Andhra HC (Pre-Telangana)
Ali Nawaz Khan And Anr. vs Smt. Frzana Khatoon And Ors. on 9 August, 2002
Equivalent citations: 2002(5)ALD477, 2003(1)ALT780, 2003 A I H C 463, (2002) 5 ANDHLD 477, (2003) 1 ALLINDCAS 232 (AP), (2003) 1 ANDH LT 780
ORDER
1. This is an application filed under Order I Rule 10 C.P.C., to implead respondents 10 and 11 as respondents 10 and 11 in the appeal and as defendants 9 and 10 in O.S.No.2020 of 1987 on the file of II Senior Civil Judge, City Civil Court, Hyderabad. Notice of this petition was not taken to respondents 1 to 9 by the petitioners. They have endorsed in the petition that the respondents 1 to 9 are not necessary parties to this petition.
2. Necessary facts for the disposal of this application are as follows:
Smt. Farhathunnisa Begum was the owner of plaint schedule property. She died on 9.11.1987. The two petitioners are the sons and respondents 1, 2 and 9 are the daughters of the said Farhathunnisa Begum. Petitioners 1 and 2 and 9th respondent together filed the suit in O.S.No.2020 of 1987 seeking partition and separate possession of their shares in the plaint schedule properties. The two sons claimed 2/7th share each. According to the plaint averments the 9th respondent, who was the second plaintiff in the suit and the other daughters, namely, respondents 1 and 2 herein are each entitled to 1/7th share in the plaint schedule properties. Respondents 3 to 8 are the defendants 3 to 8 in the suit. They are the tenants in the occupation of plaint schedule properties. Second respondent - second defendant did not file any written statement in the suit. First respondent - first defendant took categorical plea in her written statement that the plaint schedule property is not Matruka property of Smt. Farhathunnisa Begum. She took the plea that the plaint schedule property was not available for partition among the children of Farhathunnisa Begum. She pleaded that before her death, her mother Farhathunnisa Begum orally gifted a portion of the plaint schedule property to her and later executed a document confirming the oral gift in her favour. She also took the plea that some other property covered by the plaint schedule was gifted by her mother in favour of her husband (10th respondent herein) orally and it was later confirmed by her mother by written gift deed. She also took the plea that the remaining property comprised by the plaint schedule was gifted by her mother to her son, namely, 11th respondent herein. During the pendency of the suit, she amended her written statement and furnished the details regarding the dates of gift in favour of 10th and 11th respondents. She pleaded that the suit is bad for non-joinder of 10th and 11th respondents herein as necessary parties to the suit. In spite of the specific plea regarding the gifts in favour of the 10th and 11th respondents as well as the plea that the suit is liable to be dismissed for non-joinder of respondents 10 and 11 as defendants in the suit, the present petitioners as well as 9th respondent herein proceeded further with the suit. They did not take any steps during the pendency of the suit to implead the respondents 10 and 11 as defendants 9 and 10 in the suit. Lot of oral and documentary evidence was adduced by both the parties during the course of the trial in the trial court. On a consideration of the evidence adduced by both the parties, the trial court held that suit property is not Matruka property of the deceased Farhathunnisa Begum and it is not liable to be partitioned between the plaintiffs and defendants 1 and 2 in the suit. In para 62 of the judgment the trial court held that when the first defendant has pleaded that her mother gifted the property to her, her husband and son, the plaintiffs should have made D.W.3 (10th respondent herein) and the son of the first defendant as parties to the suit. It further held that the suit is bad for non-joinder of proper and necessary parties. It further held that on that ground also, the suit is liable to be dismissed. At this juncture, it is necessary to mention that 10th respondent was examined as D.W.3 by the first defendant in the suit as one of her witnesses. The gift deeds in favour of first defendant as well as 10th and 11th respondents herein were exhibited as documents on behalf of the first defendant. Some of the tenants, who are the parties to the suit as defendants, also took the plea in their written statements that they are the tenants of the husband of the first defendant.
3. After the disposal of the suit, plaintiffs 1 and 3 alone filed the appeal against the judgment and decree of the trial court. The second plaintiff in the suit is shown as respondent No.9 in the appeal. In the appeal, they impleaded the husband and son of first defendant as respondents 10 and 11. The appeal is not yet admitted as the present petition to implead 10th and 11th respondents as respondents 10 and 11 in the appeal is pending.
4. I have stated supra that the petitioners did not take any notice in the present application to the respondents 1 to 9. I made such an observation keeping in my mind that the 9th respondent was a second plaintiff in the suit and she did not join the plaintiffs 1 and 3 in filing the present appeal. The petitioners now want to implead respondents 10 and 11 not only in the appeal but also in the suit as defendants behind the back of one of the plaintiffs in the suit, namely, the 2nd plaintiff - 9th respondent herein. A third party cannot be impleaded as one of the defendants in the suit without hearing all the plaintiffs in the suit. It is immaterial for the petitioners what stand she would take on this dispute.
