Andhra Pradesh High Court - Amravati
Uppala Madhavi Plantiff vs Sudunagunta Kishore Kumar on 16 March, 2020
Author: M.Venkata Ramana
Bench: M.Venkata Ramana
HON'BLE SRI JUSTICE M.VENKATA RAMANA
CIVIL REVISION PETITION Nos. 2916 and 2933 of 2019
COMMON ORDER :
The plaintiff is the petitioner in both these Civil Revision Petitions. The 2nd respondent is the defendant. Whereas the 1st respondent is the third party to the suit pending in between the petitioner and the 2nd respondent.
2. The relationship between the petitioner and the 2nd respondent being sister and brother as well as the children of Sri Suri Babu is not in dispute. The 1st respondent is also closely related to both, being a cousin and son of their paternal aunt.
3. The dispute concerned to the suit is in respect of a part of the property of Sri Sudanagunta Ramaiah. The 1st respondent is claiming an independent right being the grandson of the aforesaid Sri Sudanagunta Ramaiah, being son of his daughter and whereas, the parties to the suit are the children of Sri Suri Babu, son of Sri Sudanagunta Ramaiah. The relief sought by the petitioner in the suit is for grant of permanent injunction restraining the 2nd respondent from interfering with her peaceful possession and enjoyment of Ac.1-00 of land out of Ac.4-15 cents of Munipalli Village, Guntur District located within the specified boundaries set out in the plaint schedule. The 2nd respondent is contesting the suit filing written statement raising a specific defence.
4. An application for grant of temporary injunction is also filed by the petitioner against the 2nd respondent in the same suit in I.A.No. 318 of 2019 under Order-39, Rules 1 and 2 CPC.
MVR,J CRP Nos. 2916 & 2933 of 2016 2
5. In the suit as well as in the above application, the 1st respondent sought himself to implead as a party-defendant/respondent claiming that he is a proper and necessary party to the suit and setting out a specific version claiming right and interest to certain extent out of the same S.No. covered by the plaint schedule land by virtue of a registered relinquishment deed dated 19.08.1993 (Ex.P1). He further claimed that by virtue of Ex.P2-gift deed dated 20.05.1968, the original owner Sri Ramaiah conferred life interest on his wife Smt. Savithramma with vested remainder in favour of his two sons Sri Subba Rao and Sri Appa Rao, which was acted upon. Thus, tracing out title and interest to the property from his paternal grandfather, he sought to question the suit documents basing on which the parties to the suit have claimed right and interest to the plaint schedule land by different ways and means.
6. On such premise, the 1st respondent sought to implead himself to the suit as well as petition filed for temporary injunction.
7. The petitioner and the 2nd respondent resisted this attempt of the 1st respondent filing detailed counters in the trail Court.
8. Basing on the pleadings as well as the contentions including the documents exhibited in the course of the enquiry in Ex.P1 to Ex.P7, the learned trial Judge thought fit to implead the petitioner holding that an opportunity should be given to him and that he being a proper party to the suit whose presence is necessary to adjudicate the dispute completely and effectively.
9. Contentions are advanced now in these revision petitions on behalf of the petitioner that in terms of Ex.P6, which is a copy of adangal for fasli 1427, it is clear and categorical that the petitioner is recorded to MVR,J CRP Nos. 2916 & 2933 of 2016 3 hold possession of Ac.1-00 of land and whereas, the 1st respondent is shown to be in possession of another Ac.1-00 in S.No.444-2B. In such an event, according to the learned counsel for the petitioner, it is not necessary that the 1st respondent be brought on record as a necessary party to the suit.
10. However, on behalf of the 1st respondent, referring to right and interest claimed by him and tracing out the same to the original propositus Sri Ramaiah, it is contended that his presence is absolutely necessary for just and proper adjudication of all the issues in the suit and when object of Order-1, Rule-10 CPC is to prevent proliferation of litigation, learned trial Judge was right in allowing the application as such.
