Andhra Pradesh High Court - Amravati
Pitta Ramesh vs Poosarla Vineel Kumar on 20 December, 2024
1
* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
+C.R.P.No.3028 OF 2024
% 20.12.2024
# Pitta Ramesh
......Petitioner
And:
$ P. Vineel Kumar and others.
....Respondents.
!Counsel for the Petitioner: Sri Arrabolu Sai Naveen
^Counsel for the respondents : Nil
<Gist:
>Head Note:
? Cases referred:
1
2022 (5) ALT 656
2. 2020(4) J&K 79
3.(2005) 6 SCC 733
4.AIR 1964 SC 1809
2
HIGH COURT OF ANDHRA PRADESH
C.R.P.No.3028 OF 2024
DATE OF JUDGMENT PRONOUNCED: 20.12.2024
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals
3. Whether Your Lordships wish to see the Yes/No
fair copy of the Judgment?
_______________________
RAVI NATH TILHARI, J
3
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
C.R.P.No.3028 OF 2024
JUDGMENT:
1. Heard Sri Arrabolu Sai Naveen, learned counsel for the petitioner.
2. This civil revision petition (C.R.P) under Article 227 of the Constitution of India has been filed by Pitta Ramesh challenging the order dated 20.11.2024, passed by the IV Additional District Judge (FTC), Chodavaram in I.A.No.30 of 2024 in O.S.No.162 of 2019, rejecting the I.A.
3. The petitioner is the third party/proposed defendant in O.S.No.162 of 2019. The respondents 1 to 4 are the plaintiffs in the suit and the 5th respondent is the sole defendant.
4. The plaintiff-respondents filed O.S.No.162 of 2019 against the defendant for a decree of eviction of the said defendant from the plaint schedule property as also for recovery of an amount of Rs.56,43,996/- towards arrears of rent against him. The plaintiff's case, inter alia, is that the defendant, is the tenant of the suit schedule property. The plaintiffs are the landlords/lessors. They jointly executed a lease agreement/the lease deed dated 27.01.2015, registered at Registrar's office, Chodavaram as 4 document No.261/2015. The lease period came into force with effect from 27.01.2015 upto 26.06.2021, for a period of six years and on expiry of the lease period, the said defendant had to hand over the lease hold premises giving its possession to the plaintiffs. The defendant violated the terms of the lease deed, so, the plaintiffs issued notices which were also replied by the defendant.
5. In O.S.No.162 of 2019, the petitioner, a third party, filed I.A.No.30 of 2024 for his impleadment as defendant No.2. He submitted inter alia that the defendant in the suit entered into a sub lease agreement dated 13.07.2018 with him. He paid the advance amount, also the rent and was in possession of the leased out premises. The sub lease agreement was in terms of the lease by the plaintiffs in favour of the defendant. So, his case was that the sublease in petitioner's favour by the tenant- defendant in the suit was in terms of the main lease, the plaintiffs were bound by the same, as the defendant in the suit had the right to sublet. Consequently, in the suit, the petitioner should have been impleaded.
6. The plaintiffs 1 to 4-respondents filed the counter. They opposed the application for impleadement. They raised various 5 pleas. Their main contentions in opposition of application for impleadment were that the contract of lease between the plaintiffs and the defendant expired on 26.01.2021. The alleged sub-lease was neither binding on the plaintiffs nor could survive, even otherwise, after 26.01.2021 on which date main lease came to an end. The petitioner had no locus to seek his impleadment.
7. The defendant-respondent No.5 also filed the counter, not disputing the execution of the sublease by him with the petitioner on 13.07.2018 but denying the other material allegations. He submitted that the petitioner was in no way concerned with the suit and the application for impleadment was not maintainable which was liable to be dismissed.
8. The learned court of IX Additional District Judge (FTC) rejected the application vide order dated 20.11.2024. It was held that the original sub lease dated 13.07.2018 was not filed before the Court. Only a Xerox copy was filed which showed that the sublease was an unregistered document. Under the law, if the lease for a period of two and half years was liable to be registered, and it being unregistered and Xerox copy, the same could not be taken into consideration. The learned court further held that the main lease deed between the plaintiffs and the 6 defendant expired on 26.01.2021. So, the unregistered sublease could not survive beyond 26.01.2021, and based thereon the petitioner could not be impleaded in the O.S.
9. Learned counsel for the petitioner submitted that the correctness of the sublease agreement dated 13.07.2018 could not be seen at the stage of the impleadment application. It could be determined only during the trial. The rejection on the ground that the sublease was unregistered and could not continue beyond 26.01.2021, were not relevant factors upon which the application could be rejected.