5. This application is strongly opposed by the proposed respondents 10 and 11. It is their contention that as on the date of the present application, the claim of the plaintiffs against them became time barred. They contend that the gifts in their favour took place more than 12 years prior to filing of the present application and after a lapse of more than 12 years from the date of the gifts in their favour, the plaintiffs are not entitled to implead them either as defendants in the suit or as respondents in the appeal and it would prejudicially affect the legal rights accrued to them already. It is the contention of the petitioners that without the proposed respondents 10 and 11 being parties to the appeal, an effective and final adjudication of the dispute involved in the suit is not possible and therefore it is necessary to implead them as respondents 10 and 11 in the present appeal and as defendants 9 and 10 in the suit.
6. The learned counsel for the petitioners relied upon only one decision in support of his case. He cited Digestive Notes of other High Courts reported in 1999 (1) ALT 54. The equivalent citation of the above decision is fully reported in CHINTAMAN SAHADEVRAO BAGDE Vs. BALIRAM RANGNATH BANSODE & ANOTHER, 1999 (1) CCC 169 (Bom.). In that case in a suit for perpetual injunction, the defendant took the plea that another person was the real owner of the suit property. The other person filed an application to implead him as one of the defendants in the suit. The trial court dismissed the said application on the ground that the plaintiff was 'dominus litis'. In the revision the Bombay High Court held that the duty of the court is higher than the wishes of the plaintiff to examine whether presence of party was necessary for determination of real matter in dispute. In my considered opinion this decision is of no assistance to the petitioners.
7. I have come across two relevant decisions applicable to the facts of the present petition. It is already noticed that in the trial court the plaintiffs did not take any steps to implead the present respondents 10 and 11 as defendants 9 and 10 in the suit in spite of their knowledge that the proposed respondents 10 and 11 are claiming rights over a portion of the plaint schedule property by virtue of the gifts in their favour by the real owner Farhathunnisa Begum. The present application is filed before this court after the appeal was filed before this court.
8. A Division Bench of this court in a decision in S.A. KHAN Vs. SPECIAL DEPUTY COLLECTOR, AIR 1973 A.P. 298 held that the power under Order I Rule 10(2) C.P.C., to implead third parties can be exercised only when the proceedings are alive and still pending. It was further held that once the adjudication itself of all the disputes in the case was over, this provision cannot be made use of by any party. In the present case, the suit was already decided by the trial court on merits. After the disposal of the suit by the trial court, the present application is filed requesting this court to add the respondents 10 and 11 as defendants 9 and 10 in the suit. As the suit was already adjudicated upon and as the suit is no longer pending before the trial court, in view of the binding decision of a Division Bench of this court, I am of the definite opinion that the present petition as far as it relates to impleading of 10th and 11th respondents as defendants 9 and 10 in the suit cannot be accepted by this court.
9. The other relief claimed by the petitioners is to implead the respondents 10 and 11 as respondents 10 and 11 in the appeal instituted by the appellants. At the time of filing of the appeal itself, even without obtaining any order from this court, the appellants had shown the present proposed parties as respondents 10 and 11 in the appeal. After having suo motu impleading them as respondents 10 and 11 in the appeal, the petitioners cannot maintain the present application. They have to take a risk regarding the maintainability of the appeal against the persons shown as respondents 10 and 11 in the appeal without those persons being parties to the judgment and decree of the trial court. The proper and necessary procedure that should have been followed by the petitioners is that they should have filed the appeal against the defendants in the suit alone and then should have filed their application under Order I Rule 10 C.P.C., requesting the Appellate Court for permission to implead third parties as respondents in the appeal and then if the Appellate Court grants such permission, then only they can implead the third parties as respondents in the appeal. For the reasons best known to the petitioners herein, they did not follow such procedure. As already pointed out, the attempt of the present petitioners is now to implead the third parties as additional defendants in the suit behind the back of one of the plaintiffs and even without taking notice of the application under Order I Rule 10 C.P.C., to the notice of one of the plaintiffs. In this view also, the present application is not maintainable.
10. It is already noticed supra that the first defendant in her written statement took the definite plea that the present respondents 10 and 11 are necessary parties to the suit and in their absence the suit is liable to be dismissed for non-joinder of necessary and proper parties. Oral and documentary evidence was also adduced in the suit by the 1st defendant regarding gifts in favour of her husband and son (10th and 11th respondents). However, plaintiffs did not take any steps to implead them as additional defendants in their suit. There is a Full Bench decision of Travancore & Cochin High Court in C. PILLAI Vs. D.M. DEVASAHAYAM , 1956 TRA.CO. 181. The Full Bench held as follows:
" It is a well recognised rule of law that if in spite of objection raised at the proper time the plaintiff persists in the suit without joining the necessary parties, the suit has to be dismissed and that he cannot be allowed to remedy the defect in the appeal"
11. The facts of the above decision are squarely applicable to the facts of the present appeal. I follow the principle of law laid down by the above High Court in the above decision. Therefore, as the present petitioners as well as 9th respondent did not take any steps in the suit during the pendency of the suit to implead respondents 10 and 11 as additional defendants in the suit, they cannot be permitted to remedy that defect during the pendency of the appeal filed by them against the judgment and decree of the trial court. Viewed from any angle, the application filed by the petitioners for the twin reliefs, namely, impleading the respondents 10 and 11 as defendants 9 and 10 in the suit and to implead them as respondents 10 and 11 in the appeal is liable to be dismissed.
12. In the result, C.M.P., is dismissed.