Disposed

Boora Prabhakar v. Panthangi Dashratha

Telangana HC23 Jan 2024CRP/967/2023

Case brief

AI extract

What is this about?

In a suit for specific performance, the plaintiff sought impleadment of third parties who had purchased lands from the defendant during trial. The High Court found the alienated properties lay in different survey numbers than the suit schedule land and that allowing impleadment without notice violated natural justice.

What did the court decide?

Impugned impleadment order set aside; trial court directed to issue notices to proposed parties and pass a reasoned order on merits after hearing all parties before proceeding with the suit.

Boora Prabhakar Vs Panthangi Dashratha — Specific Performance | Telangana HC (2024)

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132151

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IN THE HIGH COURT FOR AT HYDTJREABhTE^{OF TELANGANA}

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TUESDAY, THE TWENN n uo inb u'sal'ri I IBr mp0IyoIJ# uAR^y

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PRESENT

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THE HONOURABLE DR. JUSTICE G.RADHA RANI ctv LREVtstoN PETtTto NNOi 967 OF 2023

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petiti order dated on under Arlicle 227 of the Constitution of lndia aggrieved by the 16.02.2023 in l.A.No. 1 06 the Court of the Principat Distrid Judge:tffiJ:,t^{tNo'3 of 2018 onthe file} of

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Between:

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P;3:?,5:gll,:[l: "'ift^{"XiJ[,lTl,X],;1S,?,t, gli*Ti occ Business, R o}

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AND ,..REVtstoN PETIT|ONER/DEFENDANT

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[3!:lxl'i9fl :!!i'8fl ,,yft ,,",r],i#i,8,$fl :,.r?f6:,.i,occAsricu,ture,Ro

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...RESPONDENT/PLAINTIFF

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IANO:1 oF2023

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petition under Sect ;J:.:fi,i:h:":#,:i*Hil,il::,,5:J:l"T:T::ffi:.:::: lgs in o'S'No' 3 of 2018 on the file of Principar District Judge, suryapet.

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Counset for the petitioner: SRl. KOYA PRABHAKAR REDDY Counset for the Respondent: SRl. VENUGOPALA RAO PASNOORU The Court made the following: ORDER

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THII HONOURARLtr DR.JUSTTCE G. RADHA ITANI

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CIVIL REVISTON PIiTITION No.967of 2023

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ORDER:

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]-his civil Revision Petition is fiied by thc petitioner - delendant aggrieved by the orders in I.A.No.l06 of 2023 in o.S.No.3 of 20lg on rhe file ot-the Plincipal District Judge, Suryapet.

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2 l lcard Sri K.t')rabhakar Reddy, lea.,cd counscr fbr rhc petiti.rcr a.d Sri VcnLrgopal Rao Pasnooru, Iearned counsel for trrc rcspondent - plainti(t.

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I 'l'l,c rcspondent - plaintifl flled O.S.No.l ol 20lg scckinlt specific pcr'lbrrnance o1- contract .and to declare rhc rcgistcrc(l salc dccci bcarirrg No. I 130 ol 20)i and regisrc'ed salc cleed bearinq No.2gi ol 2022 datcd ll 0i.2022 as nuil and void and rrot bincling on hirn. 'fhe suit sche<lule propcll), ,uvas shorvn as z\c. l -()!rgts. ol' tir;. land in Sur.vcv No.9ij ol' Kudakuda Village . (.hiverlla Mir.dal and Ac.l-0 Igts. of lemon ga'den in Survcy No.9g.f Kudakuda village of Chivcnila Mandal, Sr.rryapet District. cornmon boundar-ies ,,vcre shoivn to both thc propefties as East: I [ousc plots .l i).Natlcshw.ar [(ao. Wesl : [.arrd ol Nagi I{cddy, North: l-and of Sadu vishw,anaclha ltcddr,. anci South: l-lud ol. L-odangi Narsantma.

