Andhra HC (Pre-Telangana)
S.V. Krishna Reddy vs S. Mariam Bee And Ors. on 26 July, 1993
Equivalent citations: 1993(3)ALT44
ORDER S. Parvatha Rao, J.
1. The petitioner questions the order of the learned Principal Subordinate Judge at Anantapur in I.A. No. 740 of 1987 in O.S. No. 189 of 1983 dt.26-10-1992 rejecting the application made under Rule 10 of Order 1 of the Civil Procedure Code for impleading respondents 2 to 4 herein as defendants 2 to 4 in the said suit O5. No. 189 of 1983. The said suit was filed by the petitioner herein against the 1st respondent herein for specific performance of an agreement of sale dated 9-6-1983 said to have been executed by the 1st respondent in his favour. The said suit was instituted on 29-9-1983.
2. The reasons for presenting I.A. No. 740 of 1987 were given by the petitioner in his affidavit in support of the said LA. in the following manner: The 1st respondent herein entered into a partition with respondents 2 to 4 in respect of the property which is the subject matter of the suit agreement. According to him, there cannot be any joint family among Muslims and the partition deed was executed deliberately with a view to get over the suit agreement. Under these circumstances, the petitioner sought to implead respondents 2 to 4 as necessary parties to the suit. In the said LA. the petitioner also sought amendment of his plaint in the said suit by introducing the following paragraph:
"Defendants 2 to 4 along with the 1st defendant who is the wife of the 2nd defendant and who is the mother of defendants 3 and 4 have fraudulently and designedly brought a nominal document calling it as deed of partition purporting to divide the suit property into four equal shares. There cannot be any joint family property and there cannot be any partition among Muslims. It is the exclusive property of the 1st defendant and the alleged partition arrangement does not confer any right upon the defendants 2 to 4. However, by way of abundant caution, the plaintiff is adviced to implead the defendants 2 to 4. In the said circumstances, defendants 2 to 4 are bound to join in the execution of the sale deed to be executed by the defendant."
The petitioner also sought an amendment of the reliefs portion of the plaint by including the following reliefs:
"and direct the defendants 2 to 4 to join in the execution of the sale deed to be executed by the defendant and substitute 'the defendant No. 1 for the 'defendant' in its place."
The petitioner herein described these amendments as consequential amendments.
3. The 1st respondent herein opposed the said application contenting that the partition deed was valid and binding and that the petitioner had no right to question the same and that the partition was not fictitious and that therefore the application was liable to be dismissed.
4. Though the application was filed by the petitioner herein under Rule 10 of Order 1 of the C.P.C. a reading of the order of the learned Subordinate Judge dated 26-10-1992 gives an impression that he treated it more as an application under Rule 17 of Order 6 i.e. for amendment of the plaint. I am of the view that the learned Subordinate Judge is not right in treating it as an application for amendment of the plaint. That the learned Subordinate Judge treated the application of the petitioner herein as one for amendment of the plaint under Order 6 Rule 17 of the Civil Procedure Code is obvious from the only paragraph at the end of his order wherein he considered the matter and held that it was very well settled law that an amendment must be refused when it was sought beyond the statutory period fixed for the original cause of action and dismissed the application as belated "on the point of limitation."
5. I am of the view that the learned Subordinate Judge is not right in rejecting the application for impleading respondents 2 to 4 as defendants 2 to 4 in the suit treating the application as one for amendment of the plaint under Rule 17 of Order 6 of the Civil Procedure Code. The case law relied upon by the learned Subordinate Judge related to amendments of the pleadings under the said Rule 17. That approach of the learned Subordinate Judge is unwarranted in view of the application being for impleading the parties under Rule 10 of Order 1.
6. In this connection the scope of Sub-rule (4) of Rule 10 of Order 1 has to be considered. The heading of the said sub-rule is "Where defendant added, plaint to be amended." The said sub-rule is as follows:-
"Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant."
