IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE THIRTIETH DAY OF AUGUST TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.979 of 2011 Between: Smt. Kamsali Lalithamma .. Petitioner AND Smt. Shyamalamma & 4 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.979 of 2011 ORDER: The civil revision petition is directed against the order in I.A.No.206 of 2009 in A.S.No.109 of 2008, dated 09.02.2011, on the file of the III Additional District and Sessions Judge (Fast Track Court), Gadwal. 2. The petitioners 1 to 3 in I.A.No.206 of 2009 approached the first Appellate Court contending that they are daughters of the first respondent/first defendant and Late Kamsali Venkatramulu and sisters of the plaintiff and the second defendant and they came to know about the acquisition of the joint family house, dispute about apportionment of compensation between their mother and brothers and reference in O.P.No.71 of 2008 to the Civil Court by the Land Acquisition Officer which is pending. They claimed that the house remained not partitioned between the parties though it was the absolute property of their father and in O.S.No.28 of 2006, filed by their brothers against their mother and another brother, they were not impleaded though they were entitled to a share in the compensation amount to an extent of 1/6th share. Hence, they request for permission to be impleaded as necessary and proper parties in the first appeal. 3. This request was contested by the first respondent/mother contending that the petitioners never took steps in O.S.No.28 of 2006 to be impleaded though their non-joinder was fatal which could not have been cured by impleading them in the appeal. The appellant/plaintiff conveniently maintained silence about the sisters till the appeal and the first respondent/first defendant, claimed to be the absolute owner of the house, is entitled to receive the entire compensation for the house. The application was claimed by her to deprive her of the compensation and to protract the litigation. Hence, she desired the dismissal of the petition. 4. The first Appellate Court passed the impugned order referring to the rival contentions and noting the admitted relationship between the parties and the acquisition of house No.2-229 of Revulapally village in Chintharevula Gram Panchayat by the Government, the compensation for which is the bone of contention between the parties. The first Appellate Court also noted that the facts of the case are different from the facts under consideration in the decision reported in K. BHASKAR RAO VS. K.A. RAMA RAO[1], as the first defendant did not take this objection of the suit being bad for non-joinder of sisters and as the sisters themselves filed the petition for impleading themselves. The first Appellate Court felt that the presence of the proposed parties is necessary to decide the dispute completely instead of driving the proposed parties to file separate proceedings to agitate for their alleged share in the compensation. Therefore, the first Appellate Court allowed the parties to be impleaded as respondents 4 to 6 in the appeal. 5. The first defendant challenged the said order in this revision contending that the impleadment of the sisters in the appeal stage was a serious irregularity, more so, when they have no right over the amount of compensation and when the suit by one of the sons was dismissed on merits by the trial Court. In the absence of any fresh material being placed before the Appellate Court, this impleadment application at the behest of the plaintiff in the suit to prolong the litigation and to blackmail the old mother should not have been accepted. The Stridhana property of the mother is sought to be, in fact, knocked away by the plaintiff and the present parties and, hence, the first defendant desired the impugned order to be reversed. 6. Heard Sri N. Praveen Reddy, learned counsel for the revision petitioner and Smt. K. Udaya Sree, learned counsel representing Sri G. Vidya Sagar, learned counsel for the three proposed parties and the plaintiff in the suit. 7. The point for consideration is whether the impleadment of the sisters at the appeal stage is to be permitted. 8. Insofar as the relationship of the parties is concerned, there is no dispute that the deceased Kamsali Venkatramulu and the first defendant are husband and wife and the plaintiff, the second defendant and the proposed parties are their children. It is also not in dispute that the house acquired stood in the name of the first defendant and the Land Acquisition award was passed in her favour. On a dispute raised by the plaintiff in the suit, the Land Acquisition Officer was stated to have referred the matter to the civil Court for determination of the question of apportionment of the compensation, if any, and the plaintiff filed the civil suit for a declaration of his right to receive 1/3rd share of the compensation. The first defendant/mother contested the suit and it was specifically pleaded by the learned counsel for the first defendant during the arguments before the trial Court that the three sisters of the plaintiff were not made parties to the suit as admitted by the plaintiff in his evidence as P.W.1 due to which the suit should have to fail. A copy of the written statement furnished by the learned counsel for the revision petitioner for perusal indicated that no specific plea was taken in this regard in the written statement due to which the trial Court, in its judgment, stated at para 12 that no plea was taken by the defendants about the non- maintainability of the suit in the absence of the sisters and no issue was framed in this behalf due to which the trial Court deemed that the defendants have waived such an objection. 