Andhra HC (Pre-Telangana)
M. Sudhakar Reddy And Anr. vs A.P. Housing Board And Ors. on 10 February, 2004
Equivalent citations: 2004(3)ALD548, AIR 2004 (NOC) 378 (AP), 2004 A I H C 1815, (2004) 3 ANDHLD 548, (2004) 2 ANDHWR 66, (2004) 4 CIVLJ 206
ORDER P.S. Narayana, J.
1. The short question involved in the present civil revision petition is whether the revision petitioners, transferees pendente lite by virtue of registered sale deed dated 5-7-1995 executed by Respondents 4 to 7 in the petition-plaintiffs can be brought on record as necessary parties to the present appeal.
2. The revision petitioners moved an application I.A. No. 908/2002 in AS No. 8/ 2000 on the file of I Additional District Judge, Karimnagar which was disposed of by the IV Additional District Judge-Fast Track Court, Karimnagar, whereunder the relief prayed for under Order 1, Rule 10(2) of the Code of Civil Procedure, hereinafter in short referred to as "Code" was negatived. Sri Aga Reddy, (he learned Counsel representing the petitioners/proposed parties would contend that there is no controversy that during the pendency of the litigation, the revision petitioners/Proposed parties had purchased the property by virtue of a registered sale deed dated 5-7-1995 and possession also was delivered to these parties and in view of same, to safeguard their rights in the plaint schedule property, they are necessary parties since certain rights had devolved on these parties during the pendency of the litigation. The Counsel would contend that though Order 1, Rule 10(2) of the Code may not be applicable as such, definitely these parties can be brought on record under Section 146 of the Code. The learned Counsel placed strong reliance on Saila Bala v. Nirmala Sundari, .
3. Sri Prabhakar, the learned Counsel representing the respondents on the other hand had contended that the date of purchase is 5-7-1995 and the date of judgment is dated 11-2-2000 and the present application IA No. 908/2002 was moved in AS.No. 8/2000, and on the ground of inordinate delay itself, the said relief cannot be granted. The Counsel also would maintain that the suit is for mere injunction which is a personal action and inasmuch as this is a different cause of action, these parties are definitely at liberty to initiate yet another action. The Counsel also placed reliance on A. Peter Son Israel v. V. Jayaprada, 2003 (6) ALD (NOC) 102 = 2003 (1) An.WR 403 (AP) and K. Sundara Chary v. LAO., 1990 (1) ALT 521.
4. Heard the Counsel.
5. In view of the material available on record, it is not in controversy that Respondents 4 to 7 in the civil revision petition/plaintiffs in the suit, sold the plaint schedule property to the petitioners on 5-7-1995 and it is also not in controversy that though the transfer was effected during the pendency of the suit itself, these parties had not chosen to come on record during the pendency of the suit or even subsequent to the filing of the appeal and after sufficient lapse of time, the present application had been thought of. The stand taken by the revision petitioners is that in view of the fact that by virtue of the sale aforesaid, possession also had been delivered, they have got substantial interest in the property by virtue of devolution and hence they would be more interested in prosecuting the litigation further and in this view of the matter, dismissing the application either on the ground of doctrine of lis pendens or on the ground of laches cannot be sustained.
6. Section 107 of the Code deals with Powers of Appellate Court and Section 107(2) of the Code reads as hereunder:
"Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."
Order 1, Rule 10(2) of the Code specifies as follows:
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.
The other provisions which may be relevant for the purpose are as specified hereunder. Section 146 of the Code dealing with Proceedings by or against representatives reads as hereunder :
Save as otherwise provided by tin's Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceedings may be taken or the application may be made by or against any person claiming under him.
Order 22, Rule 10 of the Code dealing with Procedure in case of assignment before final order in suit reads as hereunder :
(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or, upon whom such interest has come or devolved.
(2) The attachment or a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of Sub-rule (1).