This sub-rule begins with a condition precedent - "Where a defendant is added...............". Therefore, the amendments contemplated under the said sub-rule are to be made only if and when a defendant is added under the said Rule 10. The amendments contemplated are "as may be necessary." I am of the view that the amendments that can be made to the plaint under the said Sub-rule (4) are only those that become necessary by reason of the addition of a defendant; that means, consequential amendments, consequent to the addition of the defendant or the defendants. This is also reflected in Rule 28 of the Civil Rules of Practice which is as follows:-
"28 (New) Amendment in Pleadings:-
An application for amendment made under Order 1, Rule 10, Order VI, Rule 17, or Order XXII of the Code, shall also contain a prayer for all consequential amendments. The Presiding Officer shall reject the application if it is not in accordance with the law or these rules. Provided that verbal corrections may at any time be made in pleadings with the permission of the Court."
But, when substantial amendments are sought to be made to the plaint which are not merely consequential to the addition of a defendant or defendants and which involve new cause of action or new reliefs a separate application has to be made under Rule 17 of Order 6 of the Civil Procedure Code for amending the plaint in that manner.
7. So far impleading of parties is concerned, this Court in Bala Narasimha v. Gangaputra Co-op. Housing Society, (1984) II An.W.R.101 has clarified the position under Rule 10 of Order 1 relying on the decision of a Division Bench of this Court in Khaja Abdul v. Mahabub Saheb, AIR 1979 A.P. as follows:-
"But the Division Bench of this Court in Khaja Abdul v. Mahabub Saheb, has revived the entire case law on the subject and has held that the expression questions involved in the suit' would have to be interpreted in a wide sense and that persons claiming interest in the suit would have to be impleaded even though the claim they make is not directly related to the dispute between the original parties to the suit. The Division Bench relied upon several earlier judgments of the Andhra Pradesh and the Madras High Courts on this question."
The Division Bench of this Court in Khaja Abdul's case (2 supra) held as follows:-
"This provision (Order 1, Rule 10) must be liberally construed as the intendment being effective and complete adjudication and settlement of all the questions involved in the suit. The expression 'settle all the questions involved in the suit' used in Order 1, Rule10(2), C.P.C. is susceptive of a liberal and wide interpretation so as to take in the final adjudication of all the questions pertaining to the subject-matter thereof. Such wide interpretation warranted by the language employed by Order 1, Rule 10 (2), C.P.C. would certainly enable the court to avoid conflicting decisions on the same questions and, at the same time, finally and effectually put an end to litigation respecting them. .... .... .... ....
.... .... ..... ..... ..... ..... The crucial test for the addition or otherwise of a particular party as defendant or plaintiff is whether the presence of such party is necessary or at least proper without whom there can be no effective and final adjudication of all issues involved in the suit with regard to the same subject-matter.
The Division Bench has observed that this power may be exercised at any stage of the proceedings either upon or without the application of either party, and that this power must be exercised in the interest of justice and also in respect of all the questions relating to the subject-matter of the suit. In Bala Narasimha's case (1 supra) the plaintiff-society claimed only a decree for specific performance against its vendor the 1st defendant. No other consequential relief was claimed in the suit filed by the plaintiff-society either for injunction or for possession of the property covered by agreement in its favour by the 1st defendant. Certain third parties claiming that portions of the property which was the subject-matter of that suit were sold to them by the 1st defendant in that suit, sought to implead themselves in that suit as defendants. The trial Court dismissed their application and they questioned the same before this Court in a Civil Revision Petition. While allowing the C.R.P. the learned Single Judge in Bala Narasimha's case (1 supra) held as follows:-
"Even in cases where specific performance alone is asked for it may be relevant to go into the question as to whether one of the parties is in possession for the purpose of deciding the truth of the agreement or the question as to whether one of the parties was ready and willing to perform the contract. Even if such consideration do not arise in a simple suit for specific performance there is no doubt that the party who is successful in getting a sale deed from the vendor pursuant to the decree will not keep the decree without using it for the purpose of seeking possession ultimately. As and when the successful vendee seeks to obtain possession the dispute between persons already in possession pursuant to an earlier agreement or a latter agreement has necessarily to be gone into once again. According to the judgment of the Division Bench of this Court in Khaja Abdul's case (2 supra), one of the purposes of impleading parties is to avoid multiplicity of suits. Therefore instead of permitting the dispute relating to the possession of the property to be kept in suspend animation impleading of the party holding or claiming to hold under a prior or latter agreement would certainly avoid multiplicity of suits."
