* THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY + Civil Revision Petition No.1926 of 2011 % 30-08-2011 # 1.Mitta Sanjeeva Reddy & Anr. ….Petitioners and 1.Shaik Fakruddin & Anr. ….Respondents ! COUNSEL FOR PETITIONERS: MR.V.R. REDDY KOVVURI ^COUNSEL FOR RESPONDENTS: MR.L.J.VEERA REDDY < Gist: > Head Note: ? CITATIONS: 1) (2007) 10 SCC 82 2) 2010 (2) ALD 725 3) 2010 (4) ALD 490 4) 2011 (4) ALT 335 5) (2005) 6 SCC 733 6) 2003 (9) SCALE 393 7) AIR 2010 SC 3109 8) (2004) 8 SCC 579 = AIR 2004 SC 4778 9) (1987) 1 SCC 213 10) (2003) 2 SCC 111 THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.1926 of 2011 Date:30th August, 2011 Between: 1. Mitta Sanjeeva Reddy & Anr. ….Petitioners and 1.Shaik Fakruddin & Anr. .…Respondents *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.1926 of 2011 ORDER: This Civil Revision Petition is directed against the order, dated 28.02.2011, passed in I.A.No.942 of 2010 in O.S.No.8 of 2010 on the file of V Additional District Judge, Rayachoty, dismissing the petition for impleadment of the petitioners as defendants 2 and 3 in the suit. 2. a) Shaik Fakruddin-1st respondent herein is the plaintiff and Kondakkagari Nagulamma-2nd respondent herein is the sole defendant in O.S.No.8 of 2010 on the file of V Additional District Judge, Rayachoty. The plaintiff filed the suit against the defendant for specific performance of agreement of sale, dated 21.05.2010, in respect of the suit schedule property. According to the plaintiff, the defendant offered to sell the suit schedule property for Rs.40,00,000/- and received an advance amount of Rs.10,000/-. The defendant agreed to receive the balance sale consideration of Rs.39,90,000/- on or before 30.08.2010 and execute a registered sale deed in favour of the plaintiff. Since the defendant refused to receive the balance sale consideration offered by the plaintiff and to execute a registered sale deed, the plaintiff filed the suit for specific performance. The reliefs sought for by the plaintiff in the suit read as hereunder: “It is therefore prayed that the Hon’ble Court may be pleased: (a) to pass a decree and judgment in favour of the plaintiff, directing the defendant to execute a regular sale deed in favour of the plaintiff after receiving the balance of sale consideration of Rs.39,90,000-00 from the plaintiff in respect of the suit schedule property within a time fixed by the court, failing which the Hon’ble Court may execute such a regular sale deed on behalf of the defendant in favour of the plaintiff. (b) to direct the defendant to pay the costs of the suit; [c] to pass such other relief or reliefs, as the Hon’ble Court deems fit and proper under the circumstances of the suit.” Pending the suit, the petitioners herein viz., Mitta Sanjeeva Reddy and Mitta Veera Nagireddy filed I.A.No.942 of 2010 seeking their impleadment as defendants 2 and 3 in the suit. The case of the petitioners as set out in the affidavit filed in support of I.A. No.942 of 2010 is that the sole defendant in the suit has no right over the suit schedule property to execute an agreement of sale, dated 21.05.2010, in favour of the plaintiff. The suit agreement is not true, valid and genuine. Notices have been exchanged between the sole defendant and the petitioners. Para.3 of the affidavit filed in support of the impleadment petition needs to be noted and it is thus: “3. I humbly beg to submit that when remours were spread out at the suit village about the intended mischievous actions of the sole defendant K.Nagulamma W/o.Manga Reddy, resident of Kondakkagaripalli of Gurramkonda (PO) and Mandal about her threat of interference and alleged alienations, myself, the 2nd petitioner herein and two others got made paper publication in Eenadu daily of Kadapa District Edition, Rayachoty zone on 24.8.2010 with true and correct facts, appraising the public of our absolute rights and title over the suit properties herein along with other properties and requested the general public not to enter into any transactions or documents with the defendant. The said paper publication dated 24.8.2010 is filed herewith which may kindly be read as part and parcel of this affidavit for all purposes. The contents of the said paper publication dated 24.8.2010 were to the full knowledge of the plaintiff and the defendant herein. They cannot dis-own the contents of them. The sole defendant herein got made a reply publication in the same paper on 1.9.2010 through her counsel Sri N.S.N.Prasad, Advocate, Madanapalli with all false, mischievous and baseless allegations. For the kind perusal of this Hon’ble Court, the said reply publication dated 1.9.2010 is filed, may kindly be perused for appreciation of the facts. It is not out of context to submit here that in the above reply paper publication, dated 1.9.2010, the defendant herewith has asserted that she never made any alienations or intended to make any alienations as apprehended by me and my brother in our paper publication dated 24.8.2010. But quite surprisingly and against the contents of the reply paper publication dated 1.9.2010, the defendant and the plaintiff colluded together actively, brought into existence the alleged suit document dated 21.5.2010 for the plaint schedule properties with all false, fake and imaginary recitals so as to endanger our valuable proprietary rights over the suit properties by hook or crook. To judge the genuineness of the suit agreement, dated 21.5.2010 and its falsity, the tone of reply paper publication dated 1.9.2010 is sufficient and that the same is not enforceable under any circumstances whatsoever presented by the plaintiff herein. The defendant is hand in glove with the plaintiff, in bringing into existence of the alleged suit agreement, dated 21.5.2010 for the alleged sum of Rs.40,00,000/- filing of the said suit for the alleged relief of enforcement of the suit agreement, dated 21.5.2010 and issuance of the alleged lawyer’s notice, dated 23.8.2010. These are all staged managed and highly manipulated deeds of the plaintiff and the defendant together cunningly, so as to impair our legal rights over the plaint schedule properties having known the contents of our paper publication dated 24.8.2010 under those circumstances besides other, the plaintiff is not the vendee under the suit agreement, dt.21.5.2010 and the defendant cannot boast herself of the status of a vendor there under, in view of the clear and categorical denial of their rights already in the earlier paper publication, dated 