THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.5763 of 2010 (Dated : 09-03-2011) Between: Mandeguttala Nagappa S/o Baswalingappa …Petitioner A n d V.Ramachandra Reddy and others …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.5763 of 2010 ORDER: This revision is directed against the order dated 01.10.2010 passed in I.A.No.653 of 2010 in O.S.No.49 of 2008 on the file of Family Court-cum-Additional District Court, Mahabubnagar, whereby and whereunder the learned Additional Judge dismissed the application filed under Order 1 Rule 10 CPC read with Rule 28 of Civil Rules of Practice. 2. Background facts, in a nut shell, leading to the filing of this revision by the proposed party in O.S.No.49 of 2008 are:- Smt. M.Suchitra–Respondent No.6 executed an agreement of sale dated 18.12.2005 in respect of agricultural lands admeasuring Ac.17-28 gts., comprising Survey Nos.44/1, 46, 44/2 situated at Peddapur village of Veldanda Mandal, Mahabubnagar District in favour of V.Ramachandra Reddy, K.Janardhan Reddy, G.Ramulu, K.Narayana Sagar and R.Sateesh Kumar (Respondents 1 to 5 herein). The total sale consideration specified in the agreement of sale is Rs.1,29,21,000/-. The agreement holders claimed to have paid a sum of Rs.35 lakhs on the date of agreement as earnest money and obtained a receipt from M.Suchitra. While so, Suchitra allegedly executed a registered sale deed on 28.12.2006 in respect of Ac.5-06 guntas comprising Sy.No.44/2 situated at Peddapur village of Veldandanda Mandal in favour of B.Lohit Reddy (Respondent No.7 herein). Respondents 1 to 6 i.e., the agreement holders filed suit being O.S.No.49 of 2008 against Suchitra and Lohit Reddy (Respondents 6 and 7 herein) for specific performance of the agreement of sale dated 18.12.2005. The reliefs sought for in the suit read as hereunder:- “ It is therefore prayed that the Hon’ble Court may be pleased to decree the plaintiffs’ suit as under:- a) A decree may be passed against the D-1 for specific performance of suit sale agreement dt.18-12-205 by execution of Regd. Sale deed in plaintiffs favour in respect of Sy.No.44/1,46, 44/2 measuring Acs.17-28 gts., situated at Peddapur village of Veldanda Mandal, Mahabubnagar District. b) The 2nd defendant who is bound by the suit sale agreement dt.18-12-2005 may be directed to join the 1st defendant for execution of sale deed in respect of subject matter of the suit sale agreement. c) On failure of the defendants 1 and 2 to specifically perform the decree passed by the Hon’ble Court, the Hon’ble Court may be pleased to execute a sale deed in plaintiffs favour in respect of the subject matter of the suit sale agreement. d) Other relief in the circumstances of the case which the Hon’ble Court deems fit may also be awarded to the plaintiffs. e) The costs of the suit may be awarded against the defendants in person and their properties “ 3. Respondents 6 and 7 (Defendants 1 and 2) entered appearance in the suit and filed their respective written statements resisting the relief sought for by the plaintiffs. 4. The trial Court framed necessary issues. The plaintiffs examined one witness as Pw.1and marked 10 documents as Exs.A-1 to A-10 on their behalf. On behalf of the 1st defendant, she filed her affidavit in lieu of chief examination. 5. When the case stood posted for cross-examination of Dw.1, the petitioner herein filed I.A.No.653 of 2010 under Order 1 Rule 10 CPC seeking his impleadment as defendant No.3 in the suit. In the affidavit filed in support of the petition, he stated that he is the owner of the land admeasuring Ac.8-09 gts comprising Sy.No.44/2 situated at Peddapur village, Veldanda Mandal. In the year 1998, he gifted Ac.3-03 gts out of Ac.8-09 gts., to Nenavath Reethya and others of Palugu thanda and thereby, he retained Ac.5-06 guntas. Subsequently, one Gandla Ramulu got his name mutated in ROR. He questioned the mutation of Gandla Ramulu in ROR by making appropriate application before the revenue authorities. There being no response from the revenue authorities, he approached the High Court by filing Writ Petition No.15361 of 2009 and obtained interim stay, vide orders dated 30.7.2009 passed in W.P.M.P.No.20175 of 2009. He came to know that Gandla Ramulu basing on the entries in ROR executed a registered sale deed in respect of Ac.5-06 gts in Sy.No.44/2 in favour of 1st defendant Suchitra and thereafter, the said Suchitra entered into an agreement of sale in favour of the plaintiffs. He also came to know that Suchitra executed registered sale deed in favour of B.Lohit Reddy-2nd defendant in respect of self-same land. Since he is the owner of the land admeasuring Ac.5-06 gts in Sy.No.44/2, he is necessary and proper party to the suit filed by the respondents 1 to 5 herein. 