8. But there is a distinction between the plaintiff seeking to imp lead a person as a defendant to his suit and an intervener coming forward to implead himself in the suit as a defendant. In Ramesh H. Kundanmal v. Municipal Corporation. of Greater Bombay, the Supreme Court recently had an occasion to consider Rule 10 of Order 1 in some detail. The Supreme Court observed and held as follows:-
"Plaintiff is no doubt dominus litis and is not bound to sue every possible adverse claimant in the same suit. He may choose to implead only those persons as defendants against whom he wishes to proceed though under Order 1 Rule 3, to avoid multiplicity of suit and needless expenses all persons against whom the right to relief is alleged to exist may be joined as defendants. However, the Court may at any stage of the suit direct addition of parties. A party can be joined as defendant even though the plaintiff does not think that he has any cause of action against him. Rule 10 specifically provides that it is open to the Court to add at any stage of the suit a necessary party or a person whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. Sub-rule (2) of Rule 10 gives a wide discretion to the Court to meet every case of defect of parties and is not affected by the inaction of the plaintiff to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touchstone of Order 1 Rule 10 which' provides that only a necessary or a proper party may be added. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. The addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case.
The Supreme Court further observed:
"The case really turns on the true construction of the rule in particular the meaning of the words '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.' The Court is empowered to join a person whose presence is necessary for the prescribed purpose and cannot under the rule direct the addition of a person whose presence is not necessary for that purpose. If the intervener has a cause of action against the plaintiff relating to the subject-matter of the existing action, the Court has power to join the intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions."
9. In the present case, the plaintiff himself seeks to implead respondents 2 to 4 as defendants in his suit. I am of the view that respondents 2 to 4 herein have to be impleaded in the suit for the purpose of a full adjudication of all questions relating to the capacity of the 1st respondent to sell the property which is the subject-matter of the agreement sought to be specifically enforced in the suit, in view of the alleged partition deed between the respondents in respect of the very same property.
10. Therefore the order of the learned Principal Subordinate Judge at Anantapur dated 26-10-1992 dismissing I.A. No. 740 of 1987 is set aside and he shall implead respondents 2 to 4 herein as defendants 2 to 4 in O.S. No. 189 of 1983.
11. The next question that arises is, what are the consequential amendments that should be permitted under Sub-rule (4) of Rule 10 of Order 1? The necessary amendments to be made are obviously in the cause title of the plaint and in the description of parties. Rule 28 of the Civil Rules of Practice requires that an application under Order 1 Rule 10 C.P.C should also contain, a prayer for all 'consequential amendments' and that the Presiding Officer shall reject the application if it is not accordance with law or these Rules. The 'consequential amendments' sought to be made by the petitioner herein were already extracted in the earlier portion of this judgment. I am of the view that the last sentence in the passage sought to be introduced into the body of the plaint definitely goes beyond the scope of 'consequential amendment' because in that the petitioner herein contends that "defendants 2 to 4 are bound to join in the execution of the sale deed to be executed by the defendant." Admittedly the agreement of sale dated 9-6-1983 in respect of which specific performance is sought by the petitioner was executed only by the 1st respondent herein and if respondents 2 to 4 are also to be directed to join the sale deed to be executed by the 1st respondent that would be introducing a new cause of action which goes beyond the scope of the suit as originally instituted. The petitioner can seek such an amendment only by a separate application under Order 6 Rule 17 of the C.P.C. I am of the view that it would have been better had the petitioner preferred a separate application under Rule 17 of Order 6 of the Civil Procedure Code for making comprehensive amendments simultaneously along with the present application because the petitioner really is seeking amendments which are not merely consequential to the impleading of respondents 2 to 4 as defendants 2 to 4 in the suit. However.. I am inclined to allow the following amendment to be made in the plaint by including the same at an appropriate place:-
"Defendants 2 to 4 along with the 1st defendant who is the wife of the 2nd defendant and who is the mother of defendants 3 and 4 have fraudulently and designedly brought a nominal document calling it as deed of partition purporting to divide the suit property into four equal shares. There cannot be any joint family property and there cannot be any partition among Muslims. It is the exclusive property of the 1st defendant and the alleged partition arrangement does not confer any right upon the defendants 2 to 4."
12. The Civil Revision Petition is allowed accordingly. No costs.