Dismissed

Sri. Praveen Kumar Prabhala, v. Pingle Vasundhara

Telangana HC11 Apr 2023CRP/227/2022

Case brief

AI extract

What is this about?

In a C.R.P lodged under Article 227, the High Court considered whether a petitioner could be impleaded as a defendant in a suit for injunctions filed against his father. The petitioner claimed he became the owner via a registered gift deed. The Court analyzed if he was a necessary party under Order I Rule 10 C.P.C. holding his inclusion unnecessary as the suit concerned his father's actions, and h

What did the court decide?

Petitioner's C.R.P filed under Order I Rule 10 C.P.C. and Article 227 Constitution is dismissed without costs.

Sri. Praveen Kumar Prabhala, Vs Pingle Vasundhara — Property and Title | Telangana HC (2023)

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H,GH COURT FOR THE SI Ar HYDEcfffDoF^TELANGANA

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'ffi 3'iIdJ3i^ft iX,.#if, g,fI""f,*H..

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PRESENT

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THE HONOURABLE SRI JUSTICE SAMBASIVARAO NAIDU ctvILREVISloN PE TITION NO:2270F 2022

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petiti on under Afiicle 221 of thr and Decree Constitution of tndia, against the Order made in 1.A.No.955 of 202 on the file of the XVI Additionat Ol in O.S.No.147 of 2014 dated 30.12.2021 Malkajgiri. istrict Judge, Ranga Reddy District at

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Between:

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...PETITIONERYPETITIONERYPROPOSED

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DEFENDANT NO.2

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AND

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; [$a.;1,]ryffi?g1;#;3[1s* r,;ld"x%: #;; :;",. 3. Cot.^prabhata Madhusud^{...RespottoErvTS/RESpoNDE"r"r"ao,"r,ra"} il:ffi ;iihEd:;fl f^{fl:HEl?3;iJl.!;*'i,11?,satv;'r,'Lva'naii'n"ili!'}

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...RESPONDENT NO.3/RESPONDENT NO.3/DEFENDANT

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IA NO: 10F 2022

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Petition under section 151 cpc praying that in the circumstances stated in the affidavit fired in support of the petition, the High court may be preased to stay arr further proceedings in os No. 1 47 0f 2014 0n the fire of the XVr Additionar District Judge, R.R.District, At Malkajgiri.

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Counsel for the Petitioner : SRl. A VENKATESH

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Counsel for the Respondent Nos.1&2 : SRt VIVEK JA|N

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The Court made the following: ORDER

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HONOURABLE^{SRI ,USTICE SAMBASIVARAO NAIDU}

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227o^f2 c. R^.P.

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DG E NT:

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Being^{aggrievedby the order of learnedXVI Additionai} District^{and Sessions ludge' Ranga Reddy' herein after willbe} referred^{as 'trial Court" in I A'No'955 of 2O2l in OS'No'147 of} 2014^{dated 3o-12-2o!t' where under the petition filed by the} petitioner^{under order IRure r0(1) c.p.c. to impleadhim as} second^{defendant in the above suit was dismissed'the} petitioner/proposed^{defendantfiled this Civil Revision Petition} under^{Article 227 of Constitutionof India'}

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2,Ascouldbeseenfromtheorderimpugnedinthe. present revision,^{it seems the respondents No'1 and 2/plaintiffs} have filed^{o.S.No'147 of 2OI4 seeking perpetual injunctionto} restrain the^{3'd respondent/defendantfrom using17 feet wide road} lying to^{the north of the suit 'A' & 'B' schedule properties and} towards the^{south of Plot No.108-AOf respondentNo'3/defendant} and also for^{mandatoryinjunctiondirecting the} 3'd respondent/defendant to reconstruct^{the dismantled portion of} contpound watl lYing to the north of ,A, &,8, schedule properties during the pendency or the said suit. The petitioner herein filed

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.r&!.'&:e.:'i&.E* {3

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55RN,] C.R.P No.227 ol 2e22

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LA.No.955 of 2021 in Order I Rule 10(1) C.p.C. praying the Court to implead him as a second defendant to the main suit.

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In the affidavit filed in support of the petition, the petitioner has submitted that the 3'd respondent/defendant is no other than his father and he is aged about B1 years suffering from age rerated hearth issues and due to the pandemic conditions prevailing at the time of filing this petition and also out of love and affection, respondent No.3/defendant transferred prot No.10B-A property in favour of the petitioner herein by executing a registered gift deed on 24-L2-2020. Therefore, the petitioner became absolute owner of the said property, thereby, he wanted to participate in the triar to defend the suit craim and arso for a proper and complete adjudication of the dispute. The petitioner has claimed that he is proper and necessary party in the above suit and if he is not added as second defendant, he will be put to irreparable loss and hardship and the adjudication of the suit would be incomprete. He has arso craimed that in the absence of petitioner as a party to the suit, it will lead to multiplicity of litigation.