11. Now, the point for determination is-"Whether the 1st respondent is a proper and necessary party to the suit whose presence affords to effectively adjudicate the dispute among the parties in proper perspective?
POINT:-
12. The suit instituted by the petitioner against the 2nd respondent is one for perpetual injunction. It is based on a specific cause of action set out by the petitioner against the 2nd respondent. It is also well known that in a suit for injunction, it is for the plaintiff to establish his claim of rightful possession and enjoyment of the property in dispute and he cannot rely on any weakness in the case set up by the defendant. Predominantly in a suit of such nature, unless required, question of title cannot be directly gone into and possibly there can be incidental reference to the right set up by the plaintiff in order to make out his rightful possession and enjoyment of the property. Therefore, even if a decree is passed in a suit MVR,J CRP Nos. 2916 & 2933 of 2016 4 for permanent injunction, it is rather difficult to hold that the title with reference to the property in dispute stands directly and substantially in issue. It is against this back ground as to nature and effect of a suit for permanent injunction including the decree therein, the present matter has to be considered.
13. At this stage, Sri Raja Reddy Koneti, learned counsel for the 1st respondent, brings to the notice of this Court the observations in Anathula Sudhakar Vs. Respondent: P. Buchi Reddy (Dead) by LRs. and Ors1 with reference to consideration of question of title in a suit for permanent injunction contending that even if a party has collateral interest based on title in the property in dispute, such questions are open for adjudication in a suit of this nature.
14. The status of the petitioner in the suit as the plaintiff should also be borne in mind in this context as domius litis. Therefore, it is his choice against whom he intends to proceed against, particularly with reference to the cause of action based on bundle of facts, which he proposed to aver and establish at the trial against his adversary.
15. Undisputedly, it is not the claim of the petitioner against the 1st respondent that he has a specific cause of action against him nor he has sought any direct or collateral relief or ancillary relief against anyone except the 2nd respondent.
16. It is further to be noted that the 2nd respondent is supporting the case of the petitioner against the 1st respondent, though they have 1 .AIR 2008 SC 2033 MVR,J CRP Nos. 2916 & 2933 of 2016 5 been at loggerheads in relation to the plaint schedule property, setting forth specific claims.
17. In such an event, it is rather ununderstandable how the learned trial Judge could deem it fit to permit the 1st respondent to be brought on record. Not only permitting the 1st respondent to remain as a defendant to the suit, as seen from the order impugned, the plaint is directed to be amended as per the choice of the 1st respondent.
18. Bringing out averments in the plaint shall be the complete prerogative of the plaintiff and such averments cannot be introduced or brought on record at the instance of an adversary, who infact, requests to proceed against the plaintiff. This is the major defect to encounter in this matter for the 1st respondent and Sri Raja Reddy Koneti, learned counsel for the 1st respondent, is fair in his stand in this respect. However, the strenuous contention of the learned counsel for the 1st respondent is that in the guise of a decree in a suit of this type, particularly between the sister and the brother, there is possibility of misuse, approaching the police or any other Government authorities against third parties like the 1st respondent herein and the whole object of the 1st respondent to come on record is only to prevent such mischief.
19. May be there is justification in the apprehension expressed on behalf of the 1st respondent in this respect and the present trend in seeking such reliefs for injunction is making out that there is possible misuse and abuse of the benefits flowing from a decree of this nature.
20. However, such apprehension should be clearly reflected and even in a summary enquiry of this nature, there shall be such facts demonstrative of this picture. As seen from the affidavit of the 1st MVR,J CRP Nos. 2916 & 2933 of 2016 6 respondent, there are no allegations or averments to that effect except certain questions and issues raised relating to the documents relied on by the parties to the suit and to the effect that the documents were so brought out in collusion among the mother, daughter and son within the family in order to cause wrongful loss to him.
21. In these circumstances, the option left to the 1st respondent is to file a suit questioning the claim so set forth by the petitioner and the 2nd respondent not only with reference to the plaint schedule property but also in respect of any claim of any nature, making out a comprehensive cause.