9. It is for the first Appellate Court to consider on merits whether any such waiver by the defendants about the non-maintainability of the suit in the absence of the sisters of the plaintiff and the second defendant could have been concluded by the trial Court and whether any such waiver would have made the suit maintainable if it is otherwise not maintainable in the absence of the sisters before the trial Court. 10. The affidavit filed on behalf of the sisters in I.A.No.206 of 2009 significantly did not state as to when, where and how the sisters could take note about the land acquisition proceedings, the reference under O.P.No.71 of 2008 and the suit in O.S.No.28 of 2006 and the various proceedings arising therein. They straight away claimed their right to be impleaded as necessary and proper parties as legal heirs of the original owner, their father, without any explanation for their silence since the commencement of the land acquisition proceedings till the filing of their application for impleadment in the first appeal though mere delay or silence by themselves may not nullify their civil rights, if any, if such rights do exist in respect of the subject property. These are factors which may form circumstances for the consideration of the first Appellate Court in appreciating the conduct of the parties, if such conduct has to be found relevant in adjudicating the dispute. Sri N. Praveen Reddy, learned counsel also brings to notice that strangely the proposed parties and the plaintiff appeared through the same counsel before this Court though appearing through different counsel before the first Appellate Court. 11. These peculiarities apart, in K. BHASKAR RAO’s case (supra 1), the learned Judge concluded that the defect of non-joinder of necessary parties being fatal, the same cannot be cured by impleading them in appeal, though in that case also, the plaintiff pleaded that no shares need go to the already married sisters. The question was not whether it was the plaintiff or the sisters themselves that sought for impleadment as parties, but as to whether such impleadment will cure the fatal defect in the suit at the stage of the appeal, if the suit were to fail due to non-joinder of necessary parties. It should also be further noted that the first Appellate Court needs to address the question of applicability of the principle laid down in K. BHASKAR RAO’s case (supra 1) to the facts of the present case, unmindful of its observations in para 13 of the impugned order and determine the said question in accordance with law, more so, in the light of the said question being specifically raised and argued before the trial Court at the time of arguments on behalf of the first defendant. 12. While the above aspects need to be gone into by the first Appellate Court, the above discussion need not be misunderstood as any expression of opinion by this Court on those questions which are to be decided on their own merits by the first Appellate Court in accordance with law. 13. That apart, the exercise of judicial discretion by the first Appellate Court under Order I Rule 10 Sub-rule 2 of the Code of Civil Procedure, 1908 (for short, “C.P.C”), coupled with its inherent power under Section 151 C.P.C to bring on record the sisters of the plaintiff and the second defendant/the daughters of the first defendant so as to have a comprehensive and complete adjudication of the questions in controversy cannot be perceived to be so perverse as to call for interference in the restricted revisional jurisdiction. The first Appellate Court expressed itself in favour of impleading with a view to avoid multiplicity of proceedings and to have a complete decision on the dispute involved and, therefore, while the impleadment itself need not be interfered with at this stage which will also enable even the revision petitioner to have the issue thrashed out once for all in the presence of proposed parties, any protraction of the litigation which is feared by the aged revision petitioner (stated to be aged 75 years) can be avoided by directing the first Appellate Court to dispose of the appeal within a reasonable time frame and also to be cautious in meeting any attempts for relegating the entire litigation to square one on the ground of impleadment of the daughters of the first defendant at the first Appellate Stage. 14. Therefore, while the order in I.A.No.206 of 2009 in A.S.No.109 of 2009, on the file of the III Additional District and Sessions Judge (Fast Track Court), Gadwal, dated 09.02.2011, is not interfered with herein, the first Appellate Court shall keep in view the questions in issue referred to herein while disposing of the first appeal while determining the same on merits, independent of any observations herein, in accordance with law and the said appeal shall be so disposed of on merits in accordance with law after giving a reasonable opportunity of hearing to both parties within four (4) months from the date of receipt of this order. The Civil Revision Petition is ordered, accordingly, without costs. _____________________ G. BHAVANI PRASAD, J Date: 30th August, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.979 of 2011 Date: 30th August, 2011 KL [1] 2010 (5) ALD 339