6. The plaintiffs as well as defendant No.1 filed counter resisting the application. It is stated in the counter filed by the plaintiffs that the grievance of the proposed party cannot be attended to in the suit proceedings and he has to take out separate proceedings for declaration of his title over the property. It is further stated in the counter that the proposed party having lost his case before the competent revenue authorities like Tahasildar, RDO and Joint Collector cannot be permitted to come on record as one of the defendants in the suit. 7. The counter of the 1st defendant is that for deciding the issue in a specific performance suit, the proposed party is neither a necessary party nor a proper party. Para (4) of the counter needs to be noted and it is thus:- “ I further submit that in the affidavit filed in support of the implead petition the proposed Respondent has stated that before the MRO, RDO and Joint Collector he lost his claim against Sri Gandla Ramulu , R/o Cherukuru village, Veldanda Mandal, Mahabubnagar District. Therefore, at 3 stages under the A.P.Revenue Act the competent authorities decided the claim of the proposed Respondent that he is not entitled to claim any ownership over the land an extent of Ac.5-06 gts. In Sy.No.44/2 at Peddapuram village of Veldanda Mandal and declared that Sri Gandla Ramulu is the owner and possessor of the subject matter of the land. If such is the case the proposed Respondent has no right to implead in the present suit since the nature of the suit and the claim made therein is quite different and distinct with the lis pending before the Hon’ble High Court in WP No.15361 of 2009. I further submit that in the said writ petition, neither the plaintiffs nor the defendants in the present suit were made as parties. Therefore, the pendency of the writ petition is no way come into picture in deciding the lis in the present suit. For deciding the said lis the proposed Respondent has no locus to implead in the present suit. The present implead application is filed in collusion with the plaintiffs only with a view to divert the mind of the court from deciding the real issue involved in the said suit”. 8. The learned Additional Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, proceeded to dismiss the application on the ground that the petitioner is neither a necessary nor a proper party to the suit for specific performance and therefore, it is impermissible for the Court to convert the specific performance suit into a suit for title, by order dated 01.10.2010. Hence this revision by the petitioner-proposed party. 9. Notice before admission came to be ordered on 01.02.2011. The respondents entered appearance through their respective counsel. 10. Heard Sri N.Vasudeva Reddy, learned counsel appearing for the respondents 1 to 4-plaintiffs, Sri K.Ananda Rao, learned counsel appearing for respondent No.6-defendnat No.1 and Sri Korrapati Subba Rao, learned counsel appearing for respondent No.7-defendnat No.2. 11. Learned counsel appearing for the petitioner submits that the petitioner filed Writ Petition No.15361 of 2009 questioning mutation of the name of Gandla Ramulu in ROR and obtained an order of interim stay, as per orders in W.P.M.P.No.20175 of 2009 and as the land claimed by the petitioner is part and parcel of the subject matter of the suit, his presence is essential for proper adjudication of the issues involved in the suit. A further submission has been made that the impleadment of the petitioner is essential to avoid multiplicity of the proceedings in respect of the suit schedule property. In support of his submissions, reliance has been placed on the judgment of this Court in Basant Kumar Soni v. Mukund Das Soni[1] and judgment of the Supreme Court in Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre & Hotels Pvt. Ltd[2]. 