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Dr.GRR, J crp_967_202J

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T'he sale consideration was alleeed to be fixed at Rs.1,5 5,00,000/- lunip sum for the entirc Ac.2- l0gts. oi tuna"una it was also stated that an amount ol Rs.2,00,000/- was paid towards E.anrest Money by the plaintiff to thc defendant on 09. 10.20 I 7. As per the terms and conditions of the agreement of sale, the plaintilf agreed to pay the second installrrrent equivalent to one-fourth of total consideration an'rount i.e . Rs.38,75,000/- by 25.10.2017 and afler receipt olthe said arnount, thc delendant agleed 1o execute a final agreerncnt of sale in favor ol the plaintilf and as per the terrns and conditions of the sale agreemcrrt, the plaintiff agreed to pay thc cntire salc considcration by 09. 10.201 8.

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lt was contendeci that the p laintifl' arranged the second installmcnt arrount by 20.10.2017, but the def-endant postponed to rcceivc the same. As such, he got issued a lcga[ notice on 01 .12.2017 lcrr rvhich tlre defcndant gavc repl1,. But as the def'endanl rvas making iblse allegations in his lepty, filed the suit.

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The defendant llled written statement contending that it was a joint farnily property bclonging to him and his brothers. He was not having exclusive right over the samc, the sarne rvas clearly lnentioned in the agreement of salc dated 09.10.2017, but the plaintiff suppressed the same. The boundaries mentioned were false and fictitious. No boundaries wele mentioned in the sale agreement. The plaintilf lailed to come forrvard to pay one-fourth of the total saie considelation as agreeri anci cornrnitteci cief'auit. In the reply notice given b1,

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Dr.GRR, J crp-967 _2023

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him, he clearly stated that the propefty was not paftitioned between the famiry mer.rbers and the other family members did not come rorward to execute any sale agreement in continuation of the preliminary sale agreement and as such he offered to return the Eamest Money of Rs.2,00,000/- received under the preliminary agreernent alo.g with interest @ 24 % per annum. The ptaintiff pressurized him in entering into the preriminary sale agreement. His etder brother filed o.S.No.3 I of 2018 for partition and separate possession including the suit schedule land before the senior civir Jurlge court, Suryapet. An Inte'rr lnJunction r.r'as granr-ed by the court restraining the der-endant and his another brother frorn alienating the lands and prayed to dismiss the suit.

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7 - During rhe course of trial, the plaintiff adduced evidence. when the matter ^,as coming up [br. the def-endant's evidence, the plaintifl file,J I.A.No. 106 ol 2023 seeking impleadment of the proposed parties as derendants 2 and 3 and for consequential amendment of the plaint under order l Rule l0 read with Section l5l of cpc and Rule 2g of civil Rules of pracrice contending that he carne to know that the defendant with an intention to cause loss to him, got registered the suit schedure property in favor of his mother-in-raw by name Gabbilala Pullamrna through regisrered sale deed No. 1230 ol202l in respect of land to a, extent of Ac. r- t2gts. in Survey No.9g/u4 situated at Kudakuda Village, Chivemla lVlandat. 'fn".eu?ei] Gabbilala pullamma sotd the land in favor of one Kodati Madhava Rao through registered sale deed No.2g2 of 2022

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Dr.GRR, J ct'p :ro t _LvLJ

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and the defendant also sold sotne of the suit land in^{lavor of KodatiMadhava} Rao through registered sale deed No.283 of^{2022 in SurveyNo.95/A2 to an} extent of Ac.0-l5gts. and Sulvey No.96/82 to an^{extent of Ac.0-15gts.situated} at Kudakuda Village, Chivemla Mandal. The defendant^{transfened the suit land} in favor of Gabbitala Pullarna and Kodati Madhava^{Rao and they were also} proper and necessary pa(ies to tlte suit.

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The defendant filed counter contending^{that he got the land through} partition decree in a diflerent sut'vev nutnber with^{differentboundariesand} under different extents and the sanrc^was sold^{to the proposed defendantNo.2} two years ago aud thereafter thc^{ploposed delendantNo'2 sold to proposed} defendant No.3 one ycar ago.^'t'hc said^{f'acts u'crc known to the plaintiff.Only} to harass the third parties, he filcd thc^{pctition to impleadthcrn. The properties} purchased by the said third parties wele diflerent frorn^{the plaint schedule[and.} As such, they were not necessary^parlies for^{adj udicationof the matter in} dispute.

