Andhra Pradesh High Court - Amravati
Baba Fakruddin vs P.Papu Sab on 4 November, 2022
Author: Prashant Kumar Mishra
Bench: Prashant Kumar Mishra
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
CIVIL REVISION PETITION No.3381 of 2019
(Through physical mode)
Baba Fakruddin, S/o S.G.Mahammad Ali,
Aged about 53 years, Occ: Teacher,
R/o D.No.26-4-1027, Thyagaraja Nager,
Hindupur, Anantapuramu District.
..Petitioner
Versus
P.Papu Sab, S/o Late P.Bhakatar Sab,
Aged 60 years, R/o Vittapalli,
Parigi Mandal,
Anantapuramu District and others
...Respondents
Counsel for the petitioner : Mr.P.Narahari Babu
Counsel for the respondents : Mr.K.Vijaya Babu
Mr.V.Eswaraiah Chowdary
ORAL ORDER
Dt:04.11.2022 This civil revision petition would call in question the order dated 27.08.2019 passed in I.A.No.288 of 2019 in O.S.No.110 of 2011 by the Senior Civil Judge, Hindupur, wherein while allowing the application filed by the petitioner under Order 1 Rule 10 of Code of Civil Procedure (for short "C.P.C."), the trial Court has permitted the petitioner therein 2 to join as defendant in the main suit, whereas the petitioner claimed to be joined as plaintiff.
2. The suit was filed by the plaintiffs on 18.07.2011 seeking declaration of title over the suit schedule property and for consequential relief of permanent injunction and also to restrain the defendant No.1 in the suit, his men and the persons claiming through defendant No.1 from interfering with the possession and enjoyment of the plaintiffs over the suit schedule property. During pendency of the suit, the plaintiffs executed a registered sale deed in favour of the present petitioner on 22.12.2012.
3. The present petitioner moved an application under Order 1 Rule 10 of C.P.C. before the trial Court in March, 2019 on the ground that about 3 days back, he came to know about the pendency of the suit and that the plaintiffs are not prosecuting the suit properly and diligently and are colluding with defendant No.1. Therefore, he having purchased the property by registered sale deed dated 22.12.2012 and stepping into the shoes of the plaintiffs, he is entitled to be joined as plaintiff in the main suit.
4. The original defendant No.1 in the suit has not contested the application by filing counter affidavit before the trial Court. Here also, defendant No.1 is not represented; despite it has engaged a counsel, who has filed vakalat.
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5. The trial Court felt that the application filed by the petitioner cannot be dismissed only on the ground that the same has been filed after much delay, but at the same time, it refused to join the petitioner as co-plaintiff and allowed the petitioner to be joined as defendant.
6. Referring to the judgments of the Hon'ble Supreme Court in "Aliji Momonji & Co. Vs. Lalji Mavji and others reported in (1996) 5 SCC 379", "Amit Kumar Shaw and another Vs. Farida Khatoon and another reported in (2005) 11 SCC 403" and the judgment of the High Court of Judicature, Andhra Pradesh at Hyderabad in "V.Narayana Reddy Vs. Rani Narayanan and another reported in 2009 (4) ALD 13", it is argued that when the petitioner has purchased the property from the original plaintiff and the said original plaintiff is not interested in prosecuting the litigation properly and diligently, the trial Court should have allowed the petitioner to be joined as co-plaintiff.
7. Learned counsel for the original plaintiffs would submit that since no counter affidavit was filed by them before the trial Court to the application filed by the petitioner under Order 1 Rule 10 of C.P.C., the original plaintiffs have no objection in joining the petitioner herein either as defendant or as plaintiff in the main suit.
8. It is trite that the power under Order 1 Rule 10 of C.P.C. can be exercised for joining the party as plaintiff or defendant when the Court 4 is of the opinion that without his presence, the question in the suit cannot be completely decided. The trial Court has opined on this issue in favour of the petitioner herein by allowing him to join as defendant. However, the issue which now remains to be considered is - Whether the presence of the petitioner in the suit as defendant would serve his interest or he should be allowed to be joined as co-plaintiff.
9. A plaintiff to a suit is the dominus litis and is in control of the litigation and has a right to begin at the time when the suit proceeds to the stage of recording of evidence. If the petitioner herein, who has purchased the property from the original plaintiffs during pendency of the suit, is not allowed to join as plaintiff, he may suffer irreparable loss for the reason that despite having stepped into the shoes of the plaintiffs by purchasing the property, he will not be allowed to enter into the witness box first in point of time. He will neither be allowed to amend the plaint, if he is joined as defendant. As there is no dispute that the petitioner has purchased the property, there is no difficulty in allowing him to join as party in the suit, more so, when he is raising a plea that the original plaintiffs i.e. his vendors have colluded with defendant No.1. In such a case, in my considered view, it will be in the ends of justice to allow the petitioner herein to be joined as plaintiff No.9 in the main suit.
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10. Accordingly, this civil revision petition is allowed and the impugned order is modified to the extent that the application of the petitioner filed under Order 1 Rule 10 of C.P.C. is allowed and he is permitted to be joined as plaintiff No.9 in the suit along with the original plaintiffs. No costs. All pending miscellaneous applications shall stand closed.
PRASHANT KUMAR MISHRA, CJ Ksp