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The respondents/plaintiffs opposed the petition. The second plaintiff filed counter affidavit and submitted that they have filed the main suit against resporldent No.3 for injunction in

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f SS8N,J C R.P No 227^{of 2022}

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respect of road^{existing at the suit'A' &'B' schedule properties'} The cause of^{action arose against respondentNo'3/defendant'The} evidence oF the^{plaintiffs was already concludedand} 3'9 respondeni:/defendant^{produced his evidenceand when the} matter was^{postedfor further evidenceof defendant,the petitioner} hasmovedtheabovereferredinterlocutoryapplication.The petitioner is no other^{than son of the defendant but he cannot avail} any special^{right or interest beyond the relief for whichthe} defendant^{is entitled to. Since the petitioneris claimingright on} the property^{by way of registered gift deed whateverright or} interest the^{3'd respondenti e', the defendant has got' the} petitioner will be^{entitled to the same rights but he has no locus} standi to^{file the applicationseekinghis impleadment in the suit'} The^{petitionfiled by the petitioneris devoidof merits and sought} for dismissal^{of the} Petition

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The learned trial^{ludge having consideredthe affidavit} of the^{petltioner, counter affidavitof the second plaintiff and} having heard^{both parties, dismissedthe application vide order} dated 30-12-2021.

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6, The petitioner has^{filed the present revision on the} following grounds :

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:..r::-!ffira:l:

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ssBN,l C.R.P. No.227^{of 2022}

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The trial^{Court erred in not consideringthe established} principles oF law^{in respect of implead applications and passed the} impugned order^{without appreciatingthe facts' The trial Court} ought to have^{considered the petitioneris a necessary and proper} party to the suit^{and oughtto have impleadedhim as defendant} No.z in the^{present suit' The trial Court oughtto have seen the} petitioner herein^{has stepped into the shoes of the defendantNo'1} by way of Registered^{Gift Deed and is now the absolute ownerand} possessor of Plot No.10B-A^{and he has got every right to defend} the suit.

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The^{petitionerfurther claimed that the trial Court} ought to have^{allowedthe interlocutory applicationinstead' of} dismissing the^{same. The trial court ought to have appreciated,} the object of^{Order I Rule 10 C'P'C' is to bring on record all the} persons relating to the^{subject matteras parties to the dispute to} avoid multiplicity^{of proceedings and the absence of petitioneras} defendantNo.2intheaboveproceedingsWouldresultin multiplicity of^{proceedings.The trial Court held that the general} rule in regard to^{impleadment of parties is that the plaintiff' being} dominus litus,^{may choosethe personsagainst whom he wishes to} litigate, but^{the trial Court failed to appreciate the settled law that'}

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SSRN,] C-R-P - l1o-227 of 2022

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this general rule is subject to the provisions of Order I Rule 10 C. P. C.

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B. The trial Court failed to consider that Order I Rule 10 C.P.C. gives a very wide discretion to the Court to deal with any situation which may result in prejudicing the interest of the affected party if not impleaded in the suit and where the impleadment of the said party is necessary and vital for the decision of the suit, The trial Court failed to consider the fact that petitioner has accrued rights from the defendant by way of the registered gift deed, the Court ought to have passed an order allowing the petition to see that the suit could be continued against the petitioner, in accordance with Order XXII Rule 10 of C.P.C.

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The trial Court failed to apply the test for impleading parties, that the person concerned must be having a direct interest in the subject matter, and the rights of.the petitioner are very much aFfected by the present suit. The petitioner claims that the trial Court erred in concluding that the implead petition is filed at a later stage i.e., at the time of respondent's evidence, but failed to consider the ratio that the word "At any stage" in Order I Rule 10 C.P.C. means that there is no requirement of law that an application for addition of party as defendant must be made at a particular stage oF trial, more particularly, when the proceedings

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i*t

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55RN ] C-R.P- No)21 of 2A2)

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are pending adjudication. The trial Court failed to appreciate the fact that the presence of petitioner is appropriate for proper adjudication of the dispute and that the petitioner has acquired substantial rights, by way of registered Gift Deed and this Court has failed to consider the same, whire dismissing the petition fired under Order I Rule 10 C.p.C. The trial Court ought to have appreciated that^plot No.10B-A was already transferred to the petitioner herein under the registered gift deed, and he is both a necessary and proper party to the suit, as the suit relief are sought against all persons craiming through the defendant. The triar Court erred in holding that no cause of action arose to the plaintiffs against the petitioner and ought to have appreciated the fact that the Decree if passed would bind the petitioner also as he is , claiming the property from defendant No.1 and defendant No.1 being aged is not in a position to defend the suit effectively.

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Heard both parties.

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LL. Now the point for consideration is :

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Whether the trial Court is wrong in dismissing the petition filed by the petitioner. if so, whether the petitioner can be impleaded as defendant in the suit filed by the respondents/plaintiffs?

