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2024 DIGILAW 1310 (AP)

Korretla Lakshmi v. Pentakota Sriramulu

2024-09-17

RAVI NATH TILHARI

body2024
JUDGMENT : RAVI NATH TILHARI, J. 1. Heard Sri P. Gopala Krishna, learned counsel for the petitioner and Sri V. Ashok Ram, learned counsel for the respondents 1 & 2. 2. This civil revision petition under Article 227 of the Constitution of India has been filed by the petitioner being aggrieved from the Order dated 08.05.2024 passed in I.A.No.279 of 2024 in O.S.No.367 of 2023 on the file of the Court of the II Additional Civil Judge (Senior Division), Visakhapatnam, by which, the petitioner's said application for his impleadment as defendant No.2 in the suit has been rejected. 3. The respondents 1 and 2 are the plaintiffs and 3rd respondent is the defendant in the said suit No.367 of 2023. 4. Learned counsel for the petitioner submitted that the petitioner's father was the owner of the plaint schedule property and as such, the petitioner is a necessary party to be impleaded in the suit, her father having died, and the petitioner being in possession and enjoyment of the said property. He further submitted that permanent injunction cannot be granted against true owner and so without impleading the petitioner, true owner, the suit has been filed against defendant/3rd respondent. 5. Learned counsel for the respondents 1 & 2 submitted that previously O.S.No.1441 of 2014 was filed by the 3rd respondent against Parupudi Venkata Ramana, father of the petitioner. The same ended in an award, under Section 21 of the Legal Services Authority Act, 1987, passed in L.S.A.No.668 of 2014, dated 02.09.2014 at District Legal Services Authority, Visakhapatnam, in which both parties, petitioner's father and the 3rd respondent agreed for the terms of the compromise. The award was passed accordingly in terms of the compromise as mentioned in the award. 6. Learned counsel for the respondents 1 & 2 further submitted that the plaintiffs/respondents No.1 & 2 filed O.S.No.183 of 2017 based on a tripartite agreement to sell dated 13.09.2012 by the petitioner's father, in which the petitioner's father was the defendant No.1. The petitioner was also defendant No.9 in the said suit. 6. Learned counsel for the respondents 1 & 2 further submitted that the plaintiffs/respondents No.1 & 2 filed O.S.No.183 of 2017 based on a tripartite agreement to sell dated 13.09.2012 by the petitioner's father, in which the petitioner's father was the defendant No.1. The petitioner was also defendant No.9 in the said suit. O.S.No.183 of 2017 was decreed by judgment and decree dated 30.04.2018, directing the defendants therein to execute registered sale deed as per the terms of tripartite agreement dated 13.09.2012 within the specified time on payment of balance of the sale consideration, and if they failed to execute the regular registered sale deed by receiving amounts, it was provided that the plaintiffs were at liberty to obtain regular registered sale deed executed through Court. The said decree was modified/amended as per Order dated 27.06.2018 in I.A.No.1034 of 2018. The modified decree, inter alia, provided that the plaintiffs became absolute owners. 7. It is further submitted by the learned counsel for the plaintiffs/respondents 1 and 2 that the decree dated 30.04.2018 was not put to execution. The sale deed pursuant to the decree originally passed on 30.04.2018 was neither executed by the defendant in the said suit nor it was got executed through Court. He submitted that the payment of the balance of the sale consideration, as directed by the decree, in proportionate share of the present petitioner was paid to her. He further submitted that in view of the amended/modified decree dated 27.06.2018, the plaintiffs of the said suit who are also the plaintiffs of the suit O.S.No.367 of 2023, became absolute owners. 8. Learned counsel for the respondents 1 & 2 further submitted that in either case i.e., if the L.S.A.No.668 of 2014, award passed in O.S.No.1441 of 2014, or the decree passed in O.S.No.183 of 2017, is considered, the present petitioner has no role to play in O.S.No.367 of 2023 for being impleaded in this suit. At the most either the defendant/3rd respondent would be the owner or the plaintiffs/respondents 1 & 2 would be the owners. The petitioner is not necessary or proper party to be impleaded in the suit. The order impugned is perfectly legal and justified. 9. Learned counsel for the petitioner submitted in reply that, the factum of O.S.No.1411 of 2014 and the award passed therein was not pleaded before the Court below in the opposition of the petitioner's application for impleadment. The petitioner is not necessary or proper party to be impleaded in the suit. The order impugned is perfectly legal and justified. 9. Learned counsel for the petitioner submitted in reply that, the factum of O.S.No.1411 of 2014 and the award passed therein was not pleaded before the Court below in the opposition of the petitioner's application for impleadment. He submitted that it being admitted that the property belonged to the petitioner's father, the petitioner is necessary or at least proper party in the present suit O.S.No.367 of 2023. He disputed receipt of any part of the sale consideration by the petitioner. 10. I have considered the submissions advanced and perused the material on record. 11. The suit O.S.No.367 of 2023 has been filed for the following reliefs; "VI. The plaintiffs therefore pray that the Honourable Court may be pleased to pass a decree and judgment in their favour and against the defendants: a) To declare the Award passed in L.S.A.No.688/2014 in O.S.No.1441/2014 dt.02.09.2014 as void being vitiated by fraud and not binding on the plaintiffs; b) For a consequential relief of permanent injunction restraining the Defendant, his men, agents, servants, privies or any one acting for or on his behalf from ever interfering with the plaintiffs' possession and enjoyment of the Schedule Land in any manner whatsoever; c) For costs of the suit; d) For such other relief or relieves which the honourable court deems fit in the circumstances of the case." 12. This Court finds inter alia from the plaint of the O.S.No.367 of 2023 in para-3(j), (k) & (l) that pleading has been taken with respect to the L.S.A.No.668 of 2014 in O.S.No.1441 of 2014. The said award is said to have been obtained fraudulently by the defendant in that suit, who is also defendant in O.S.No.367 of 2023. A prayer is clearly made to declare the said award dated 02.09.2014 passed in L.S.A.No.688 of 2014 in O.S.No.1441 of 2014 as void being vitiated by fraud and not binding on the plaintiffs. 