12. In Basant Kumar’s case (1 supra), a learned Single Judge of this Court has held that the primary object of Order 1 Rule 10(2) CPC is to bring before the Court at one and the same time all the persons interested in the dispute so that all the controversies in the suit may be finally determined once for all in the presence of all parties without delay, inconvenience and expenses of the several actions, trials and inconclusive adjudication. Few facts of the cited case need to be noted and they are:- The petitioner therein filed O.S.No.47 of 2009 on the file of the Principal District Judge, Medak at Sangareddy for specific performance against respondents 2 and 3 therein, who are being represented by their General Power of Attorney Holder Satyanarayana Soni, in respect of 14 flats in third floor bearing Nos.302, 303, 306 to 308, 310 to 314 and 316 to 319 and Shop Nos. and 10 out of the apartment Chandra Towers in Sy.No.313 Part, Rajampet, Sangareddy, Medak District. The defendants therein having received summons, failed to appear before the Court and the case was posted to 28.8.2009 for ex parte evidence. On coming to know about filing of the suit by the petitioner in O.S.No.47 of 2009, the GPA Holder of respondents 2 and 3 therein filed O.S.No.58 of 2009 for specific performance of agreement of sale in respect of the suit schedule property. In a way, two suits are pending in respect of the self-same property. In these set of circumstances, the learned Single Judge of this Court has observed as hereunder:- “12. Therefore, from the above decisions, it is clear that the proposed party must show some semblance of right and interest in the subject matter or a direct interest in the subject matter of the suit. The primary object of Order I Rule 10 (2) CPC is to bring before the Court at one and the same time all the persons interested in the dispute so that all the controversies in the suit may be finally determined once for all in the presence of all parties without delay, inconvenience and expenses of the several actions, trials and inconclusive adjudication. The petitioner is not a necessary party in O.S.No.58 of 2009 on the file of the Principal District Judge, Medak at Sangareddy, as no relief to be granted, but for the reason that the property covered by contract of sale entered between the 1st respondent herein on one hand and the respondents 2 and 3 on the other and the 2nd agreement of sale dated 14-02-2008 entered between parties therein is one and the same. Even though no relief can be granted against the petitioner, who is not a party to the suit, but his presence is necessary for complete and final decision of the question involved in the suit in as much as the petitioner and the 1st respondent are seeking enforcement of their respective agreements of sale said to have been executed by the respondents 2 and 3 herein on two different dates in respect of the same property. Therefore, the presence of the petitioner may be helpful in effectually adjudicating upon all the points in dispute. It is therefore, the duty of the Court to keep in mind a relevant consideration and as far as possible, multiplicity of proceedings should be avoided. Further, if the two suits are tried separately, there is a possibility of conflict of decisions. To be joined as a party to the suit, the person must have a direct or legal interest in the action. In other words, he must show that the litigation may lead to a result, which would affect him legally by interfering or adversely affecting his legal rights or legally protected interest. In view of the fact that subject matter in dispute is one and the same in both the suits and two persons are claiming to enforce two agreements of sale, if the proposed party is not to be impleaded, there would be conflict of decisions. No doubt, the trial Court observed that petitioner may file a petition for trial of both the suits, which would serve the purpose, but at the same time there would be no pleading insofar as the present petitioner is concerned in respect of O.S.No.58 of 2009. There cannot be any dispute that without there being any pleading, any amount of evidence is valueless. If the petitioner is allowed to come on record, he can file written statement so as to safeguard his interest in relation to the property in dispute. Therefore, the presence of the petitioner is very much essential and necessary as his interest in the property relating to the suit would affect adversely in his absence. This aspect of the case has been overlooked by the trial Court. Therefore, the impugned order is liable to be set aside.” 13. In Mumbai International Airport Pvt. Ltd’ case ( 2nd supra), the Supreme Court held that if the suit for specific performance is filed with an additional prayer for delivery of physical possession from the tenant in possession, then the tenant will be a necessary party insofar as the prayer for actual possession. 