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As could be seen from the entire record, admittedly,

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the suit filed by the respondents was for perpetual injunction to restrain the defendants i.e., father of the petitioner who

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._xl

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SSRN,J C.R.P^No.227 of²⁰²²

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subsequently executed a^{gift deedin respect of his property to the} petitioner herein and also for mandatory^{injunctionfor a direction} to him to reconstruct^{the portionof compoundwall whichwas} demolishedbyhim'TherespondentS/plaintiffshavefiledtheSuit with a specific^{plea that theyhavegot absolute right on the plaint} A, B schedule^{properties, respondent/defendantis owner of Plot} No.1OB-A a vacant^{site, there is a 17 feet wide road on the North} oftheplaintA&BpropertieswhichismeantforaccessforPlot No.C/19, E/24 and^{E/25 as per lay out, but it is a thorough fare'} Earlier it was^{20 feet wide road, but reduced to 17 feet'} Respondent/defendant^{has a separate approachroad towards} North. But he demolished^{a portion of his compound wall with a} view to erect a^{gate,so that he can haveaccess to the above'} referred road. The^{respo nde nt/pla intiffs have averred that the} respondent/defendant^{was trying to erect a gate to claim accessto} the road, thereby,^{soughtfor perpetualinjunction against him and} also for a mandatory^{injunctionfor reconstruction ofthe} demolished wall.^{The plaintiffs being Dominus Litus have got right} to choose against^{whomthey can proceed and they cannotbe} forced to add any^{person as party defendant.}

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As per the counter affidavit filed by the respondents/plaintiffs, it appears that the evidence of plaintiffs

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S5RN,] C-R-P. No.227 ot 2022

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was already recorded and defendant also produced his evidence. The petitioner want to come on record on the basis of gift deed executed by his father, after the material portion of evidence is recorded. He being donee of the property may nof. have rights more than the rights of his father. As rightly observed by the trial Court, the respondents/p la intiffs have no cause of action against the proposed party. The petition was filed under Order I Rule 10 oF C.P.C. according to which, the Court can implead any person as party to the suit for complete and proper adjudication. Since the suit was filed by the respondents/plaintiffs for permanent injunction and mandatory injunction, it is for them to establish their case. Already the respondent/defendant, adduced his evidence. In such a case, there may not be any further evidence on behalf of defendant. Being donee of the property, the petitioner will have the same rights and liabilities which his father was having.

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L4. It is true the theory of Dominus Litus should not be overstretched in the matter of impleading of parties because it is the duty of the Court to ensure whether the proposed party is proper and necessary party. In a Judgment reported in

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-n

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SSRN,J C.R.P. No 227 of 2022

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'Anil Kumar Singh vs Shivnath Mishra And Gadasa Gurul, it

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was held that :

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"Though the Court may have power to strike out the name of a party improperly joined or add a party either on application or without application of either party, but the condition precedent, is that the Court must be satisfied that the presence of such parties could be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit. The object of the rule ts to bring on record all the persons who are parties to the dispute relating to the subject matter so that the dispute may be determined in their presence at the same time without any protractton, inconvenience and to avoid mu I ti pl icity of^p roceed i ng s".

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In a ludgment between 'Vidhur f mpex and Traders

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Private Limited and Others vs. Tosh Apartments Private

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Limited and others'2, it was held that :

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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,

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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.

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A proper party is a person whose presence would enable the Couft to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.

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SSRN,] C R.P. No.227 of 2A21

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If a person is not found to be a proper or necessary partyt the Court does not have the^jurisdiction to order his impleadment against the wishes of the plaintiff.

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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.

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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 propefty in violation of the restraint order passed by the Court or the application is unduly delayed then the Couft will be fully^justified in declining the prayer for impleadment.

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L6. In the present case, the petitioner who is claiming right on a Plot i.e., PIot No.10B-A which is not the suit schedule property wanted the come on record as a defendant. In fact, the defendants/plaintiffs have alleged that the father of the present petitioner has demolished portion of his compound wall and wanted to create access on to a road over which he had no such right, thereby, sought for perpetual injunction to restrain such actions and for a direction to restore the above said compound wall. Therefore, the claim of respondenti/plaintiffs is against the defendant only. The said dispute can be effectively and completely determined on the basis of evidence already adduced by respondents/plaintiffs who are on record. The absence of petitioner or the addition of the petitioner to the suit will not influence the decision of the Court. As such, the petitioner is not a

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SSRN,J C-R.P. No.227 ot 2022

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'proper/ or'necessary, pa rty and the trial Court righfly dismissed

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his petition.

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In the result, C.R.p. is dismissed. No costs.

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Consequently, Miscellaneous applications if any, are closed.

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//TRUE COPY//

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Sd/- K. VENKAIAH ,,/

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ASSISTANT REGISTRAR^/

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SECTION OFFICER

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To, 1. The XVI Additional Disrri6t Juf,g6, R.R.District, At Arlatkajgiri ?. 9"u^{CC to Sri A.Venkatesh,} eaiocaie idpui)'^{^.} 9 9nu^{CC to Sri vivek Jain} , Ad;;;;;'io'F'Udi, fl.^{,*o CD Copies}

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kam

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HIGH COURT DATED:1 110412023

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ORDER

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CRP.No.227 ot 2022

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