Andhra HC (Pre-Telangana)
Akula Seshamma vs P. Eswaraiah And Others on 6 February, 2001
Equivalent citations: 2001(2)ALD608, 2001(2)ALT477
ORDER
1. This common order shall dispose of both the CRPs as the questions of law and fact are common to both, CRP No.2732 of 2000 is filed against the order dated 23-6-2000 in IA No.114 of 2000 in OS No.4 of 2000 and CRP No.2749 of 2000 is filed against the order dated 23-6-2000 in IA No.116 of 2000 in OS No.31 of 1995 on the file of the Court of the senior civil Judge, Rajampet. By these impugned orders, the lower Court ordered to implead one Akula Seshamma, wife of late Akula Subbarayudu, the first respondent in both the CRPs as party defendant to Os No.4 of 2000 as well as Os No.31 of 1995. The impugned orders are assailed in these CRPs as vitiated by improper exercise of jurisdiction vested in the trial Court under Order 1, Rule 10 (2) of the Code of Civil Procedure, 1908 ('CPC' for brevity).
2. Succinctly stated, the facts in brief are as follows. The petitioner in CRP No.2749 of 2000 filed OS No.31 of 1995 on the file of the Court of the senior civil Judge, Rajampet for specific performance of registered agreement of sale dated 19-10-1991 in respect of a cinema theatre called "Lakshmi Paradise" in Kodur town.
3. The suit was filed against Akula Krishna Murthy (died during the pendency of the suit) and his two sons. Akula Girish Khanna and Akula Rajesh Khanna (respondents 2 and 3 herein). It was pleaded in the suit that Akula Krishna Murthy and his two sons received an advance of Rs.2 lakhs and executed the suit agreement of sale under which the petitioners are required to pay the balance of Rs.4 lakhs on or before 19-4-1993. In the written statement filed by the defendants, the plea is one cancellation of agreement. Be that as it may, Akula Krishna Murthy died on 20-2-1999. Therefore, the petitioners/plaintiffs filed an application under Order 22, Rule 4 CPC to bring the legal representatives of Akula Krishna Murthy. As his two sons were already on record as defendants 2 and 3, the wife, another son and another daughter of late Krishna Murthy were only added as legal representatives of the deceased, first defendant. In the meanwhile, as the cinematography licence was cancelled by the Joint Collector, Akula Girish Khanna filed a writ petition being WP No.19695 of 1999 before this Court. He also filed a suit being OS No.277 of 1999 on the file of the Court of the Junior Civil Judge, Rajampet against the first petitioner herein, his mother and two brothers for perpetual injunction alleging that the defendants are interfering with the management of the theatre by him. This Court disposed on the writ petition referred to hereinabove directing the transfer of OS No.277 of 1999 on the file of the Court of the Junior Civil Judge, Rajampet to the Court of the senior civil Judge, Rajampet to be tried along with OS No.31 of 1995 filed by the petitioners for specific performance of agreement of sale. At this stage, the first respondent Akula Seshamma filed the two interlocutory applications mentioned at the beginning of this order under Order 1, Rule 10(2) CPC. She claimed that she is a necessary party to both the suits and prayed to be impleaded as a defendant.