14. Learned counsel appearing for the respondents 1 to 4-plaintiffs submits that the suit is filed by respondents/plaintiffs for specific performance of contract of sale. The petitioner is neither a party to the contract of sale nor he is claiming rights over the property through vendor of the respondents/plaintiffs, in which case, the petitioner is neither a necessary nor a proper party to the suit for specific performance basing on the contract of sale. Learned counsel placed reliance on the judgment of the Supreme Court in Kasturi v. Iyyamperumal [3] and Sumitibai v. Paras Finance Co.[4]. Learned counsel also relied on the decision in Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre & Hotels Pvt. Ltd., upon which the counsel appearing for the petitioner placed reliance. 15. Learned counsel appearing for respondents 6 and 7 adopted the contentions advanced by the learned counsel appearing for respondents 1 to 4-plaintiffs. 16. In Kasturi’s case (3rd supra), the Supreme Court categorically held that in a suit for specific performance of contract of sale, the two tests by which a person who is seeking addition in a pending suit for specific performance of the contract for sale must be satisfied. The two tests are:- Firstly, there must be a right to the same relief against a party relating to the same subject matter involved in the proceedings for specific performance of contract for sale and Secondly, no effective decree can be passed in the absence of such a party. The decision in Kasturi’s case( 3rd supra) came up for consideration before the Supreme Court in Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre & Hotels Pvt. Ltd. (2nd supra). The Supreme Court in the later case reiterated the position that necessary parties and proper parties can alone seek to be impleaded as parties to a suit for specific performance and that necessary parties are those persons in whose absence no decree can be passed by the Court or those persons against whom there is a right to some relief in respect of the controversy involved in the proceedings; and that proper parties are those whose presence before the Court would be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person. Referring to suits for specific performance, the Supreme Court held that the following persons are to be considered as necessary parties:- (i) the parties to the contract which is sought to be enforced or their legal representatives; (ii) a transferee of the property which is the subject-matter of the contract. 17. The Supreme Court also explained that a person who has a direct interest in the subject-matter of the suit for specific performance of an agreement of sale may be impleaded as a proper party, on his application under Order 1 Rule 10 CPC. A purchaser of the suit property subsequent to the suit agreement would be a necessary party as he would be affected if he had purchased it with or without notice of the contract, but a person who claims a title adverse to that of the defendant-vendor will not be a necessary party. A person claiming a title adverse to the title of vendor could not be impleaded as a party to the proceedings. 18. The petitioner does not claim the property through Gandla Ramulu who is stated to be the vendor of 6th respondent-M.Suchitra. The petitioner set up an independent title. He neither claims the property through the parties to the contract of sale nor through the predecessors-in-interest of the parties to the contract of sale. When the petitioner set up an independent title, any adjudication in the specific performance suit does not bind him. It has been held by the Supreme Court in Kasturi’s case that the scope of suit for specific performance cannot be enlarged in suit for declaration of title by bringing a third party or a stranger to the suit proceedings. In view of the settled proposition of law, the petitioner, who sets up an independent title, is neither a necessary party nor a property party to the suit for specific performance of contract of sale. The trial Court considered the material brought on record in a right perspective and thereby, proceeded to dismiss the petition. I do not see any illegality or irregularity in the order impugned in the revision warranting interference of this Court in exercise of powers under Article 226 of the Constitution of India. 19. Accordingly, the Civil Revision Petition is dismissed. No costs. _____________________ B.SESHASAYANA REDDY, J Dt.09-03-2011 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.5763 of 2010 (Dated : 09-03-2011) [1] 2010(4) ALD 490 [2] 2010(5) ALD 24 (SC) [3] (2005) 6 Supreme Court Cases 733 [4] (2007) 10 Supreme Court Cases 82