Telangana High Court
Smt.S.Krishnamma vs S.Rajender Reddy, on 12 September, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
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THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
CIVIL REVISION PETITION No.3914 of 2023
And
CIVIL REVISION PETITION No.27 of 2024
COMMON ORDER:
These revisions emanate from the order dated 05.12.2023 passed by the Senior Civil Judge, Kalwakurthy, in I.A.No.318 of 2023, and order of even date in I.A.No.319 of 2023, in O.S.No.148 of 2022.
I.A.No.318 of 2023 was filed praying the Court to implead proposed respondents 3 to 6 as defendants 3 to 6 in the suit. Likewise, I.A.No.319 of 2023 was filed praying to permit the plaintiff to amend the prayer in the plaint. By the impugned orders, the Trial Court allowed the applications. Aggrieved thereby, the defendants 1 and 2 are before this Court with these revisions, raising several grounds. For the sake of convenience, the parties will be referred to as they were arrayed before the Trial Court.
2. Heard Mr. Ch. Ramesh Babu, learned counsel for the petitioner/plaintiff; and Mr. A.P. Suresh Ram, learned counsel for the respondents 1 and 2/defendants 1 and 2.
3. The plaintiff filed the suit OS No.148 of 2022 for declaration of title and recovery of possession of suit schedule property. It is the case of the plaintiff that defendant No.2 and one S. Bachi Reddy (proposed defendant No.3) played criminal mischief on the deceased (S. 2 Anthamma) by forging a SadaBainama (un-registered Gift Deed) alleged to have been executed by the deceased Anthamma on 26.12.1983 and got the said unregistered Gift Deed validated in the year 1994 through proceedings dated 02.07.1994 issued by the Tahsildar (proposed defendant No.4), and therefore the Tahsildar, the Revenue Divisional Officer (proposed defendant No.5), and the District Collector (proposed defendant No.6) are proper and necessary parties to the suit and prayed the Court to add them as defendant Nos.3 to 6, respectively. The plaintiff also challenged the legality of the unregistered Gift Deed.
4. The trial Court, by separate orders dated 05.12.2023, allowed both the applications. Challenging the same, the defendants 1 and 2 filed the present revision petitions.
5. The crux of the contention of defendants is that the plaintiff had knowledge of contested Sada Bainama (unregistered Gift Deed) in the year 2014 itself, as the pleadings in the affidavit filed in support of I.A.No.318 of 2023 would disclose the statement of plaintiff wherein he stated that he had brought to the notice of his previous counsel about the alleged forged Sada Bainama / unregistered Gift Deed but his counsel failed to challenge the forged Sada Bainama. The defendants therefore contend that the plaintiff having knowledge of the Sada Bainama, laying challenge to the same after 30 years, is hit by Article 58 of Limitation Act.
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6. The defendants also contend that the trial Court ought to have considered the written arguments of defendants, in view of the judgment in G. Jaya Rao v. State of A.P. Land Reforms, Srikakulam 1, however the trial Court failed to consider the same, and therefore the impugned orders dated 05.12.2023 passed in both Interlocutory Applications are bad in law, and the same are liable to be set aside.
7. Learned counsel for the defendants relied on the judgment of the Hon' ble Supreme Court in Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre & Hotels Pvt. Ltd 2; Karuppaswamy v. C. Ramamurthy 3.
8. In Regency Convention (2 supra), wherein there was a contest to adding a party on the ground that the proposed party therein was neither proper nor necessary to the suit, the Hon'ble Supreme Court held that if a person is not found to be a proper or necessary party, the Court has no jurisdiction to implead him against the wishes of the plaintiff, and the fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.
1 2003 (3) ALT 127 2 AIR 2010 SC 3109 3 AIR 1993 SC 2324 4
9. In Karuppaswamy (3 supra), the subject matter was with regard to the limitation and the date from which it deserves computation. It was observed by the Hon'ble Supreme Court at paragraph 9 as follows:
"9. Thus in our opinion the course set out in Mushis case (AIR 1983 SC
271) is attracted to the instant case since the High Court has found that the plaintiff-respondent had acted in good faith and had committed mistake in that frame of mind. Munshi's case, in our view, should clear the way in favour of the plaintiff-respondent, ending in dismissal of this appeal."