4. At this juncture, it is necessary to notice the case of the first respondent herein. She is the wife of one Akula Subbarayudu who is the original owner of Lakshmi Paradise theatre, which is his self-acquired property. According to her, Akula Subbarayudu died on 24-11-1982 bequeathing all his self acquired properties including the theatre to her under a registered Will dated 19-8-1982; that after his death she filed a suit being OS No.34 of 1983 on the file of the Court of the Subordinate Judge, Cuddapah against her two sons (sons of late Subbarayudu) Akula Krishna Murthy and Akula Bhaskar for declaration of title to the property and for delivery of possession, that as the two sons played fraud and filed a compromise memo in the suit and having come to know the same she got the compromise decree cancelled on the grounds of fraud and misrepresentation; and that ultimately OS No.34 of 1983 was decreed in her favour on 27-9-1999 declaring her title to Lakshmi Paradise theatre as well as other properties. Therefore, she claimed that she is a necessary party to both the suits and sought for impleadment under Order 1, Rule 10(2) CPC. The applications were opposed by the petitioners herein on the ground that in OS No.34 of 1983 she relinquished all her rights in respect of the theatre in question and as on the date of registered agreement of sale, she had no title or interest to the property and therefore she is not a proper or necessary party. The Court below came to a conclusion that being the legal heir of deceased Akula Subbarayudu and also the legatee under the registered Will dated 19-8-1982, her presence is necessary for effective and complete adjudication of the lis in both the suits and accordingly allowed her applications. Aggrieved by the two separate orders, these two CRPs are filed.
5. Learned Counsel for the petitioners, Sri M.P. Chandramouli contends that in a suit for specific performance of agreement of sale, a third party cannot be impleaded as a necessary party as the issues in such a suit are altogether different from the issues that might arise between the third party and the vendors. He also elaborated the submission by placing reliance on various facts and circumstances and he would like this Court to draw an inference that the present applications filed by Akula Seshamma are collusive only to drag on the malter and defeat the rightful interest of the petitioners/plaintiffs.
6. Sri K. V. Chalapathi Rao, learned Counsel for respondent No.1 submits that in view of the admitted facts that Akula Seshamma is the wife of late Subbarayudu, that she is the beneficiary of the registered Will dated 19-8-1982 and that her suit being OS No.34 of 1983 was decreed declaring her title to Lakshmi Paradise theatre, she is a necessary and proper party to the suit filed by the petitioners as well as her grand sons for settling all the issues in the lis. In any event, the learned Counsel submits that during the pendency of the suit filed by her before the Court of the Subordinate Judge, Cuddapah for declaration of title, the doctrine of lis pendency was in operation and therefore her elder son Akula Krishna Murthy and his two sons could not have legitimately entered into an agreement of sale with the petitioners/plaintiffs. He also submits that during the pendency of the suit OS No.31 of 1995, Akula Krishna Murthy, the first defendant therein died and the petitioners themselves brought on record the wife, the other son and another daughter of late Krishna Murthy as his legal representatives. Being mother, Akula Seshamma is a Class I heir as per Section 8 read with Schedule I of Hindu Succession Act, 1956 and therefore in any event she ought to be added as defendant in which event, in law, she is entitled to take all pleas available to her including the plea that the vendors of registered suit agreement have no valid title or interest in the suit schedule property.
7. Be it noted that in the lower Court, respondents 2 to 6 herein did not oppose the applications filed by Akula Seshamma. Therefore, though this Court ordered notices to respondents 2 to 6, as they did not raise objection, their absence need not detain this Court any further.
8. Having regard to the submissions made by the learned Counsel for the respective parties, the only point that arises for consideration is whether the first respondent is a proper and necessary party to OS No.31 of 1995 and OS No.4 of 2000 on the file of the Court of the senior civil Judge, Rajampet.
9. The point for consideration involves examination of the question whether the first respondent being the mother of deceased Akula Krishna Murthy can come on record as co-defendant being Class I heir. In fairness to the learned Counsel for the petitioners, I must say that the submission of Sri K. V. Chalapathi Rao on this aspect is not seriously contested by Sri M.P. Chandramouli. This, in usual circumstances, ought to have disposed of the CRPs affirming the order of the lower Court. Indeed, Sri M.P. Chandramouli fairly submits that his clients would not have any objection for Akula Seshamma being impleaded as co-defendant as a legal representative of Akula Krishna Murthy in which event he submits, as Class I heir she would be entitled equally along with other legal heirs simultaneously and the same would not be objectionable. However, he seriously objects for Akula Seshamma coming on record as the sole legatee of Akula Subbarayudu under registered Will dated 19-8-1982. Therefore, it is necessary to deal with this aspect of the matter.
