THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY C.R.P.Nos.6569 and 6570 of 2006 Dated:31st December, 2009 Between: 1. S.Munirathnam & Ors. …Petitioners (in both the CRPs) and 1.K.J.Nagabhushana Rao Naidu & Ors. …Respondents (in both the CRPs) *** THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY C.R.P.Nos.6569 and 6570 of 2006 COMMON ORDER: Both these revisions are directed against the orders passed on interlocutory applications being I.A.No.225 of 2005 and I.A.No.226 of 2005 in O.S.No.5 of 2005 on the file of I Additional District Judge, Chittoor. More precisely, C.R.P.No.6569 of 2006 is directed against the order dated 28.09.2006 passed in I.A.No.225 of 2009 and C.R.P.No.6570 of 2006 is directed against the order dated 28.09.2006 passed in I.A.No.226 of 2005 in O.S.No.5 of 2005. 2. Since both the revisions arise out of the interlocutory orders passed in O.S.No.5 of 2005, they are heard together and are being disposed of by this common order. 3. Background facts in a nutshell leading to filing of both these revisions by the proposed parties in O.S.No.5 of 2005 are: The plaint schedule land known as ‘Raja K.J.V.Nayum Vari Silver Jubilee Park’ was originally part and parcel of the palace property enclosed by a compound wall. Late Zamindar of Kangundi Estate namely Raja K.J.Venkatapathi Nayani Varu had two sons namely K.J.Ramappa Nayani Varu and K.J.Subbarajuly Nayani Varu. K.J.Nagabhushana Rao Naidu, the plaintiff, is the only son of K.J.Subbarajulu Naidu. K.J.Hemalatha Devi, K.J.Muralidhar, K.J. Vishnu Kumar, defendants 2 to 4, are the wife and sons of K.J.Ramappa Naidu. The plaintiff and the defendants 2 to 4 succeeded to the palace and the available area in the compound as legal heirs of late Raja K.J.Venkatapathi Nayani Varu under a family arrangement. Raja K.J.V.Nayani Varu handed over the plaint schedule property to the Gram Panchayat, Kuppam, for maintaining and developing the park to the benefit of the people of Kuppam. He executed a gift deed in favour of the Gram Panchayat, Kuppam on 29.06.1948, reserving right to resume the gifted property either to him or to his legal representatives in the event of the Gram Panchayat violating the condition of maintaining the park in the plaint schedule land. According to the plaintiff, the 1st defendant-Gram Panchayat has not at all taken any steps to maintain the status quo, leave alone developing the same. Therefore, the plaintiff issued a registered notice intimating the Gram Panchayat, Kuppam-1st defendant, his desire to resume the said property under Section 138-A of the A.P.Gram Panchayat Act. The statutory notice was acknowledged by the 1st defendant on 27.10.2004. But, the 1st defendant neither issued a reply nor delivered possession of the plaint schedule property to the plaintiff. Hence, the suit by the plaintiff. Whileso, two applications have been filed by the petitioners herein seeking their impleadment as defendants 5 to 17 in the suit. More precisely, I.A.No.225 of 2005 is filed under Order 1, Rule 8(a) r/w.Sec.151 CPC and I.A.No.226 of 2005 is filed under Order 1, Rules 8(a) and 10 r/w. Sec.151 CPC. L.L.Udaya Kumar has sworn to the affidavits filed in support of the applications. It is stated in the affidavit that the suit schedule park is the communal one situated in Survey No.146/1 in Kuppam village and it is vested with the Government and it is being maintained by the Gram Panchayat. It is further stated in the affidavit that the public had collected contributions from various donors to unveil the statue of Sri K.J.V.Naidu in the middle of the park. Paras.6 and 7 of the affidavit need to be noted and they are thus: “6. I submit that the suit schedule property is a park at Kuppam called as “Raja K.J.V.Nayudu Silver Jubilee Park” situate in S.No.156/1 about two acres in Kuppam village. I submit that since of our date of births and the time immemorial the suit schedule property “park” is maintaining by the Kuppam Gram Panhayat regularly and public of Kuppam and surrounding villagers were enjoying and using the schedule park for taking rest, for conducting panchayats. The park is also used by children as a play ground in the evening times since immemorial times. 7. The Kuppam Gram Panchayt which is maintaining the suit schedule park since time immemorial, protecting and maintaining for the benefit and welfare of the public. The schedule park is the only place of pleasure of Kuppam people. In the evening times the old people and senior citizens are regularly coming and making their walks and rests in between 6 to 7 PM in every evening and thereby the real dream of Donor and the ambition is perfectly fulfilled by proper maintenance by the Gram Panchayt, Kuppam. It is also relevant to submit that since suit schedule property consists of big old trees situate opposite to A.P.S.R.T.C. Bus Station, Kuppam, the passengers who came to Kuppam town to board buses for their destinations also take rests and shelter under the cool shade of trees standing in the park.” According to the proposed