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g. The [earned Plirrcipal District Judge, Suryapet^{vide irnpugned orderdated} 16.02.2023 allowed tl.re petition observing^{that the contentionof the defendant} that the property was not one and the same^{could be looked into at a later stage}

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during the trial.

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Dr.G RR, J crp_961_2023

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Agglieved by the said order in t.A.No.l06 of 2023 in O.S.No.3 ol 2018 dated 16.02.2023, the defendant prefeffed this revision contending that the trial court ought not to have allowed the implead petition without issuing notice to the ploposed pafties.^'Ihe same was against the principles of natural justice. Serious prejudice would be caused in impleading the parties without issuing notice to them. The trial court prima-facie failed to see whether the irnpleading parties werc necessary or proper parties to the suit proceedings. lhe trial court lailed to see that the property alienaLcd by the revision peritioncr was not the suit schedulc propcrty. Even assuming that the property alienated by the revision pctitioner rvas suit schedule propefty, even then no prejudice would be caused to the plaintill, as there were no prohibitory ordel's not to alienate the suit schedule property. 81, allowing the petition, it would have the cllect ol altering the character of the suit fiom that of specific pertbnnance to that of a suit based on litlr:. I'he issues to be decided in a suit fbl specific perfbrmance were within the pararneters of the contract entered by the palties. There was no scope lor the third parties to agitate the issues arising out of contract, who were not partics to the contract and prayed to set aside the impugned older.

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I l. The learned counsel lor the petitioner - delendant contended that the suit was based not on an agreemcnt of- sale, but on an advance receipt. No boundaries u,ere r-nentioued in the advance receipt. It was not known as to horv the ptaintiff me ntioned the boundaries in thc plaint and the basis lor rhc sanre.

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Dr.GRR, J crp-967 2A23

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The suit schedule propefty was showu as r\vo properties in thc same survey

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No.98, one dry land and the other lernon garden. 1'he properly sold by the petitioner - defendant to G.Pullamrna was in Survey No.9glu4. The lemon garden was not reflected as one of the boundaries in the said sale deed. If the petitioner had sold the suit schedule propefty, then one of the boundaries should be the lemon garden.^'l'he other property sotd by the petitioner - defendant in favor of Kodati Madhava Rao was in Survey No.95/A2 and 9(tlE2. They were completely different survey numbers. ',vhich were not related to the suit schedule property, which was shown as in Srrrvcv No.98. No prejr"rclice would be caused cven if the said proposcd parties wele not irnpleaded, as the doctrine of lis pendens covers the Lnatter. Allou,ing the petition without issuing notice to the proposed pafties was in violation ol principles of natura[ justicc and relied upon the judg,rcnt of the l{igh court of Himachal pradesh in Sh.Ashwani Kumar and Another v. Sh.Sanjal, Kumar and Othersr and prayed to set aside the order of the leamed Principat District Judge in I.A.No. 106 of 2023 in O.S.No.3 of 2018.

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t2 The leamed counsel for the respondent - plaintiff on the other hand contended that in the partition suit in o.S.No.3 I of 201g, the defendant was allotted a share of Ac.2-01gts. in Survey Nos.95,.96 and 9g. There was no land left in the name of the defendant afte. selling the above lands to the proposed

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'Civil^{Miscellaneous} Petition No_i l l of 2018 dated 16.0i.2019

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Dr.GRR, J ctp_967 2023

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defendants. If the parlies were not impteaded, the execution would be difficult. There was no illegality in the order of the trial court, as the proposed parties were proper and necessary parties and prayed to dismiss the petition.

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Perused the record

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The record would disclose that the suit schedure property was alreged to be in Survey No.98. Two properties (one Ac. l-09gts. of dry land and the other Ac. l-0lgts. of'lernon -earden) were shown with common boundaries situated at Kudakuda Villagc, Chivemla Mandal, Suryapet Disrricr.

