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2023 DIGILAW 1599 (AP)

Maram Dattu S/o. Suryanarayana v. Manepalli Mohan Rao S/o. Krishna Rao

2023-12-19

K.SREENIVASA REDDY

body2023
ORDER : The Civil Revision Petition has been filed aggrieved by the Order dated 06.09.2022 in I.A.No.779 of 2019 in O.S.No.13 of 2014 on the file of the X Additional District Judge, West Godavari at Narsapur, whereby the petition filed by the petitioner, under Order I Rule 10 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) seeking to implead him as 4th defendant in the aforesaid suit, was dismissed by the Court below. 2. The facts, in brief, are as follows. It is the case of the petitioner that he filed Original Suit No.4 of 2014 before the Court below against 3rd respondent herein for recovery of money basing on a promissory note dated 01.02.2013. In the said suit, the Court below granted attachment before judgment in respect of the subject property viz. land admeasuring Ac.1.36 cents in Old R.S.No.465/6 & New R.S.No.465/6A situated in 26th Ward, Rustumbada village, Narsapur mandal, West Godavari district. Vide judgment dated 28.06.2018, the Court below decreed the suit. Thereafter, he filed E.P.No.7 of 2019 for realization of the decretal amount by way of attachment and sale of the aforesaid property and the same is pending. It is the further case of the petitioner that respondents 2 and 3 herein, who are wife and husband, entered into a collusive unregistered agreement of sale dated 09.01.2012 with 1st respondent and got filed O.S.No.13 of 2014 through 1st respondent for specific performance of the said unregistered agreement of sale and the same is pending. In the said suit, the subject implead petition in I.A.No.779 of 2019 came to be filed by the petitioner to permit him to implead as 4th defendant in the said suit, but erroneously the said petition was dismissed by the Court below. 3. Heard Sri Akula Sri Krishna Sai Bhargav, appearing for Sri P.L.Narasimha Rao, learned counsel for petitioner; Sri P.Rajesh Babu, learned counsel for 1st respondent; Sri Dasari S.V.V.S.V. Prasad, learned counsel for respondents 2 and 3 and Sri Maheshwara Rao Kunchem, learned counsel for 4th respondent. 4. It is submitted by the learned counsel for the petitioner that the suit in O.S.No.13 of 2014 is a collusive suit between respondent No.1 and other respondents, filed for specific performance of an unregistered agreement of sale, only in order to defeat rights of the petitioner, who is attachment holder in respect of the schedule property in the suit. 4. It is submitted by the learned counsel for the petitioner that the suit in O.S.No.13 of 2014 is a collusive suit between respondent No.1 and other respondents, filed for specific performance of an unregistered agreement of sale, only in order to defeat rights of the petitioner, who is attachment holder in respect of the schedule property in the suit. He further submits that the said unregistered agreement of sale dated 09.01.2012 is a collusive one, brought into existence only to defeat the rights of the petitioner. It is his further submission that the petitioner has semblance of right over the schedule property and hence he is a proper and necessary party to the suit in view of Section 19 of the Specific Relief Act, 1963 and in order to bring to the notice of the Court below regarding the attachment of the said property, as the parties are not seriously contesting the suit, and in the absence of the petitioner, no effective decree can be passed in the suit. 5. On the other hand, the learned counsel for respondents 1 to 3 submit that the petitioner is neither a proper nor a necessary party to the suit which is filed for specific performance of the agreement of sale, and only in order to create multiplicity of litigation and delay the proceedings, the implead petition is filed, which is rightly dismissed by the Court below, and there are no grounds to interfere with the same. 6. Learned counsel for the petitioner relied on a decision in Thomson Press (India) Limited v. Nanak Builders & Investors Private Limited & others, (2013) 5 SCC 397 , wherein it is held thus: (para 24 & conclusive portion) “In Kasturi case [Kasturi v. Iyyamperumal, (2005) 6 SCC 733 ] a three-Judge Bench of this Court said that in a suit for specific performance of contract for sale an impleadment petition was filed for addition as party-defendant on the ground that the petitioners were claiming not under the vendor but adverse to the title of the vendor. In other words, on the basis of independent title in the suit property the petitioner sought to be added as a necessary party in the suit. …. xxx 1) The appellant is not a bona fide purchaser and is, therefore, not protected against specific performance of the contract between the plaintiffs and the owner defendants in the suit. In other words, on the basis of independent title in the suit property the petitioner sought to be added as a necessary party in the suit. …. xxx 1) The appellant is not a bona fide purchaser and is, therefore, not protected against specific performance of the contract between the plaintiffs and the owner defendants in the suit. 2) The transfer in favour of the appellant pendente lite is effective in transferring title to the appellant but such title shall remain subservient to the rights of the plaintiff in the suit and subject to any direction which the Court may eventually pass therein. 