Andhra Pradesh High Court - Amravati
C V Reddy, Chittoor Dist vs E Eswar Reddy, Chittoor Dist 1 Other on 24 February, 2022
THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
C.R.P.No.793 of 2016
(Through physical mode)
ORDER:
Whether the third party can seek to be impleaded as another defendant in a suit for perpetual injunction has come up for consideration in this revision petition. This revision petition is preferred against the order dated 04.12.2015 in I.A.No.894 of 2015 in O.S.No.368 of 2014 on the file of I Additional Junior Civil Judge, Tirupati, Chittoor District.
2. The petitioner herein is the plaintiff and the 2nd respondent is the defendant. 1st respondent herein is the third party to suit.
3. Petition under Order 1, Rule 10 CPC was filed by the third party to implead him as the 2nd defendant in the suit filed for perpetual injunction basing on a sale deed dated 15.10.2005 executed by M.Venkateswara Rao. The petitioner says he is owner and in exclusive enjoyment of Ac.0.10 cents in S.No.708/4A along with other properties having the same being inherited from his father who purchased from E.Dhananjaya Reddy and five others on 11.02.1991 under a registered document No.58/1991 and his father died on 22.08.2001 and that he raised a compound wall around the property. He further says that the plaintiff filed a caveat petition against him and that he does not know about the purchase of the property by M.Venkateswara Rao or the plaintiff.
4. On the other hand, the plaintiff, opposing the petition, says his vendor K.Chinn Reddeppa purchased the property under a registered sale deed on 03.02.2005 from M.Munuswamy and others; that P.Sulochana and others purchased the same under a registered 2 sale deed on 16.04.1998 from C.Munireddy and others and on 03.10.1998 from E.Madhava Reddy and others and on 06.05.1998 from E.Ademma and others and on 20.07.1998 from K.Munaiah respectively for valid consideration and they have been in possession and enjoyment of the same till they sold the same to M.V.Venkateswara Rao; that the plaintiff purchased the plaint schedule property including the land in S.No.708/4A (4A2 as per ROR) to an extent of Ac.0.14 cents under a sale deed on 15.10.2015; that after the death father of the petitioner, E.Jayarami Reddy, his family members viz D.Chenga Reddy, D.Perumal Reddy, D.Venkata Reddy, D.Eswara Reddy (petitioner), E.Rama muni Reddy, E.Chenga Reddy, E.Narayana Reddy sold the land in S.No.708/4A to an extent of Ac.0.10 cents out of Ac.0.40 cents and other lands to C.Sudhakar Reddy under a registered sale deed on 26.06.2004; that C.Muni Reddy and others have sold the land in S.No.708/4A to P.Sulochanamma long time back under a registered sale deed on 16.04.1998, but, because of the false claim of the petitioner, C.Muni Reddy's son C.Sudhakar Reddy again got the said property under a registered sale deed on 26.06.2004 on the basis of the boundaries; and that the petitioner has no right or possession, nor has he locus standi to contest.
5. The lower Court allowed the petition observing that there is dispute regarding the property; that the plaintiff had not placed any material to show that the petitioner is not a necessary party that nothing is placed to show prejudice would be caused to the plaintiff if the petitioner is added as 2nd deendant in the suit; that the plaintiff, except saying that the petitioner and his family members already had sold away the property, nothing in this regard was filed before the 3 Court; that the plaintiff had not denied the allegation with regard to averments in Caveat Petition; and that no prejudice would be caused to the plaintiff, if the petitioner is added as 2nd defendant in this suit for permanent injunction and the plaintiff and the existing defendant can file objections and written statement, if they have nay grievance.
6. Having aggrieved by the order, the plaintiff filed this revision petition on the grounds that (i) the petitioner is not a necessary party to the suit; (ii) the impleadment would change the nature of the suit;
(iii) if at all the petitioner has any right, possession etc., adverse to that of the plaintiff, remedy would be to file another suit; (iv) the petition has been filed to protract the suit; (v) it is erroneous to observe that no prejudice or injustice would be caused to the plaintiff;
(vi) as per the sale deed filed by the petitioner along with the petition, he has no interest in the suit schedule property as his claim is for a different item of property; (vii) the lower Court failed to mark and look into the documents filed by the petitioner along with the petition; and,
(viii) the impugned order is illegal, irregular and the Court exceeded the jurisdiction vested on it and the order would occasion failure of injustice, if allowed to continue in force.