10. Learned counsel for the petitioner next submitted that the petitioner also instituted O.S.No.31 of 2024 before the Principal Civil Judge (Junior Division) Court, Chodavaram against the plaintiffs 1 to 4 and the defendant for permanent injunction. He filed T.O.P No.07 of 2024 in O.S.No.31 of 2024 under Section 24 C.P.C to withdraw O.S.No.31 of 2024 and to transfer to the court of IX Additional District Judge (FTC) for trial along with O.S.No.162 of 2019. The same was allowed by the learned Principal District Judge, Visakhapatnam by order dated 05.11.2024 and as such the petitioner was required to be impleaded in O.S.No.162 of 2019, to avoid multiplicity of legal 7 proceedings and the possibility of conflicting decrees in the suits.
11. Learned counsel for the petitioner placed reliance in A. Parandhama Reddy vs. M/s. Shivani Shivatmika Movies 1, and in Deepak Kumar vs. Mithun Khajuria and others2.
12. I have considered the submissions of the learned counsel for the petitioner and perused the material on record.
13. Order 1 Rule 10 CPC reads as under:
"Order 1 - Parties to suits Rule-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 thought 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.
(2) Court may strike out or add parties- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or 1 2022 (5) ALT 656 2 2020(4) J&K 79 8 defendant, be struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended--
Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copes of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.‖
14. A bare reading of the aforesaid provision shows that the Court may direct addition of any person who ought to have been joined or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. 9
15. Under Order 1 Rule 10 C.P.C the petitioner had to satisfy as to how he was a necessary or proper party. The petitioner's case for impleadment was based on the sublease by the defendant in his favour for a period of two and half years. Firstly the original of the sublease was not filed. It was unregistered though under law it was required to be registered. When unregistered and the original not filed. So, liable to be ignored. The trial court was justified in looking to that aspect of the matter. That document was the very basis of the petitioner, seeking his impleadment. It cannot be accepted that ignoring all such relevant aspects and leaving it for consideration during trial, the application for impleadment should have been allowed.
16. In A.Parandhama Reddy (supra) is a case for grant of temporary injunction under Order 39 Rules 1 and 2 CPC. In that context, it was observed that the correctness of the documents relied upon by the plaintiff in a suit should be determined during the trial and not at the interlocutory stage. It is settled in law that at the stage of consideration of temporary injunction matter, a detailed enquiry is not to be conducted. The court has to see inter alia the prima facie case, that is, if a case for trial is made 10 out, based on the material on record. At this stage the trial court shall not hold mini trial.
17. There is no dispute on the proposition of law as in A Parandhama Reddy (supra). But, that would apply to a case under Order 39 Rules 1 and 2 CPC. The same principle cannot be applied in the present case of consideration of an application for impleadment.
18. The other reason the learned trial court has assigned is that a sublease cannot continue beyond the period of the main lease. It has not been disputed that the main lease was for a period of six years, which came to an end on 26.06.2021. Consequently, even sublease could not survive beyond 26.06.2021.
19. The other submission of the learned counsel for the petitioner is that the petitioner is in possession of the suit property. He could not be evicted. If the order of eviction is passed in O.S.No.162 of 2019 against the 5th respondent - defendant, the petitioner would be dispossessed. This court is of the view that even if it be taken that the petitioner is in possession, that would not make the petitioner a necessary party. The suit is filed by the plaintiff- respondents for ejecting the 11 defendant-tenant and for recovery of the arrears of rent and mesne profits against him. There is no privity of contract between the plaintiff-respondent and the petitioner. The petitioner, firstly, could not establish any sub-tenancy and secondly, the law does not require that the sub-leasee need be made a party.
20. In Kasturi v.Iyyamperumal3 the Hon'ble Apex Court observed and held in Paragraph-13 as under:
―13. From the aforesaid discussion, it is pellucid that necessary parties are those persons in whose absence no decree can be passed by the court or that there must be a right to some relief against some party in respect of the controversy involved in the proceedings and proper parties are those whose presence before the court would be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person.‖
21. Thus, it is settled that the necessary parties are those persons in whose absence no decree can be passed by the Court or that there must be a right to some relief against some party in respect of the controversy involved in the proceedings and proper 3 (2005) 6 SCC 733 12 parties are those whose presence before the Court would be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person. The person must be directly or legally interested in the subject matter of the litigation whether it be a question relating to movable or immovable property.