3) Since the appellant has purchased the entire estate that forms the subject matter of the suit, the appellant is entitled to be added as a party defendant to the suit. 4) The appellant shall as a result of his addition raise and pursue only such defences as were available and taken by the original defendants and none other.” He also relied on a decision of the Bombay High Court in Shri Swastik Developers & others v. Saket Kumar Jain & another, wherein it is held thus: (paragraph 6 & 8). “In Kasturi v. Iyyamperumal, a Bench of three Learned Judges of the Supreme Court held that under Order I Rule 10 (2) of the Code of Civil Procedure, 1908, the parties to a contract for sale were necessary parties in a suit for specific performance as well as a person who had purchased a contracted property from the vendor. However, a person who claims adversely to the claim of the vendor would not constitute a necessary party since such a person who claims a title adverse to the vendor does not fall within any of the categories mentioned in Section 19 of the Specific Relief Act. xxx 8) In the present case, the Third Appellant is a necessary party to the suit for specific performance. The Third Appellant claims under the First Appellant. The Third Appellant does not set up a title adverse to that of the First Appellant or an independent title. More over, the agreement between the First and Third Appellants of 2 August 2008 is subsequent to the agreement dated 10 November 2005 that was entered into between the First and Second Appellant and the Plaintiffs. The Third Appellant does not set up a title adverse to that of the First Appellant or an independent title. More over, the agreement between the First and Third Appellants of 2 August 2008 is subsequent to the agreement dated 10 November 2005 that was entered into between the First and Second Appellant and the Plaintiffs. Hence, the application for amendment would not change the character of the suit for specific performance.” In Baluram v. P.Chellathangam & others, the Hon’ble Apex Court held thus: “In the present case, the appellant could not be held to be a stranger being beneficiary of the Trust property. The trial Court was justified in impleading him as a party. The High Court erred in interfering with the order of the trial Court. Accordingly, we allow this appeal, set aside the impugned order of the High Court and retore that of the trial Court dated 10th August, 2010, impleading the appellant as a party defendant in the suit.” 7. The learned counsel for respondents relied on a decision in Kasturi v. Iyyamperumal & others, (2005) 6 SCC 733 , wherein it is held thus: (paragraphs 16 and 22) “16. That apart, from a plain reading of the expression used in sub-rule (2) Order 1 Rule 10 CPC “all the questions involved in the suit” it is abundantly clear that the legislature clearly meant that the controversies raised as between the parties to the litigation must be gone into only, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiff-appellant and the defendants inter se or questions between the parties to the suit and a third party. In our view, therefore, the court cannot allow adjudication of collateral matters so as to convert a suit for specific performance of contract for sale into a complicated suit for title between the plaintiff-appellant on one hand and Respondents 2 and 3 and Respondents 1 and 4 to 11 on the other. This addition, if allowed, would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit would have to be gone into. This addition, if allowed, would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit would have to be gone into. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of Respondents 1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made hereinearlier, Respondents 1 and 4 to 11 would not, at all, be necessary to be added in the instant suit for specific performance of the contract for sale. … For the reasons aforesaid, in our view, the stranger to the contract, namely, Respondents 1 and 4 to 11 making claim independent and adverse to the title of Respondents 2 and 3 are neither necessary nor proper parties, and therefore, not entitled to join as party-defendants in the suit for specific performance of contract for sale. In Hari Mohan Sharma & another v. Charanjeet Singh Rekhi & others, (2019) 12 SCC 412 , it is held thus: “The case pleaded before us is that the persons mentioned as Defendants 1 and 2 and Defendants 2 and 3 in the two suits are, in fact, the persons mentioned in the two IAs. This being clear, the plaintiff in the specific performance suit has no lis against such persons, and has chosen to have a lis only against Defendants 1 and 2 and 2 and 3 (original). This being the case, it is clear that the persons in the IAs are neither necessary nor proper parties in the present adjudication.” 8. In the case on hand, the petitioner filed Original Suit No.4 of 2014 before the Court below against 3rd respondent herein for recovery of money basing on a promissory note dated 01.02.2013, and in the said suit, the Court below granted attachment before judgment in respect of the subject property viz. land admeasuring Ac.1.36 cents in Old R.S.No.465/6 & New R.S.No.465/6A situated in 26th Ward, Rustumbada village, Narsapur mandal, West Godavari district. After full-fledged trial, the said suit was decreed by judgment dated 28.06.2018. Thereafter, the petitioner filed Execution Petition in E.P.No.7 of 2019 for realization of the decretal amount by way of attachment and sale of the aforesaid property and the same is pending. After full-fledged trial, the said suit was decreed by judgment dated 28.06.2018. Thereafter, the petitioner filed Execution Petition in E.P.No.7 of 2019 for realization of the decretal amount by way of attachment and sale of the aforesaid property and the same is pending. It is his case that respondents 2 and 3 herein, who are wife and husband, entered into a collusive unregistered agreement of sale dated 09.01.2012 with 1st respondent and got filed O.S.No.13 of 2014 through 1st respondent for specific performance of the said unregistered agreement of sale and the same is pending. It is the case of the petitioner that the unregistered agreement of sale in O.S.No.13 of 2014 is a collusive one between the respondents 1 to 4 herein and that the