10. ........ In contrast, in Rasetty Rajya lakshmamma v. Ramajuru Kanniah, AIR 1978 Andh Pra 279, the mistake was found to have occurred in good faith and the implement of this legal representatives was allowed even after the expiry of the limitation for filing suit. The institution of the suit was rightly held therein to be not void ab initio".
10. Learned counsel for the plaintiff/respondent relied on the judgment of the Hon' ble Supreme Court in Life Insurance Corporation of India v. Sanjeev Builders Private Limited 4, and also the judgment of this Court in Mothkupally Narsimhulu v. Adimalla Susheela 5.
11. The Hon'ble Supreme Court in Sanjeev Builders (4 supra) held as follows:
"(i) Order II Rule 2 Code of Civil Procedure operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 Code of Civil Procedure is thus, misconceived and hence negative.4
AIR 2022 SC 4256 5 CRP No.502 of 2023 5
(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the Code of Civil Procedure.
(iii) The prayer for amendment is to be allowed.
(i) *** (ii) To avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side
(b) by the amendment, the parties seeking amendment does not seek to withdrawy any clear admission made by the party which confers a right on the other side and
(c) ***
(iv) A prayer for amendment is generally required to be allowed unless
(i) ***
(ii) The amendment changes the nature of the suit
(vi) where the amendment would enable the court to pin- pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
(vii) where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
(x) where the amendment changes the nature of the suit or cause of action, so as to set up an entirely new case, forein to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
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(xi) ...... Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed.
12. It may be noted that the plaintiff filed I.A.No.318 of 2023 under Order 1 Rule 10(2) of Code of Civil Procedure (CPC) for adding parties to the suit; and also filed I.A.No.319 of 2023 under Order 6 Rule 17 of CPC for amendment of prayer in the suit. It is therefore relevant to refer to the said provisions which read as follows:
Order 1 Rule 10(2):
(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 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.
Order 6 Rule 17:
(17) Amendment of Pleadings:-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
13. It is to be noted that in the instant case the pleading of the plaintiff is that the unregistered Gift Deed dated 26.12.1983 is forged and fake document brought into existence with ulterior motive, and that 7 the said document was got validated in the year 1994 through some alleged proceedings issued by the proposed defendant No.6 on 02.07.1994 and therefore sought to implead the proposed defendants 3 to 6 as defendants to the suit for effective determination of the suit, and accordingly sought for amendment of the prayer as well. The only ground sought to be urged by the defendants 1 and 2 is that the plaintiff is in the know of the document prior to the suit. However, it is to be noted that at the same time it is the plea of the plaintiff that he had informed his previous counsel about the unregistered Gift Deed. At this juncture, it may be noted that the observations of the District Court while dismissing the CMA No.13 of 2014 filed by the plaintiff, at paragraph 9 regarding Ex.P1-Will Deed 17.06.2007 and Gift Deed dated 26.12.1983, stating that the Will dated 17.06.2007 which is marked as Ex.P1 is the question of fact to be considered only during the course of trial; and expressed doubt on validation by revenue authorities since such power under the Rights in Land and Pattadar Pass Books Act, 1971 is applicable only to transactions like agreement of sale and unregistered sale deed etc, but not to a gift deed governed under Transfer of Property Act, and that these aspects will be decided during the course of trial.
14. It may be noted that the proposed defendants are proper parties to testify with regard to the validation of unregistered Gift Deed and consequent mutation proceedings andwhether such proceedings were with notice or without notice to late S Anthamma and whether Section 8 5A and the Rules of Telangana Rights in Land and Pattadar Passbooks Act, 1971, are contravened. These are factual aspects that can be decided during the course of trial. It is to be noted that merely because the I.As are filed at the stage of final arguments does not necessarily entail dismissal of the applications, for, if that is so, the purport of Order 1 Rule 10(2) itself becomes defunct. It is to be noted that the Court, with regard to facts of a given case, has to exercise judicious discretion, and the Court cannot either allow or dismiss as a matter of course, to add parties at any stage of proceedings for effectual adjudication of the suit. The phrase "at any stage of proceedings" is significant and beset with judicious discretion while impleading or dropping a party for effectual adjudication.