22. On behalf of the 1st respondent, reliance is placed in Global Trust Bank Ltd., Sec'bad Vs. Kakateya Cement Sugar and Industries Ltd., Hyd.2 In the given facts and circumstances of the case, one of the learned Judges of this Hon'ble High Court of A.P. at Hyderabad observed that addition of party, who is not a party arrayed by the plaintiff, basing on his right and interest, in a suit for injunction is permissible. Relevant observations in this ruling are in Para-33 and they are extracted hereunder:
33. The finding of the Court below that though adjudication of dispute in the suit may result in effecting the rights of the third party, his remedy is to file a separate Suit, because plaintiff as dominus litis cannot be compelled to implead a person against his will, is not in consonance with the well settled principle of law that a person who has a right or interest in the subject matter, and would be effected by the result of the suit, is a proper, if not necessary party, to the suit. The Court below does not seem to have properly understood the ratio in Motiram R. Coad Co. v. District Committee, AIR1962Pat357 , and was in error in following Banarsi Das v. Panna Lal, of the Punjab and Haryana High Court, when direct decisions of this Court are available on the point in issue. In Shaik Muneerunddin v. Karnataka Power Corporation Limited, 1994(3)ALT127 and in A. Seetharamayya v. Bh. Gopalakrishna 2 .2000(6) ALT 130 MVR,J CRP Nos. 2916 & 2933 of 2016 7 Murthy, 1994(1)ALT402 , it is held that if a person has interest in the subject matter of the suit, he can come on record as a party. In fact in Srinivasa Murthy v. Venkata Subba Rao 1956 ALT 917, it was held that in appropriate cases Court can implead a new party as a defendant even against the plaintiffs desire, since the expression ''questions involved in the suit" in Rule 10(2) of Order 1 CPC does not relate merely to the question as between the parties originally impleaded, but relates to the real dispute raised in the suit and so it should be decided in the presence of all the parties interested in the dispute. In view of the finding of the Court below that if the relief sought by the plaintiff in the suit is granted, it would indirectly affect the third party, as held in the above decisions of our High Court third party, as a person interested in the dispute involved in the suit, can be brought on record as a defendant, even against the wish or resistance of the plaintiff, and can also seek vacation of the ex parte injunction granted against the defendant, because the injunction in fact affects him (third party) but not the defendant.
23. However, the facts in the suit as well as the stand which the 1st respondent can have against the parties to the suit are different. The claims of the 1st respondent can be adjudicated by means of a separate suit than in a suit for permanent injunction between the petitioner and the 2nd respondent, where the relief sought is of limited scope and ambit.
24. Therefore, finding no justification for the learned trial Judge to permit the 1st respondent to be brought on record under Order-1, Rule-10 CPC, the same has to be interfered with. It is further to be noted that in Mumbai International Airport Pvt. Ltd. Vs. Respondent: Regency Convention Centre and Hotels Pvt. Ltd. and Ors.3, the question relating to exercise of discretion under Order-1, Rule-10(2) CPC stood elaborated and thus what is to be considered in terms of Order-1, Rule- 10(2) CPC is the power to exercise discretion by the Courts. It is not with reference to proposed addition of a party as a necessary or proper party to the suit.
3 . (2010) 7 SCC 417 MVR,J CRP Nos. 2916 & 2933 of 2016 8
25. In the given facts and circumstances of present case, when the discretion exercised by the learned trial Judge is improper and perverse, the same has to be interfered with.
26. In the result, the Civil Revision Petitions are allowed setting aside the orders of the learned trial Judge. There shall be no order as to costs.
As sequel thereto, all miscellaneous petitions, if any, shall stand closed. Interim Orders, if any, shall stand vacated.
________________________ JUSTICE M.VENKATA RAMANA Dt:16.03.2020 RR MVR,J CRP Nos. 2916 & 2933 of 2016 9 HON'BLE SRI JUSTICE M.VENKATA RAMANA CIVIL REVISION PETITION Nos. 2916 and 2933 of 2019 Dt:16.03.2020 RR