parties, the 1st defendant is not properly taking care of the case and therefore, to protect the interest of public at large, they are necessary and proper parties to the suit. The plaintiff filed counter resisting the application. The sum and substance of the counter is that the donee violated the conditions stipulated in the gift deed dated 29.06.1948 and thereby right accrued to the legal heirs of the donor to resume the gifted property. The dispute is between the plaintiff and the 1st defendant and therefore, the proposed parties are neither necessary nor proper parties to the suit proceedings and thus, the applications are liable to be dismissed. The 1st defendant filed counter reporting no objection for impleadment of the proposed parties as defendants in the suit. The learned Additional District Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, proceeded to dismiss both the applications on the ground that the proposed parties have not placed any proof that they got mandate of the people of Kuppam to represent them and that their impleadment in the suit as defendants may delay the proceedings. An observation has been made by the learned Additional District Judge that the proposed parties can seek appropriate remedy against the Gram Panchayat if they have any claim against Gram Panchayat and not against the plaintiff. With the above observations, the learned Additional District Judge proceeded to dismiss both the applications, by a separate orders dated 28.09.2006. Hence, both these revisions by the proposed parties. 4. Heard learned counsel appearing for the parties. 5. Learned counsel appearing for the petitioners submits that the gift deed has been executed by Raja K.J.Venkatapathi Nayani Varu in favour of Kuppam Gram Panchayat whereunder he donated the plaint schedule land for being developed as a park for the benefit of the people of Kuppam and neighbouring villages and the petitioners, who are proposed parties, thereby became the beneficiaries under the said gift deed. A further submission has been made that the Gram Panchayat has spent lot of money for developing a park in the suit schedule land and since the Gram Panchayat did not respond to the notice issued by the plaintiffs demanding re-delivery of the property on the ground of violation of the conditions stipulated in the gift deed, there is a reasonable ground for the petitioners to apprehend that the Gram Panchayat may not put the defence effectively and thereby causing much prejudice to the benefits conferred on the people of Kuppam and neighbouring villages. He would also contend that the petitioners who are the proposed parties are ex-representatives of Kuppam and neighbouring villages and therefore their impleadment as party defendants in the suit is very much essential to place on record the real facts to enable the court to come to right conclusions on the issues involved in the suit. Learned counsel placed reliance on the decision of this court in SARASWATHI NAGAR RESIDENTS WELFARE SOCIETY V. ARJUNDAS[1] and the decisions of Supreme Court in V.J.THOMAS v. PATHROSE ABRAHAM[2] and MUNICIPAL COUNCIL HANSI DISTRICT HISSAR HARYANA V. MANI RAJ[3]. 6. Per contra, learned counsel appearing for 1st respondent/ plaintiff submits that the issue involved in the suit is whether there was any violation of the terms and conditions of the gift deed which entitled the LRs of the donor to claim re-delivery of the property covered under the gift deed and therefore the presence of the proposed parties is not essential for adjudication of the issue involved in the suit. A further submission has been made that the provisions of Order I, Rule 8A of CPC is wholly inapplicable since the issues are not yet settled and it is very premature for the proposed parties who are the petitioners herein to apprehend that 2nd respondent-Gram Panchayat would not put forward its defence effectively. He would also contend that the proposed parties who are the petitioners herein are neither necessary nor proper parties in which case the orders passed by the trial court dismissing their applications do not warrant interference by this court in exercise of the powers under Article 227 of the Constitution of India. In support of his submissions, reliance has been placed on the decision of Supreme Court in RAMESH H.KUNDANMAL v. MUNICIPAL CORPN. OF GREATER BOMBAY[4]. Much emphasis has been laid on para 6, 10 and 14 of the judgment, which read as under: “ ( 6 ) 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.” “( 10 ) THE power of the court to add parties under Order 1 Rule 10, Civil Procedure Code, came up for consideration before this court in Razia Begum In that case it was pointed out that the courts in India have not treated the matter of addition of parties as raising any question of the initial jurisdiction of the court and that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit, he should have a direct interest in the subject matter of the litigation whether it be the questions relating to movable or immovable property.” “( 14 ) IT cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objective. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i. e. , he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered in Amon v. Raphael Tuck and Sons Ltd. wherein after quoting the observations of Wynn-Parry, J. in Dollfus Mieg et Compagnie S. A. v. Bank of England, that their true test lies not so much in an analysis of what are the constituents of the applicants' rights, but rather in what would be the result on the subject matter of the action if those rights could be established, Deviin, J. has stated: "the test is 'may the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights'." 7. Indisputably, 1st respondent/plaintiff filed the suit seeking declaration that D1/Gram Panchayat, Kuppam has violated the conditions in the gift settlement deed dated 29.6.1948 and thereby entitled to recover possession of the plaint schedule property through the process of Court. The gift deed was executed by Raja K.J.Venkatapathi Nayani Varu in respect of the suit schedule property for being developed as a park to the benefit of the people of Kuppam. The relevant portion of the gift deed dated 29.6.1948 needs to be noted and it is thus: “ ….whereas the public of Kuppam have requested the donor to grant to the Panchayat Board the said piece of land and premises described in the schedule hereto for the purpose of laying on a public park – raja K.J.V.Naidu S.Ramachandraiah Executive Officer – and whereas the donor has agreed to transfer the said piece of land and premises to the donee as a gift and the donor has a need to accept the same – Raja K.J.V.Naidu S.Ramachandraiah Executive Officer – and whereas the said piece of land and premises is of the value of Rs.1600 (Rupees one thousand and six hundred only) for the purpose of stamp duty – Raja K.J.V.Naidu S.Ramachandraiah Executive Officer – Now this indenture witnesseth that the donor hereby give grant convey and assignment to the donee, his heirs executors, administrators, legal representatives and assigns who hereby accept the Survey No.146.20/5 situated in the village of Kuppam in the registration sub- district of Kamgundi in the Registration District of Chittoor – Raja K.J.V.Naidu S.Ramachandraiah Executive Officer – and being more particularly described in the schedule hereunder written together also with a radio house a statue compound wall, gate with lock and key arrangement trees – common ledge, ditches fences, ways waters, water users liberties privileges easements advantages and appurtenances whatsoever to the said pieces or parcel of land buildings and premises or any of them in any wise appertaining or hereto fore occupied or enjoyed therewith and all the estate right title interest property claim and demand – Raja K.J.V.Naidu S.Ramachandraiah Executive Officer – whatsoever of the donors into and upon the same premises to have and to hold the said piece or parcel of land and premises hereby granted conveyed and assigned unto the donee his heirs executors, administrators, legal representatives and assigns forever and donor doth hereby in itself and its successors and assigns each of them doth covenants with the donee his heirs, executors, administrator, legal representatives and assigns – Raja K.J.V.Naidu S.Ramachandraiah Executive Officer – that the donor now hath good right to grant convey and assign the premises hereby granted conveyed and assigned unto the donee his heirs, executors, administrators, legal representatives and assigns in the manner aforesaid and that the donee, his heirs, executors, administrators, legal representatives and assigns shall and may at all times after peaceable quietly possess and enjoy the said premises without any lawful eviction interruption claim or demand – Raja K.J.V.Naidu S.Ramachandraiah, Executive Officer – whatsoever from or by the donor its successors or assigns and the free from all encumbrances whatsoever and furnish that the donor its successors and assign and all persons having or lawfully or equitably claiming any estate or interest in the said premises – Raja K.J.V.Naidu S.Ramachandraiah, Executive Officer – any part thereof from under or in trust for the donor its successors or assigns shall and will from time to time and at all times hereinafter …….” A reading of the gift deed does not give any room for doubt that the plaint schedule property ahs been donated by the donor for the benefit of the people of Kuppam and the gift has been accepted by the Gram Panchayat, Kuppam. The proposed parties who are the petitioners herein are, either former or present, peoples representatives of Kuppam. Indeed, 1st respondent/ plaintiff did not seriously dispute the positions held by the proposed parties, who are the petitioners herein. 