Order 41, Rule 20 of the Code dealing with Power to adjourn hearing and direct persons appearing interested to be made respondents reads as hereunder:
(1) Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree that appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent.
(2) No respondent shall be added under this rule, after the expiry of the period of limitation for appeal, unless the Court, for reasons to be recorded, allows that to be done, on such terms as to costs as it thinks fit.
There cannot be any controversy that even at the appellate state, parties can be impleaded. No doubt, this power may have to be exercised sparingly and only in exceptional circumstances. Here, the revision petitioners are claiming interest in the property by virtue of a sale transfer pendente lite. It is no doubt true that there is some delay in moving the present application. It is needless to say that a transfer pendente lite always would be governed by the doctrine of lis pendens. The proposed parties/revision petitioners intend to come on record for the purpose of safeguarding their rights in the plaint schedule property. It is also no doubt true that it is a mere suit for perpetual injunction which is a personal action and the sole question which would be decided is possession and even in this view of the matter, the revision petitioners may be interested in the present litigation and driving these parties to yet another litigation would amount to multiplicity of proceedings. In Kannusami Chetti v. M. Rabiath Ammal, AIR 1933 Madras 806, following the view expressed in Ponnusami Asari v. Palaniandi Mudali, AIR 1920 Madras 120 = 56 IC 612, it was held that Order 41, Rule 20 of the Code does not exhaust the Appellate Court's power to add parties, and even if the said Rule does not apply, the Court has power to do so under Order 1, Rule 10 read with Section 107 of the code. In the decision referred Saila Bala v. Nirmala Sundari (supra), the Apex Court held that as a purchaser pendente life, a person would be bound by the proceedings taken by the party in whose favour the decree is passed in execution of her decree, and justice requires that she should be given an opportunity to protect her rights. The Apex Court also held that the right to file an appeal must be held to carry with it the right to continue an Appeal which had been filed by the person under whom the appellant claims and the petition of the appellant to be brought on record as an appellant in an Appeal must be held to be maintainable under Section 146 of the Code. Reliance was placed on the decision of Full Bench in Muthiah Chettair v. Govinddoss Krishnadoss, AIR 1921 Mad. 599 and also in Moidin Kutty v. Doraiswami, . In C. Subbarayudu v. E. Brahmanandan, , it was held :
"The scope of Order 22, Rule 10 CPC is not wide enough so as to permit a settle during pendency of suit to apply to be impleaded as a party in the appeal, because the transfer was not effected pending that proceedings but prior thereof. But the settle can take benefit of Section 146 and apply to be brought on record, for such a course is not prohibited by any other provision of the Code. Section 146 being a beneficent provision should be construed liberally so as to advanced the cause of justice and not in a restricted or technical sense. The expression "claiming under" is wide enough to include cases of devolution and assignment mentioned in Order 22, Rule 10."
It was further held in the self-same decision as hereunder :
"Apart from the provisions of Order 41, Rule 20 CPC the Appellate Court has inherent powers to permit parties to be added to appeals in suitable cases and the language of Rule 20 of Order 41 is not exclusive or exhaustive so as to deprive the Appellate Court of the inherent powers in this behalf. When once it is clear that Rule 20 of Order 41 is not exhaustive of the powers of the Appellate Court for impleading or adding parties to the appeal, certainly powers under Order 1, Rule 10 CPC read with Section 107(2) CPC and under other appropriate provisions including Section 151 CPC in proper cases can be availed of even in appeals. A transferee during the pendeny of an appeal can be added as a party to the appeal under the express provisions of Order 22, Rule 10 CPC. That could not have been possible if Order 41, Rule 20 CPC was intended to be exhaustive of the powers of the Appellate Court."