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The sale deeds lired arong with the petition pertaining to the proposed def'endants would sh.r," that they were pertaining to dilferent survey numbers (Ac'l-l2g1s. in Sun'ey No.98/u4 and Ac.0-r5gts. in Survey No.95/A2 and Ac.0- l5gts. in survey No.96/E2). N.ne of rhese sale deeds would discrose lemon garden as one or'its bor-rndaries, as rightly contendecr by the learned counsel lbr the petitioner - dcf'errdant. No amendment petition was fited by the respondent - plaintiff either to change the boundaries or the survey number ol the suit schedule propefty till date.

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As such. whcn thc' properties sold b-v the peritioner - defbndant to third pafties were in differe.t survel,,u,bers, without issuing notice to the proposed pafiies, the lea,red Pri,cipar I)istrict JLrdge, Suryapet alrowing the petition

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Dr.GRR, J crp_961 202s

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stating that the same can be considered at a later stage during^{trial is imploper} and also in violation of principles of natural^j ustice.

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In the citation relied by the leamed counsel for^{the petitioner- defendant} pertaining to the High Court of Himachal Pradesh in Sh.Ashwani^{Kumar and} Another v. Sh.Sanjay Kumar and Others^(cited supra),^{the High Courtplaced} reliance upon a 3-Judge Bench^judgment of the Hon'ble^{Apcx Court in Kasturi} v. Iyyamperumal and Others [(2005) 6 SCC 733], wherc in two^{tests are} specified for detennining the question as to^who is^{nccessary paffy as: t) there} rnust be a right to son-re lclicf against such ltarty^ir-r fcspect^{of the controversies} involved in the proceedings and 2) no ellective^{dccrcc car.r bc passed in the} absence of such party

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As this is a suit lol specilic pcrlortnance ol-^{contt'act,there was no} agreement between the plainti[land the^proposed llarties^{and an et-fectivedecree} can also be passed even in the absence of^{impleading them as parties, as any} alienation made by the parlies during the^{pendcncy of the suit is subject to the} doctrine of lis pendens

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In the absence of issuing any notice^{to the proposedparlies, they wilt be} deprivcd of putting forth theil stand belore^{the Court and to oppose the} application. They would be losing an opporlut.rity^{to respond to the application} fited by the respondent - plaintiff and to take ali^{pleas avaiiable} to^{tlteur in}

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DT.GRR'^J crp-961²⁰²³

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opposing^{the saidapptication'whicl.rwas in violation of principtesof natural} justice. The Coutt^{atso wouldhave an opportunityto pass a reasoned order} whether^{to imptead themor not after taking note of the respective pleas of the} parties. As^{such, allowing the petition withoutissuing notice to the proposed} parties would^{causeprejudice to the petitioner - defendantas wellas the} proposed Parties.

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zo. As^{such,it is considered frt to set aside the impugnedorder passedby the} learned^{PrincipatDistrict Judge' Suryapetin I'A'No'106of 2023in O'S'No'3 of} 2018datedl(l.02.2023atrdthetrialcourtisdirecterltoissrrcnoticestothe

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proposed^{parties and to pass orderon merits after hearingall the parties and} thereafter^{to proceed with the suit' [t is also made clear that the trial court shall} not bc^{influencedby any of the observationsmade by this Court whiledeciding} the present Petltloll

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2t. ln the result,,^{the Civit RevisionPetition is disposedor with the above} directions.^{No orderas [o costs}

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As a sequel.^{miscellaneousapplications pendingin this petition if any}

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shall sund^closed.

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Sd/-N. SRIHARI ASSISTANT REGISTRAR V,,/ I/TRUE COPY'/

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SECTION OFF]CER

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To, 1 The Princioal District^{Judge, Suryapet'} 2 3 4 H:stlltTr+?ihi$dHmm$,rt^',Hi"fr^{;li*"s.'3,,",} 5 Two CD CoPies VH \y