22. In Rup Chand Gupta vs. Raghuvanshi Private Limited and another4 where an ex parte decree was passed in favour of the landlord and against the tenant, an application for setting aisde the decree was made by the sub tenant under Order 9 rule 13 C.P.C contending that the decree was collusive inasmuch as the sub tenant was not joined as the party defendant, the Hon'ble Apex Court did not accept such contention. It was observed and held as under in para 12:
―12. Taking the last action first, viz., Raghuvanshi's omission to implead the appellant, it is quite clear that the law does not require that the sub-lessee need be made a party. It has been rightly pointed out by the High Court that in all cases possession of the laid on 4 AIR 1964 SC 1809 13 the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object, of the landlord is to eject the sub- lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub- lessee. This may act harshly on the sub-lessee; but this is a position well understood by him when he took the subleases The law allows this and so the omission cannot be said to be an improper act.‖
23. In Deepak Kumar (supra), relied upon by the learned counsel for the petitioner the facts were that the respondent No.7 therein claimed to be in possession as a tenant of that premises.
The 1st respondent therein was also claiming to be in possession as a tenant of such premises. It was observed by the High Court of Jammu and Kashmir that the controversy involved in the suit was that both the respondents 1 and 7 were claiming to be the tenants of the suit premises and looking to such nature of the controversy, the presence of the 7th respondent, though may not be necessary, but would definitely enable the court to effectively and completely adjudicate the controversy involved in that suit. The 1st respondent therein was claiming to be the joint tenant along with the 7th respondent, whereas the 7th respondent, was claiming to be in excessive possession as tenant. 14
24. The present is not a case of that nature. It is not the case of the petitioner that he is the tenant of the plaintiff respondents, either exclusively or jointly with the defendant respondent. As per his case, he is sub-tenant. Here any question as regards tenancy either exclusively or jointly with the defendant-respondent is not to be determined. So, the presence of the petitioner is not required in the suit. I am of the considered view that the petitioner is neither necessary nor a proper party, for effective adjudication of O.S.No.162 of 2019. Admittedly, the 5th respondent is the tenant. For determination, if he had committed default or violated the terms and conditions of the lease with the plaintiff land lord, the presence of the petitioner is in no way required.
25. The next submission of the learned counsel for the petitioner is based on O.S.No.31 of 2024 filed by him which was transferred to the same court where O.S.No.162 of 2019 is pending. I am of the view that, that can be no ground to make him necessary or proper party for his impleadment. The ground to avoid multiplicity of the legal proceedings and of the possibility of conflicting decrees is also not a submission which can be accepted. The reason is that, both the suits are pending in the 15 same court. The Principal District Judge, Visakhapatnam passed an order dated 05.11.2024 in T.O.P.No.7 of 2024 as under:
―22. In the result, the petition is allowed without costs. O.S.No.31 of 2024 pending before the Principal Civil Judge (Junior Division), Chodavaram is withdrawn and transferred to IX Additional District Judge, Chodavaram for disposal according to law. The Principal Civil Judge (Junior Division), Chodavaram is directed to transmit the entire record duly indexed within 15 days from the date of receipt of this order and submit compliance report. The respected IX Additional District Judge, Chodavaram may take decision either to club the suits O.S.No.31/2024 and O.S.No.162/2019 pending on its file or to try simultaneously and pronounce the judgments as per law. The respected IX Additional District Judge, Chodavaram is also requested to dispose both the suits within the time frame of two months. The parties and counsels are directed to attend before the respected IX Additional District Judge, Chodavaram on 14.11.2024 without further notice and assist the trial court for disposal of the suits within the time frame as directed above, if any of the parties do not assist, the court may go for imposing costs, or for next step or for coercive steps as per law depending on the circumstances of the case.‖
26. In terms of the above order, it is left to the discretion of the IX Additional District Judge, Chodavaram to either club both the suits or to try simultaneously and pass the judgment as per law. So, the non-impleadment of the petitioner, inO.S.No.162 of 2019 16 is not going to cause any injury or miscarriage of justice to the petitioner.
27. Thus, on both the grounds assigned in the order, the order is perfectly justified and sustainable.
28. I do not find any merit in the C.R.P. The order under challenge does not suffer from any illegality so as to call for the interference of this Court in the exercise of supervisory jurisdiction under Article 227 of the Constitution of India.
29. The civil revision petition is dismissed. No order as to costs.
As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.
____________________ RAVI NATH TILHARI, J Dated: 20.12.2024 Note:
L.R copy to be marked B/o.Gk 17 THE HON'BLE SRI JUSTICE RAVI NATH TILHARI C.R.P.No.3028 OF 2024 Date: 20.12.2024.
Gk.