In Chakrapani v. Ammalu Amma, AIR 1949 Madras 870, it was held:
"Reading Rule 10 with Rule 11 of Order 22, the proper construction of Rule 10 would be to hold that the word "suit" occurring in Rule 10 should, so far as may be, include "appeal". Reading Rules 10 and 11 together a composite rule would be : "In other cases of an assignment, creation or devolution of any interest during the pendency of a suit or an appeal, the suit or appeal may, by leave of the Court, be continued by/or against the person to or upon whom such interest has come or devolved. It would follow that even if the assignment, creation or devolution of interest is during the pendency of a suit, an application for continuation of an appeal from a decree in the suit may be made by or against the person concerned, even though no application was made by him during the suit, to be brought on the record."
In Devisahai v. Govindrao, AIR 1975 MP 275, it was held by the Madhya Pradesh High Court as hereunder:
"So far as allowing a party to be impleaded under Order 1, Rule 10(2) or Order 22, Rule 10, or Order 41, Rule 20 is concerned the discretion has to be exercised by the Court judicially.
There is no bar of the transferee pendente lite being impleaded as a party under Order 22, Rule 10 at the appellate State. However, the question will be one of due diligence. But if he is guilty of unreasonable delay and waits and watches the proceedings without making an attempt to be impleaded, and later on files an application at a very late stage, unless he explains the delay or shows some justifiable reason for having remained silent, his prayer to be impleaded at a late stage even evidently not be allowed."
In C.B. Tamporwala v. Kazim Ali, , it was held that alienees pendente lite can be made parties under Order 1, Rule 10(2) of the Code in a suit for partition they being bound by decree that would be passed. The High Court of Karnataka in Akka Bai v. Gowrawwa, , held:
"Where the applicant-transferee pendente lite had filed application for impleading himself at appellate stage, almost at very end of litigation between the parties on date when compromise was recorded between the parties, contending that compromise petition was fraudulent one made to defeat his legitimate rights acquired by him by deed of assignment alleged to have been executed by respondent by which he had acquired all the rights, title and interest of the respondent in judgment and decree under appeal, the application filed after a delay of five years which was not explained was liable to be rejected on grounds of delay, laches as well for reason that investigation of his claim would result in deciding some other question than what was germane to appeal."
Reliance also was placed on the decision of the Full Bench of this Court in P. Anandu v. M. Acharyulu, AIR 1958 AP 743, where the ambit of Order 41, Rule 20 of the Code had been well discussed. Reliance also was placed on the decisions A, Peter Son Israel v. V. Jayaprada and K. Sundara Chary v. LAO (supra) and a contention was advanced that on the ground of delay, the relief has to be negatived.
7. There cannot be any doubt or controversy that these proposed parties could have approached the Court after the purchase even during the pendency of the suit. The question is whether on that ground alone these parties who are interested in the litigation by virtue of sale in their favour be negatived the relief of being brought on record for the purpose of further prosecuting the litigation or safeguarding their interest. It is no doubt true that the parties are expected to be careful, cautions and diligent in prosecuting a particular litigation and at the earliest point of time they may have to make necessary application to come on record. But when substantial rights of the parties are involved, such rights cannot be defeated merely on the ground of delay and such parties cannot be driven to yet another litigation which would definitely multiply the litigation. It is needless to say that such delay always can be compensated in monetary terms depending upon the facts and circumstances of the case. It is also pertinent to note that such relief cannot be negatived on the ground of doctrine of lis pendens.
8. Hence, viewed from any angle, the impugned order cannot be sustained, but however in view of the inordinate delay in making the application, the civil revision petition is allowed subject to the condition of the revision petitioners depositing Rs. 1000/-(Rupees one thousand only) to the credit of Secretary, Legal Services Authority, High Court of Andhra Pradesh, Hyderabad, within four weeks from today. In default, the impugned order stands. No costs.
9. Heard both the Counsel.
10. At this stage, a request is made, that, in the interest of justice, the appeal itself may have to be disposed of at an earlier date.
11. Hence, the Appellate Court shall make an endeavour to dispose of the appeal itself, within a period of four weeks from the date of receipt of a copy of this order.