*HON'BLE SRI JUSTICE G. BHAVANI PRASAD + Civil Revision Petition No.3431 of 2010 %13/12/2010 # M/s. Kiran Krishna Real Estate & Constructions Private Limited, Represented by its Managing Director Sri V. Krishna Prasad ..... PETITIONER Vs. $ Siddipeta Ranga Reddy and 8 others .....RESPONDENTS ! COUNSEL FOR THE PETITIONER: Sri K.V. Subramanya Narusu ^ COUNSEL FOR THE RESPONDENT NO.1: Sri J. Rajeswar ^ COUNSEL FOR THE RESPONDENTS 2 to 9: None appeared < Gist : Ø Head Note: ? CITATIONS: 1. AIR 2005 Supreme Court 2813 2. 2010 (5) ALD 24 (SC) IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE THIRTEENTH DAY OF DECEMBER TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.3431 of 2010 Between: M/s. Kiran Krishna Real Estate & Constructions Private Limited, Represented by its Managing Director Sri V. Krishna Prasad .... Petitioner AND Siddipeta Ranga Reddy and 8 others …. Respondents ORDER: The Civil Revision Petition is directed against the order passed in I.A.No.2578 of 2009 in O.S.No.55 of 2008 on the file of the Principal District Judge’s Court, Nalgonda, dated 20-04-2010 allowing the petition for impleadment of the 1st respondent herein as the 9th defendant in the suit. The suit for specific performance between the revision petitioner and the other respondents in O.S.No.55 of 2008 is pending trial and the 1st respondent herein came up with this petition claiming that while he and his three brothers are sons of Rami Reddy, the respondents 2 to 9 herein are the heirs of Siddipeta Shivaiah. Rami Reddy and Shivaiah are natural brothers and legal heirs of Balaiah. Balaiah was the original owner and pattedar of the lands in question and there was no partition between Shivaiah and Rami Reddy. After the death of Balaiah, the joint possession and enjoyment between the children and brothers continued and the 1st respondent herein claimed that he came to know about the sale of some agricultural land by respondents 2 to 9 herein under document No.4297 of 2008/ a registered sale deed and also sale of Ac.5.16 guntas in Sy.No.144 in favour of the plaintiff though the total share of respondents 2 to 9 herein is only Ac.4.36 guntas. As they have sold the lands beyond their share, he sought himself to be impleaded as a party to the suit. The plaintiff resisted the request of the 1st respondent herein claiming that the entire revenue records show that the lands were sub-divided as per the possession and enjoyment of the parties and the plaintiff/revision petitioner has no knowledge about O.S.No.56 of 2008 filed by the 1st respondent herein for partition of property against the other family members. The revision petitioner stated that the 5th defendant/Sudhakar Reddy filed O.S.No.54 of 2002 on the file of the Senior Civil Judge’s Court, Bhongir, making the plaintiff also as a defendant and the said suit was dismissed on 28-12-2007 holding that there was partition of all properties earlier. The third party to the suit without any right in the suit schedule property cannot attempt to implead himself without any privity of contract between him and the plaintiff and, therefore, he desired the petition to be dismissed with costs. The trial Court in the impugned order referred to the factual background for the suit for specific performance and noted that the suit was coming up for framing of issues with the defendants 7 and 8 remaining ex parte and the other defendants filing a written statement. The trial Court felt that as the 1st respondent herein claimed to be having half share in the land along with his brothers, while respondents 2 to 9 got remaining half share in the same property and as O.S.No.56 of 2008 is pending, the 1st respondent herein should be permitted to come on record for proper adjudication in this regard. Accordingly, the trial Court allowed the application. The revision petitioner contends herein that the trial Court committed a manifest illegality in considering the request of the third party claiming interest adverse to the vendor to be impleaded as a party to the suit for specific performance, for which he is neither a necessary party nor a proper party. The petitioner contended that the issues, which arise for consideration and determination of the suit for specific performance, are only whether the agreement of sale is enforceable and whether specific performance can be ordered and no inter se disputes between the vendors and the third parties can be adjudicated and decided in the suit. The revision petitioner contended that in the light of the precedential law from the Apex Court and this Court, the third party could not have been brought on record, more so, in the second round of litigation invented by him. Therefore, the revision petitioner desired that the impugned order be reversed. Sri K. V. Subramanya Narusu, learned counsel for the revision petitioner and Sri J. Rajeswar, learned counsel for the 1st respondent are heard. None entered appearance on behalf of other respondents before this Court. Sri K.V. Subramanya Narusu, learned counsel, firstly referred to the decision reported in Kasturi v. Iyyamperumal and others[1], wherein a Three Judge Bench of the Apex Court has laid down that a third party or a stranger to the contract cannot be added so as to convert a suit of one character into a suit of different character. That was a case where a stranger or a third party to the contract claimed an independent title and possession over contracted property and the Apex Court was considering the scope and ambit of Order I Rule 10 (2) of the Code of Civil Procedure and the Apex Court observed that the tests, which are to be satisfied, are that there must be a right to some relief against such party in respect of the controversies involved in the proceedings and no effective decree can be passed in the absence of such party. The Apex Court also observed that persons, who are not subject to the liabilities, which arise out of the contract, are strangers to the proceedings to enforce the execution of an agreement and hence, laid down that in a suit for specific performance, the issues to be decided being the enforcement of the contract, the execution of the contract, the readiness and willingness to perform his part of contract and the entitlement to a decree for specific performance, persons claiming independent title and possession are not necessary parties. It is, thus, seen that the decision restricted the status of the persons seeking to come on record vis-à-vis the subject property and the subject agreement and the said parties were held to be disentitled to be impleaded against the wishes of the plaintiff. The Apex Court itself observed in para-6 of the judgment with reference to a purchaser of