7. The point for consideration is:
Whether the impugned order suffers from irregularity or illegality?
8. Plaintiff is master of his suit, in other words, dominus litis. This concept is enshrined mainly in Order 1 Rule 3 CPC and also can be seen under Order 2 Rule 3 CPC etc. in the Code. The plaintiff is not bound to sue possible adverse claimant in the same suit. The risk the plaintiff takes, in his choice, is claims being barred by time or such 4 other statutory restrictions. The general rule of choice of the plaintiff is subject to the provision under Order 1 Rule 10 CPC which enables Court to add or delete any party to the suit at any stage of the proceedings, subject to the satisfaction of the Court that the presence of such party is necessary to enable the Court effectively and completely adjudicate upon the questions involved in the suit. Otherwise, the plaintiff cannot be compelled to face litigation with the presence against whom he has no grievance. There cannot be any straight docket formula as to who is necessary party to be impleaded. It all depends on the nature of the relief sought on the facts and circumstances in each case.
9. In this regard, it is appropriate to refer the relevant provisions of law as follows:
Order I. Rule. 3 Who may be joined as defendants.- All persons may be joined in one suit as defendants where-
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and
(b) if separate suits were brought against such persons, any common question of law or fact would arise.
Order I. R. 10 (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.
5
10. POINT: At the outset, learned counsel for the revision petitioner placed reliance on a decision of this Court in the case of Kunisetti Gangi Reddy v. Kukkuteswara Swamy Temple rep. by its Executive Officer and others1 in support of his contention that in a suit for mere injunction, a third party cannot be allowed to be impleaded as a defendant, since any decree, if passed in the suit, does not bind the third party. It is pertinent to refer to the facts of the decision, which are as follows:
11. The suit was filed for an injunction against respondents 2 to 6 herein restraining them from interfering with the possession of the plaint- schedule property by alleging that he had taken the plaint schedule land on lease from the 1st Respondent herein and that R-2 to R-6 therein have no manner of interest in the property. The 1st respondent filed I.A. No.755 of 89 under Order-I, Rule 10, C.P.C. with a prayer that it should be allowed to come on record to contest the suit. The said petition was allowed and it is assailed in the revision petition. In the affidavit filed in support of I.A. No. 755 of 89 it was alleged for R-1 herein that in order to have the support for the Writ Petition, the revision petitioner herein had chosen to file O.S. No. 90 of 89 and it is by way of fraud on the court and as it was filed collusively, they may be permitted to contest the suit. On the above facts, it was held by this Court as under:
"The suit is for mere injunction as against R-2 to R-6 herein. Any decree if passed in the suit does not bind R-1. If the latter is of the view that this suit would affect their interest, they are free to file a suit claiming appropriate relief. But it is not a matter wherein they should be allowed to come on record as the defendant in the suit for injunction."1
1993 (1) ALT 677 6
12. In the light of the above decision, the observation of the Court below that in a suit for perpetual injunction if the proposed petitioner is added as 2nd defendant, no injustice will be caused is not sustainable and if the third party has any grievance, as observed in the decision, appropriate recourse should be taken. Merely because, a caveat petition was filed and the plaintiff has not denied the allegations with regard to the averments in the caveat, it does not entitle the third party to be impleaded as a defendant, particularly in view of the observations in the decision (supra). Thus, for these reasons, the impugned order is liable to be set aside and it is not necessary to go into the question of existence of any dispute between the plaintiff and the third party with regard to the property involved in the suit.
13. Accordingly, the Civil Revision Petition is allowed setting aside the order dated 04.12.2015 in I.A.No.894 of 2015 in O.S.No.368 of 2014 and I.A.No.894 of 2015 stands dismissed.
There shall be no order as to costs.
Pending miscellaneous petitions, if any, shall stand closed.
_________________ B.S.BHANUMATHI, J 24th day of February, 2022 PNV/RAR