacherla land-Gowthami and co-executor Sandhya shall effect the transfer of 3.52 ½ acres registered in sandhya’s name and the access road registered in Rajeswara Rao’s name to my son’s children as originally agreed and amounts settled by me, as Sandhya is ineligible to purchase agriculture land. Gowthami/Rajeswara Rao received Rs.50 lacs for transfer of 2700 sq yards on Ring Road, Vijayawada to my son’s children. Only 2200 sq yards was acquired without proper frontage. Failure to acquire the balance resulted in improper frontage and delay in transfer till now. During the end of 1999, I solved several of its problems and gave money to the couple for its purchase. They shall effect transfer and settled the balance to my son. I handled my son’s money all along which I could not account for. I wish, I shall do so very soon, besides the above mentioned issues.” 12. A perusal of the above statement shows that the testator intended the property shall be transferred to his grandsons, who are petitioners herein and the amount to be given to the father of the petitioners. I wish, I shall do so very soon, besides the above mentioned issues.” 12. A perusal of the above statement shows that the testator intended the property shall be transferred to his grandsons, who are petitioners herein and the amount to be given to the father of the petitioners. It was argued by the learned counsel for respondents 2 & 3 that the fact that the codicil, dated 01.08.2006, was fabricated is evident from the fact that it has no reference in the Memorandum of understanding, dated 24.11.2008, signed by the plaintiff and moreover it was not in the sealed cover opened by the advocate in the presence of the family members after the death of the grandfather and further the will is autographed, but the Codicil is type written, that too, on a stamp paper, dated 28.02.1996. It is not the stage to test the genuineness of the disputed document, i.e., Codicil. It is one of the basic documents on which the suit was instituted. It is during the course of trial only, the said document will be put to the test of its veracity. It was argued that there are no bona fides in filing this petition since the father (plaintiff) and the sons (petitioners) are living together in the same house. The plaintiff/respondent No.3 herein who originally instituted the suit, has not made the petitioners as parties to the suit. A plain reading of the contents of the Codicil shows that it is the petitioners who can seek for the suit relief. Therefore, they are necessary parties to the suit. There appears no material on record to show that there is any deliberate inaction on the part of the petitioners in not filing the suit in their names. It appears that there is a bona fide mistake on the part of the parties when the suit was filed by misconstruing the contents of the Codicil, in view of the last part of the above extracted portion of the codicil, ignoring the beginning part of the same paragraph. In fact, on a reading of the entire paragraph, as a whole, it is clear that the intention of the testator is to get the property transferred to the petitioners and money to the father of the petitioners. In fact, on a reading of the entire paragraph, as a whole, it is clear that the intention of the testator is to get the property transferred to the petitioners and money to the father of the petitioners. As is already noted, the genuineness of the codicil is the subject matter of trial and just because the defendants are denying the genuineness of the codicil, it is not a stage to go into the said question and refuse to grant the relief to the petitioners. As such, without making any comment on the genuineness of the codicil in question, it is observed that the petitioners are necessary parties to the suit and they were not named in the suit due to bona fide mistake. Therefore, it is a fit case to allow the petition. However, the trial Court has erroneously dismissed the petition observing that as per the original cause of action, the proposed parties ought to have filed the suit within the three years and the proposed amendment is barred by time. 13. Section 2 (h) and 21 of the Limitation Act, 1963 reads as under: Section 2(h): “good faith”—nothing shall be deemed to be done in good faith which is not done with due care and attention; Section 21: 21. Effect of substituting or adding new plaintiff or defendant.— (1) Where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party: Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. (2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.” In view of the proviso to Section 21(1) of the Limitation Act read with Section 2(h) of the said Act, as in the present case, when there is a bona fide mistake done in good faith, the impleadment of the parties to the suit, the matter relates back to the original date of filing of the suit and as such, the relief claimed by the petitioners cannot be refused on the ground of limitation. In this case, since trial has not yet commenced, except filing affidavit of PW1, amendment and impleadment of parties can be liberally permitted to decide the matter on merits and to avoid multiplicity of proceedings. Thus, the impugned order is not sustainable. 14. In the result, the civil revision petition is allowed setting aside the order, dated 27.08.2019, of the learned XII Additional District Judge, Vijayawada, passed in IA.No.1205 of 2016 in OS.No.220 of 2011, and the said petition is allowed with permission to carry out amendment as proposed. There shall be no order as to costs. Miscellaneous petitions pending, if any, shall stand closed.