such property that he is a necessary party as he would be affected if he had purchased property with notice of the contract, but a person, who claims adversely to a claim of a vendor, is, however, not a necessary party. The Apex Court in fact elaborated saying that the persons, who are claiming to come on record on the basis of independent title and possession, even assuming they are in possession, have to challenge the title of the vendor and protect their possession by filing a separate suit for title and possession against the vendor and in a suit for specific performance, the questions raised by them or controversies to be decided in favour of them are not relevant. It was with that background that the Apex Court concluded that the trial Court erred in impleading the party without jurisdiction. Sri K.V. Subramanya Narusu, learned counsel also referred to the later decision of the Apex Court in Mumbai International Airport Private Limited v. Regency Convention Centre & Hotels Pvt. Ltd, and others[2], wherein also the Apex Court laid down that if a person is not found to be a proper or necessary party, the Court has no jurisdiction to implead him, against the wishes of the plaintiff and the fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance. The absence of any subsisting right or interest in the suit property for being impleaded as a party was the basis for refusal of the Apex Court to consider the justification for his impleadment. The Apex Court had specifically referred to the decision reported in Kasturi v. Iyyamperumal and others (1st supra) and noted that the Apex Court laid down in the decision 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 and also laid down that 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. The Apex Court found that another decision of the Apex Court, which was claimed to be laying down contrary principles, and the decision in Kasturi v. Iyyamperumal and others (1 supra) are not in fact in conflict and they were dealing with different situations requiring application of different facets of sub-rule (2) of Rule 10 of Order 1. The Apex Court made it clear that every judgment must be governed and qualified by the particular facts of the case in which such expressions are to be found and that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. The Apex Court further cautioned that there is always peril in treating the words of a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. After elaborating the scope and ambit of Order 1 Rule 10 (2) CPC embodying the judicial discretion of the Court to strike out or add parties at any stage of the proceeding, the Apex Court specifically referred to an example similar to the facts on hand in the present revision petition in paragraph-12.4 of its judgment. The Apex Court referred to a co-owner in respect of a property entering into an agreement for sale representing to be having a particular share in the property and another co-owner attempting to come on record claiming the vendor to be having lesser share and not the share claimed while attempting to sell the property. The Apex Court specifically answered with reference to the said illustration that the other co-owner, who is sought to be impleaded as additional defendant, can be impleaded as a proper party and the issue can be examined whether the plaintiff is entitled to specific performance of the agreement in respect of the share claimed by the vendor or the share claimed by the other co-owner of the vendor or the court may refuse to implead the other co- owner and leave open the question in regard to the extent of share of the vendor-defendant to be decided in an independent proceeding by the other co-owner or the plaintiff or alternatively, it may implead the other co-owner without making the dispute between the co-owners the subject matter of the suit for specific performance. Thus, the Apex Court clarified that in such a situation as the present one, the judicial discretion rests with the court to implead or not to implead the proposed party and the Apex Court has laid down the principle that the Court has the “discretion” to either allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances. As such, with reference to the said principles themselves, the appreciation of the question in controversy in the interlocutory petition by the trial Court cannot be considered to be wrong. Though O.S.No.54 of 2002 on the file of Senior Civil Judge, Bhongir, on the instructions of the fifth defendant was stated to have been dismissed on merits 28-12-2007, O.S.No.56 of 2008 filed by the 1st respondent herein for partition impleading the other members of the family is admittedly pending. The relationship between the parties is and cannot be seriously in dispute and the question sought to be raised by the proposed party is the alleged separate possession and enjoyment of the family properties by different members of the family. It was also pleaded that there was partition by metes and bounds and the effect of such possession and enjoyment may also have a bearing on the entitlement of the plaintiff to have a decree for specific performance. The dismissal of O.S.No.54 of 2002 and the pendency of O.S.No.56 of 2008 also may be relevant questions to be considered by the trial Court in the light of the claims made by the 1st respondent of being the representative of the branch of the other brother entitled to half share in the family properties. The claims of the 1st respondent herein cannot, therefore, be said to be beyond the scope of consideration of the entitlement of the plaintiff to the relief of specific performance against respondents 2 to 9 herein in respect of the subject property and if the trial Court has exercised its judicial discretion in favour of impleading the party and allowed the petition, such exercise of judicial discretion does not in any manner appear to be opposed to the principles laid down by the Apex Court in Kasturi v. Iyyamperumal and others (1 supra) as explained by the Apex Court in Mumbai International Airport Private Limited v. Regency Convention Centre & Hotels Pvt. Ltd, and others (2nd supra). The impugned order cannot be considered to be perverse and unreasonable in the restricted exercise of revisional jurisdiction of this Court. The order, therefore, does not appear to be susceptible to any interference, notwithstanding the opposition of the plaintiff to the impleadment of the party and under the circumstances, the revision has to fail. Accordingly, the Civil Revision Petition is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 13-12-2010 Note: L.R. Copies to be marked. B/O Ksn [1] AIR 2005 Supreme Court 2813 [2] 2010 (5) ALD 24 (SC)