defendants in the said suit are not seriously contesting the matter and it is only to defeat his rights and decree passed in O.S.No.4 of 2014. It is his contention that the petitioner has semblance of right over the subject property in O.S.No.13 of 2014 claiming through the vendor in the said case, and hence, he is a proper and necessary party to the said suit. 9. The power under Order I Rule 10 CPC to add parties can be exercised by the Court at any stage of the proceedings either on an application by any party or suo motu. The object of enacting this provision is to bring before the Court, at one and the same time, all the persons interested in the dispute so that all the controversies in the suit may be finally determined once for all in the presence of all the parties without any delay, inconvenience and expenses of several actions, trials and inconclusive adjudication. The power to add a party under this provision can be exercised on either of the following two grounds viz. a) such person ought to have been joined, either as a plaintiff or as a defendant, but is not so joined; or b)without his presence, the question involved in the suit cannot be decided finally and effectively. Avoidance of multiplicity of proceedings is also one of the objects of the said provision. The question as to whether an individual is a proper or necessary party to a suit, would depend upon the nature of relief claimed in the suit and the right or interest projected by the persons, who propose to get themselves impleaded. Avoidance of multiplicity of proceedings is also one of the objects of the said provision. The question as to whether an individual is a proper or necessary party to a suit, would depend upon the nature of relief claimed in the suit and the right or interest projected by the persons, who propose to get themselves impleaded. No hard and fast rule can be weighed, that would cover a possible situation in this regard. A necessary party is one in the absence of whom relief claimed in the suit cannot be granted. It means that for the grant of relief claimed in a suit, a person who ought to have joined must be added. Whereas, a proper party is one whose presence may be necessary with a view to fully adjudicate upon the matters involved in the suit. 10. A reading of second part of Order I Rule 10 (2) CPC would clearly go to show that necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead, their legal representatives as also a person who had purchased the contracted property from the vendor. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor, is, however, not a necessary party. 11. A reading of Section 19 of the Specific Relief Act, 1963 makes it clear that the persons seeking addition in the suit for specific performance of the contract of sale who were not claiming under the vendor but are claiming adverse to the title of the vendor, do not fall in any of the categories mentioned in sub-sections (a) to (e) of Section 19 of the Act, 1963. It has to be seen whether the person is claiming under the vendor of the plaintiff in a suit for specific performance or he claims a title independent of or adverse to the title of the vendor. 12. Two tests are to be satisfied for determining the question who is a necessary party viz. there must a right to some relief against such party in respect of the controversies involved in the proceedings and no effective decree can be passed in the absence of such party. 12. Two tests are to be satisfied for determining the question who is a necessary party viz. there must a right to some relief against such party in respect of the controversies involved in the proceedings and no effective decree can be passed in the absence of such party. In the case on hand, the petitioner intends to come on record as a party to the suit O.S.No.13 of 2014 in order to bring to the notice of the Court below about the attachment of the subject property covered by the said suit, by him and the execution proceedings initiated against the said property by him for realization of the decretal amount in O.S.No.4 of 2014. Admittedly, there is an attachment of the property involved in the suit in another suit filed by the petitioner. The petitioner is claiming under the vendor but not making any claim independent or adverse to the title of the vendor. His defence will be limited only to the extent of bringing to the knowledge of the Court below about the attachment of the property obtained by him, since he is alleging that it is a collusive suit among the respondents filed for specific performance of contract by creating the unregistered agreement of sale and parties are not seriously contesting the suit. Therefore, this Court is of the opinion that the petitioner herein is a proper party whose presence is necessary with a view to fully adjudicate upon the matters involved in the suit. In the facts of the present case, presence of the petitioner would be of much help in adjudicating the suit filed for specific performance effectively upon all the points in dispute relating to the subject property. However, the defences of the petitioner will be limited only to the extent of bringing to the knowledge of the Court below about the attachment of the property obtained by him and other consequential matters. 13. In view of the foregoing discussion, the Civil Revision Petition is allowed. The Order dated 06.09.2022 in I.A.No.779 of 2019 in O.S.No.13 of 2014 on the file of the X Additional District Judge, West Godavari at Narsapur is set aside, consequently, I.A.No.779 of 2019 stands allowed, holding that the petitioner is a ‘proper party’ to the suit with limited defences as stated supra, to enable the Court below to fully adjudicate upon the matters involved in the suit. As a sequel, pending miscellaneous petitions, if any, in the C.R.P. shall stand closed. There shall be no order as to costs of the C.R.P.