15. Coming to the application in I.A.No.319 of 2023, which is for amendment of prayer, challenging the unregistered Gift Deed dated 26.12.1983 as null and void and not binding on the plaintiff on the ground of alleged forgery and contravention of Section 5A read with Rule 22 of the Act, being without notice.
16. Considering the judgments relied on by both the learned counsel, this Court is of the view that the judgment of the Hon'ble Supreme Court in Sanjeev Builders (5 supra) is relevant to the facts of the present case, for, the amendment of prayer would in no way alters the nature of the suit itself, as the plaintiff is still seeking declaration of title and possession, and the plaintiff's knowledge of unregistered Gift Deed dated 26.12.1983 and agitating the same is not a time-barred cause of 9 action but continuous and therefore by seeking amendment of prayer, the plaintiff is not introducing a time-barred cause, as the cause of action is still the same which is with regard to the title being claimed based on the alleged unregistered Gift Deed dated 26.12.1983 and its subsequent validation by the revenue authorities in the year 1994.
17. In that view of the matter, this Court does not find any illegality in allowing I.A.No.319 of 2023 thereby permitting to amend the prayer.
18. With regard to the addition of proposed defendants 3 to 6, it is relevant to note that the Hon'ble Supreme Court in Anil Kumar Singh v. Shivnath Mishra 6 observed with regard to Order 1 Rule 10(2) as follows:
"By operation of the above-quoted rule 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 the party to be added, would be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit. To bring a person as party- defendant is not a substantive right but one of procedure and the court has discretion in its proper exercise. The object of the rule is 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 protraction, inconvenience and to avoid multiplicity of proceedings."
Though the plaintiff is dominuslitus, it is the duty of the Court to ensure that, if, for deciding the real matter in dispute, a person is necessary party, the court can order such persons to be impleaded. Merely because the plaintiff does not choose to implead a person, is not sufficient for rejection of an application for being impleaded. 6 (1995) 3 SCC 147 10
19. Furthermore, it is not the case of revision petitioners/defendants 1 and 2 that the proposed defendants are not proper or necessary parties to the suit, or that the scope of the suit is enlarged or that the questions not involved in the suit are being decided. It is to be noted that the ground urged by the plaintiff is that the alleged forged document dated 26.12.1983 and the consequential proceedings in the year 1984 under the Act are without notice as mandated under Section 5A read with Rule 22 of the Act, and therefore the proposed defendants are proper and necessary parties. It is also to be noted that while allowing the impugned I.As., the trial Court has observed that admittedly the impleadment application was filed at the fag end of main suit proceedings however the same cannot be thrown out and the trial Court inclined to give opportunity to the plaintiff to avoid multiplicity of litigation; and further with regard to amendment of prayer, the defendants can file additional written statement against the new amended contentions in the plaint. Furthermore, the proposed defendants are not added in the capacity of plaintiffs or share-holders of the suit property, and they are the authorities who validated the disputed unregistered Gift Deed dated 26.12.1983 allegedly without notice and in contravention of the Rights in Land and Pattadar Pass Books Act, and therefore their addition is innocuous in nature and could only aid in effectual adjudication of the suit, if not anything more; and as the trial Court rightly observed, the defendants can rebut the amendment by filing additional written statement if they so choose. In 11 that view of the matter, given the facts of the case, this Court does not find any judicial impropriety in the discretion exercised by the trial Court in allowing the impugned applications.
20. Having considered the rival contentions, and perusing the material on record, and the judgments relied on by both the learned counsel in both the revision petitions, this Court does not find reasonable ground to interfere with the orders of the trial Court and therefore the revision petitions are liable to be dismissed.
21. Accordingly, the revision petitions are dismissed. No costs. Miscellaneous petitions, pending if any, shall stand closed.
_____________________________ Justice Nagesh Bheemapaka 12th September, 2024 ksm