10. Order 1, Rule 10(2) CPC deals with the power of the Court to strike out or add parties. In the first place, the Court is competent to strike out the name of any party improperly joined as plaintiff or defendant. The principle to be applied by the Court is whether it is just and proper to continue the name of any party improperly joined as plaintiff or defendant. In the second place, the sub-rule permits and empowers the Court to add--
(i) any person as plaintiff or defendant who ought to have been joined as a party; and
(ii) to add any person as plaintiff or defendant whose presence before the Court is necessary in order to effectually and completely adjudicate upon and settle all questions involved in the suit.
11. A plain reading of the sub-rule shows that the Legislature intended to avoid multiplicity of proceedings and therefore the language is couched in broader terms. The provision requires liberal and expansive interpretation and not restricted or rigid interpretation. The principle is well settled.
12. In Anil Kumar Singh v. Shivnath Mishra, , the Supreme Court interpreting Order 1, Rule 10 (2) CPC laid down as under:
"By operation of the above-quoted rule though the Court may have power to stike out the name of a party improperly joined or add a party either on application or without application of either party, but the condition precedent is that the Court must be satisfied that the presence of the party to be added, would be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit. To bring a person as party-defendant is not a substantive right but one of procedure and the Court has discretion in its proper exercise. The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject-matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience, and to avoid multiplicity of proceedings."
13. The Supreme Court also ruled that in a suit for specific performance the question is whether the vendor had executed the document and whether conditions prescribed in the provisions of Specific Relief Act, 1963 have been complied with for granting the relief of specific performance. Though Sri M.P. Chandramouli submits that this judgment s an authority for the proposition that in a suit for specific performance of agreement of sale a third party is not a necessary party, the submission cannot be accepted, for, the Supreme Court did not lay down any such rule. In fact, referring to the earlier judgments in Razia Begum v. Sahebzadi Anwar Begum, and Lala Durga Prasad v. Leila Deep Chand, , as well as Sections 15 and 16 of Specific Relief Act, the Supreme Court categorically observed that based on the fact situation the relief has to be moulded by the Court. The Supreme Court also noticed that in a suit for specific performance, the subsequent purchaser is a necessary party. Therefore, it can be concluded that though a third party who is not at all concerned with the property in question cannot be claimed to be added as a plaintiff or defendant under Order 1, Rule 10(2) CPC. A person having interest in the suit schedule property is a proper and necessary party for effective and complete adjudication of all issues in a suit for specific performance of agreement of sale.
14. Further, the jurisdiction to order specific performance is basically the one in the realm of "equity". A Court of equity is always competent to apply the principles of justice and fair play so that the beneficiaries of equities would not only be the parties before it but also the parties who have prima facie claim or interest in the suit property. From this point of view also, the provisions of Section 15 of Specific Relief Act, especially the words "any party thereto" or "representative in interest" should be interpreted broadly as meaning any party having interest in the property in respect of which specific performance of contract is claimed.
15. As already noticed, Akula Seshamma is admittedly the mother of Akula Krishna Murthy, the first defendant in OS No.31 of 1995 and therefore in equity she is a necessary party to be impleaded as defendant.
16. The facts noticed that Akula Seshamma is the wife of Subbarayudu who executed registered Will in her favour bequeathing all his properties to her and that she filed a suit for declaration and title and succeeded in OS No.34 of 1983, would show that even if she is not impleaded as Class I heir, still by virtue of the decree in OS No.34 of 1983 she has a right to claim the absolute title to the property in question and therefore she is a proper and necessary party for effective and complete adjudication of all issues in both the suits.
17. For the above reasons, I do not find any error in exercise of jurisdiction by the Court below, which occasioned in failure of justice. Accordingly, the civil revision petitions are dismissed. There shall be no order as to costs.