Andhra HC (Pre-Telangana)
Adapa Venkateswra Rao And Another vs Mohammad Suleman And Others on 29 April, 1993
Equivalent citations: AIR1994AP50, 1993(2)ALT446, AIR 1994 ANDHRA PRADESH 50, (1993) 2 ANDH LT 446, (1993) 2 APLJ 37, (1993) 2 LS 56
ORDER
1. The petitioners are the third parties who are questioning the order refusing to implead them as defendant Nos. 6 & 7 in O.S. No. 162/82 on the file of the Subordinate Judge's Court. Vijayawada.
2. The first respondent is (sic) (has?) filed the suit for specific performance of an agreement against the defendant Nos. 1 to 5. Defendant Nos. 4 & 5 who are the original owners of the suit property, sold the same to the petitioners under two separate sale deeds dated 2-11-1988 and 2-2-1989. As the defendant Nos. 4 & 5 have sold away their property, they lost interest in the suit proceedings and if they do not prosecute the suit diligently, the petitioners who purchased the property, would suffer serious hardship. Therefore; they filed I.A. 2361/89 under Order 1, Rule 10 C.P.C. to implead them as defendant Nos. 6 & 7 on the ground that they are proper and necessary parties to the suit, being the subsequent purchasers. The said application was dismissed by the lower Court holding that they are not proper and necessary parties to the suit and their remedy is to work out their rights by way of a separate suit. Challenging the said order, this revision petition is filed.
3. Sri T.V.S. Prabhakara Rao, the learned Counsel for the petitioners, submits that even for a suit for specific performance of an agreement of sale, the provisions of Order 1, Rule 10 C.P.C. as well as Section 151 C.P.C. would apply. The learned Counsel relied upon a division Bench Decision of this court, reported in K. A. Khader v. Mahabub Saheb, .
It is suit for declaration, where, third party wanted to come on record on the ground that his great grand-father was granted the plaint schedule land by Gadwal Samsthan for the purpose of service of arranging peers in Gadwal. The plaintiffs in that suit claimed to be the owners of the land on the ground that it is service inam of the mosque. Considering the rival contentions, the Court observed as follows at page 155 (of AIR) :--
"The Court has to determine the question of title of the plaintiffs. In order to decide the question relating to the ownership of the land, the 1st respondent, who is sought to be impleaded in the suit as a defendant, and who claims to be the owner of the land in question, must be considered to be a necessary and proper party without whose presence the question cannot be finally and effectually adjudicated upon".
4. In a later decision reported in Ramesh Chandra Sarada v. Phoolchand Soni, 1981 (1) An WR 427, Justice Punnayya, had occasion to consider whether the provisions of Order 1, Rule 10(2) C.P.C. are applicable to a suit for specific performance of an agreement of sale. The learned Judge considered a catena of case law and held as follows:
"It is, therefore, clear that all the parties who have direct interest in the property in respect of which specific performance is sought for should be impleaded for the effective and complete adjudication of all the questions involved in the suit to avoid multiplicity of suits or proceedings".
5. In a subsequent decision reported in Gyaneshwar Rao v. Mahmood Shareef, , Justice Seetharam Reddy, had also occasion to consider the application of the provisions of order I, Rule 10 C.P.C. to a suit for specific performance of an agreement of sale. The learned Judge on an elaborate consideration of several decisions cited at the bar, including the decision reported in Razi Begum v. Anwar Begum deducing the following principles, held thus at Page 162 (of AIR 1982):
"On a conspectus of the above case-law, the principles that could be said to emerge in regard to application of the provisions enacted in sub-rule (2) of Rule 10 of Order 1, Civil Procedure Code, and in particular the expressions "whose presence before the Court may be necessary" and "in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit" are:
(1) "Settle all the questions involved in the suit" should be construed to mean, not restricting the scope between the parties to the suit, but to a wider area concerning the subject-matter of the suit involving even the third parties' claim and interest.