13. It is admitted to the parties' counsels that all the three suits are with respect to the same property. 14. A prayer is clearly made to declare the said award dated 02.09.2014 passed in L.S.A.No.688 of 2014 in O.S.No.1441 of 2014 as void being vitiated by fraud and not binding on the plaintiffs. 13. It is admitted to the parties' counsels that all the three suits are with respect to the same property. 14. Considering the aforesaid, this Court is of the view that once the prayer in the present suit is to set aside the award in O.S.No.1441 of 2014, in which the petitioner's father was party and signatory, that aspect also required consideration, which has not been considered by the learned trial Court while rejecting the application for impleadment. In the counter/objection filed to the impleadment petition, the said fact might not have been pleaded, as contended by the petitioner's counsel, but the plaintiff's case being with respect to O.S.No.1441 of 2014 and the prayer also being to set aside the award in O.S.No.1441 of 2014, in the plaint of O.S.No.367 of 2023, the learned trial Court must have considered these relevant aspects as well. 15. This court is of the further view that, the learned trial Court has rejected the application observing that, it being a suit filed for injunction simpliciter and the plaintiffs being the masters of the suit, it was for them to identify their opponent. The said reasoning is not correct. It cannot be said that the suit O.S.No.367 of 2023 is for injunction simpliciter. The first prayer is for declaration of the Award passed in L.S.A.No.688 of 2014 in O.S.No.1441 of 2014 dated 02.09.2014 as void being vitiated by fraud and not binding on the plaintiffs and to set aside the same. Admittedly, the petitioner's father was party in that suit and is said to have signed the award, which according to the plaintiff's case, was obtained fraudulently by present 3rd respondent. 16. The learned trial Court has not considered the application in correct perspective nor considering the legal provisions under Order I Rule 10 CPC. The impugned order cannot be sustained. 17. For the aforesaid reasons, the impugned Order dated 08.05.2024 is set aside. 16. The learned trial Court has not considered the application in correct perspective nor considering the legal provisions under Order I Rule 10 CPC. The impugned order cannot be sustained. 17. For the aforesaid reasons, the impugned Order dated 08.05.2024 is set aside. The learned trial Court, i.e., II Additional Civil Judge, (Senior Division), Visakhapatnam, shall decide the application afresh, after taking into consideration the relevant facts, and also the legal provisions of Order I Rule 10 CPC, if the proposed defendant No.2, the petitioner herein, is necessary or property party to be impleaded in the suit. 18. Before parting, this Court at this stage from the material on record finds that; A. In O.S.No.183 of 2017, the plaintiffs' case was based on agreement to sell in their favour by the petitioner's father. The 3rd respondent was not made party in O.S.No.183 of 2017, though the award dated 02.09.2014 was in his favour, passed previous to the institution of O.S.No.183 of 2017. Again in O.S.No.1441 of 2014, the plaintiffs/respondents 1 & 2 were not made party though, as per the case in suit, the agreement to sell was in their favour which was executed on 13.09.2012, i.e., before filing of the suit in 2014. B. Further, initially the decree for specific performance was granted in O.S.No.183 of 2017 which was subsequently amended declaring plaintiffs/respondents 1 & 2 as absolute owners, though any sale deed in their favour either by the defendant of said suit or through Court was not executed. A perusal of the judgment dated 30.04.2018 in O.S.No.183 of 2017 shows that there is mention of Will (Ex.X1) of which PW 2 therein, one K. Karunakar Kumar was the custodian. That Will is said to be in favour of K. Karunakar Kumar, only to the extent of some money to be given to him out of the sale consideration of the agreement to sell. How, based on such Will, the petitioner, respondents 1 & 2 could be declared absolute owner, by amending the part of the judgment as also the final decree? Judgment dated 30.04.2018 also does not show as to how and in what manner the alleged Will (Ex.X1) was proved. 19. How, based on such Will, the petitioner, respondents 1 & 2 could be declared absolute owner, by amending the part of the judgment as also the final decree? Judgment dated 30.04.2018 also does not show as to how and in what manner the alleged Will (Ex.X1) was proved. 19. In view of the observations made by this Court in paragraph-18 (supra), this Court considers it appropriate, in the exercise of supervisory jurisdiction under Article 227 of the Constitution of India, which is judicial, as well as administrative, to keep the subordinate Courts in bounds, to summon the record of O.S.No.183 of 2017, decided on 30.04.2018 and the judgment/decree modified on 27.06.2018 and passed by the Court of the VII Additional District Judge (Fast Track Court), Visakhapatnam, for perusal and for appropriate orders, if required. 20. In the result, i) the Civil Revision Petition is partly allowed, in terms of, as contained in paragraph-17; ii) The Principal District Judge, Visakhapatnam shall ensure submitting the entire record of O.S.No.183 of 2017 along with its report on perusal of such record on the points as mentioned in paragraph-18 (supra), as also of the proceedings of the decree, dated 30.04.2018, up to its amendment, dated 27.06.2018. 21. Post this matter on 30th September, 2024, only for the purpose of perusal of the record in O.S.No.183 of 2017 and the report, as also for the necessary orders, if so required. 22. No order as to costs. Pending miscellaneous petitions, if any, shall stand closed in consequence.