8. Two provisions of CPC are required to be noted at this juncture and they are Rules 8A and 10 of Order 1 CPC and they read as under: “ 8A Power of Court to permit a person or body of persons to present opinion or to take part in the proceedings: [-While trying a suit, the Court may, if satisfied that a person or body of persons is interested in any question of law which is directly and substantially in issue in the suit and that it is necessary in the public interest to allow that person or body of persons to present his or its opinion on that questions of law, permit that person or body of persons to present such opinion and to take such part in the proceedings of the suit as the Court may specify.]” “10 Suit in name of wrong plaintiff - (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other (2) Court may strike out or add parties.-The Court may at any stage of the proceedings, either upon or without the application of cither 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. (3) No person shall be added as a plaintiff suing without a new friend or as the next friend or a plaintiff under any disability without his consent. (4) Where defendant added, plaint to be amended.-Where a defendant is added, the plaint, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of summons and of the plaint shall be served on the new defendant and if the Court thinks fit, on the original defendant. (5) Subject to the provisions of the [S.22 OF THE Limitation Act, 1877] , the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.” 9. The petitioners filed I.A.No.225 of 2005 under Order I Rules 8A r/w 151 CPC and I.A.No.226 of 2005 under Order I Rule 10 r/w 151 CPC. A plain reading of Order I Rule 8A of CPC indicates that the provisions of the said Rule comes into operation after framing the issues. Admittedly, as on this day no issues are settled by the trial Court. For all practical purposes, trial in the suit has not yet commenced and therefore invocation of the provisions of Order I Rule 8A of CPC before commencing of trial is premature. Therefore, the order passed by the trial court dismissing I.A.No.225 of 2005 filed under Order I Rule 8A of CPC is liable to be dismissed and thus, the order of the trial Court dismissing the application filed under Order 1, Rule 8A CPC does not warrant interference by this Court. 10. The second application being I.A.No.226 of 2005 is filed under Order I Rule 10 CPC. The question of impleadment of a party has to be decided on the touchstone of Order I Rule 10 which provides that only a necessary or a proper party may be added. The relevant portion of the gift deed has been extracted supra. The donor has gifted the plaint schedule land for being maintained as a park for the benefit of the people of Kuppam and neighbouring villages. The suit is filed by one of the LRs of the donor on the ground that the Gram Panchayat is not utilizing the land for which it has been gifted and therefore sought for delivery of the possession of the land. The proposed parties are the people of Kuppam and they are the beneficiaries under the gift deed. They are the proper persons to speak as to the developmental activity that has taken place after the Gram Panchayat took possession of the properties by virtue of the gift deed. In case the suit is decreed in favour of R1/plaintiff, the petitioners would be the effected parties, since they would be deprived of the benefit conferred on them by the gift deed. An identical question came up before the Supreme Court in V.J.THOMAS’s case (2nd cited) wherein it has been held that those who would be effected by the execution of the decree should ordinarily be made parties to the suit. Para 14 of the judgment needs to be noted and it is thus: “ 14. A litigant may execute a decree which was obtained for the benefit of the people of the locality but if he intends to execute a decree which was obtained for his own benefit, those who would be affected thereby should ordinarily be made parties to the suit. Similarly, if a village pathway is the subject matter of the suit on the premise that it is the personal property of the plaintiff, those who use the said pathway or at least have lands adjacent thereto should ordinarily be impleaded as parties. In the latter case, like the present one, applying the legal principles, as noticed hereinbefore, we are of the opinion that a decree which has been obtained by suppression of fact or collusively would not be executable against those who were not parties to the suit.” 11. Since the people of Kuppam would be adversely effected in the event of the suit being decreed, the proposed parties being the peoples representatives, either present or former, are necessary and proper parties to the suit for the proper adjudication of the lis in the suit. 12. In view of the above, C.R.P.No.6570 of 2006 is allowed and whereas C.R.P.No.6569 of 2006 is dismissed. Consequently, I.A.No.226 of 2005 in O.S.No.5 of 2005 stands allowed and dismissal of I.A.No.225 of 2005 in O.S.No.5 of 2005 stands confirmed. No costs. 31st December, 2009. (B.Seshasayana Reddy,J) cs/tnb THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY C.R.P.Nos.6569 and 6570 of 2006 Dated:31st December, 2009 [1] 1997(1) ALT 55 [2] 2008(5) SCC 84 [3] 2001(4) SCC 173 [4] (1992) 2 SCC 524