(2) The question of addition of parties under Rule 10(2) of Order 1 is generally not one of initial jurisdiction but of a judicial discretion which has to be exercised in view of the facts and circumstances of each case. The jurisdictional aspect is in the limited sense contemplated under Section 115 of the Code of Civil Procedure.
(3) For effectual and complete adjudication of the questions involved in the suit, the presence of a third-party, even if it is not necessary, but if proper, should be allowed to be added as a party if applied for.
(4) In a suit relating to property, the person to be added as a party should have a direct interest as distinct from a commercial interest in the subject-matter of the litigation.
(5) Where the subject-matter of a litigation is a declaration as regards status or a legal character, the rule of presence or direct interest may be relaxed in a suitable case where the Court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy.
(6) The rule laid down in Section 43 of the Specific Relief Act is not exactly a rule of res judicata. It is narrow in one sense and wider in another".
Therefore, there is no doubt that the provi-
sions of Order 1, Rule 10 C.P.C. are application to suits for specific performance of contract of sale.
6. The only question that remains for consideration is, whether the petitioners are proper and necessary parties to this suit ?
7. The petitioners are claiming to have purchased the plaint schedule property from the defendant Nos. 4 & 5 who are the owners under two separate sale deeds dated 12-11-1988 and 2-2-1989 which are duly registered as Document Nos. 5468 and 1244/89 in the Office of the Sub-Registrar, Vijayawada. Since, they have purchased the property, pending the suit, defendant Nos. 4 & 5 can only transfer the right and interest they have, in the schedule property, subject to the result of the suit. It is also alleged in the petition filed by the petitioners that as the defendant Nos. 4 & 5 have sold away the property, they are not evincing interest in the suit and as such, they may be impleaded as defendant Nos. 6 & 7 in the suit. It cannot therefore, be said that they have no interest in the schedule property. As they are claiming through defendant Nos. 4 & 5, they cannot get better rights than defendant Nos. 4 & 5, but at the same time, they are entitled to safeguard their rights in case defendant Nos. 4 & 5 do not show any interest. In the light of the decisions cited above, the petitioners have to be impleaded as defendant Nos. 6 & 7 in order to finally adjudicate the real dispute between the parties and also to shorten the litigation and to avoid multiplicity of proceedings.
8. A somewhat-similar view is taken by me in a decision reported in R. Krishna Rao (died) per L.Rs. v. P. Ananda Rao, 1993 (1) AnLT562, wherein, I observed-as follows:--
"The normal rule is, the vendor alone is entitled to the balance of sale consideration, of course, subject to the equities, if any in favour of the subsequent purchaser. This is in view of the fact that the subsequent purchaser will pass on the title that vests in him by virtue of the sale deed in his favour, to the plaintiff by virtue of the decree passed by the Court. There may be covenants in the registered sale deed obtained by the subsequent purchaser which would become enforceable in case of breach of warranty of title. So, it is always open to the subsequent purchaser to proceed against the vendor in case of breach of warranty or other covenants by way of a separate suit. If, however, the subsequent vendor desires to recover the amount parted with by him under the registered sale deed from out of the balance of sale consideration, he should set out relevant facts in his written statement, so that the trial Court can frame an appropriate issue and decide the same considering the relevant evidence. In these circumstances, the trial Court would do well if an issue, ''whether the subsequent purchaser is entitled to any equities"? is framed and decided, so that in many cases further litigation relating to the same subject-matter can be avoided. It would also obviate the necessity of remanding the matter by the appellate Courts while considering the question of issuing directions for payment of the balance of sale consideration at the time of disposal of appeals, in the absence of finding by the trial Court in this regard. If the subsequent purchaser is not interested in claiming back his money by fighting out an issue relating to the payment of balance of sale consideration in the suit by giving necessary data in his written statement he shall not be permitted to simply file a cheque application after the trial is over and decree is passed. In such a case, the only course open to him would be to resort to a separate suit to work out his remedies under the terms and conditions of the sale deed".
So, viewed from any angle, the order of the lower Court has to be seaside.
9. The Civil Revision Petition is accordingly, allowed, but in the circumstances, without costs.
10. Revision allowed.