24.8.2010. The question of therefore enforcement of such an agreement, dt.21.5.2010 does not arise at all and these proceedings are being taken out and conducted by the plaintiff under a mask, behind us.” b) The plaintiff as well as the sole defendant filed counters resisting the application filed by the petitioners seeking their impleadment, as defendants 2 and 3 in the suit. c) The sole defendant denied the execution of the agreement of sale in favour of the plaintiff. However, both the plaintiff and the sole defendant, resisted the impleadment petition on the ground that the proposed parties are not proper and necessary parties to the suit for specific performance of agreement of sale, dated 21.5.2010 and their impleadement, as party defendants, changes the nature of the suit. d) The trial Court, on considering the material brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the proposed parties are strangers and therefore, they are not necessary and proper parties to the suit for specific performance and thereby proceeded to dismiss the application, by order dated 28.02.2011. The said order is assailed in this revision. 3. Notice before admission came to be ordered on 10.06.2011. The respondents entered appearance through their respective counsel. 4. Heard learned counsel appearing for the parties. 5. Learned counsel appearing for the petitioners submits that the petitioners are the absolute owners and possessors of the property covered by the agreement of sale, allegedly executed by the 2nd respondent herein, and as their rights over the property are likely to be affected in the event of the suit being decreed, they are necessary and proper parties to the suit for specific performance. A further submission has been made that the suit for specific performance is a collusive suit to defeat the rights of the petitioners and that the 2nd respondent, who allegedly executed agreement of sale in favour of the 1st respondent, has no title or possession over the suit schedule property. Since the petitioners have a fair and semblance of title and interest over the suit schedule property, the application filed by them seeking their impleadment deserves to be allowed. In support of his submissions, reliance has been placed on the judgment of the Supreme Court in Sumtibai v. Paras Finance Co.[1] and judgments of this Court in Lekkala China Masthan Naidu & Ors. v. Meda Sarvani & Anr.[2]; Basant Kumar Soni v. Mukund Das Soni & Ors.[3] a n d Kiran Krishna Real Estate & Constructions Private Limited v. Siddipeta Ranga Reddy[4]. 6. Per contra, learned counsel appearing for the 1st respondent/plaintiff submits that the petitioners are claiming title adverse to the 2nd respondent-sole defendant, in which case, they have to seek a remedy by way of independent suit and the internal disputes between the petitioners on the one hand and the 2nd respondent-sole defendant on the other hand, cannot be subject matter of the specific performance suit filed by the 1st respondent-plaintiff against the 2nd respondent-sole defendant basing on the agreement of sale, dated 21.05.2010. If the petitioners are allowed to come on record as party defendants, the nature of the suit changes to title suit and therefore, the trial Court is justified in dismissing the impleadment petition and it is impressible for this Court to interfere with the order impugned in the revision in exercise of powers under Article 227 of the Constitution of India. In support of his submissions, reliance has been placed on the decisions of the Supreme Court in Kasturi v. Iyyamperumal[5]; Bibi Zubaida Khatoon v. N.H.Saheb[6] a n d Mumbai International Airport Pvt. Ltd. v. R.C. Centre & Hotels Pvt. Ltd.[7]. 7. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I, Rule 10(2) of Civil Procedure Code, which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below: “(2) Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either 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. The said provision makes it clear that a court may, at any stage of the proceedings, either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the question involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party. A 'necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a 'necessary party' is not impleaded, the suit itself is liable to be dismissed. A 'proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. 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. 8. In Bibi Zubaida Khatoon’s case (6 supra), the transferee pending lit sought her impleadment in the suit. The trial Court having taken note of the long pendency of the suit, and the party being a transferee pending lit without leave of the Court in a long pending suit, proceeded to dismiss the application. The order of dismissal came to be confirmed by the High Court of Patna, by order, dated 28.07.1997. Aggrieved by the order of the High Court of Patna, the proposed party filed appeals before the Supreme Court. The Supreme Court held that a purchaser of the suit property pending lit cannot be considered either necessary or proper party to the suit. 9. A three Judge Bench of the Supreme Court in Kasturi’s case (5 supra) has held that a person who claims independent title and possession adverse to the title of vendor is not a necessary party in suit for specific performance. The material facts in the cited case are: The appellant therein filed a suit against the respondents 2 and 3 for specific performance of contract, entered into between the second respondent acting as a power of attorney of the third respondent on one hand and the appellant on the other for sale of the contracted property. In the said suit for specific performance of contract for sale, respondents 1 and 4 to 11, who were admittedly not parties to the contract and setting up a claim of independent title and possession over the contracted property, filed an application to get themselves added in the suit as defendants. The trial Court allowed the application on the ground that as respondents 1 and 4 to 11 were claiming title and possession of the contracted property, they must be held to have a direct interest in the subject matter of the suit, and therefore, entitled to be added as party defendants in the suit. The High Court of Madras in revision confirmed the said order and thereupon, the plaintiff carried the matter to the Supreme Court. The Supreme Court considered the scope of sub-rule (2) of Rule 10 of Order I CPC and held that strangers to the contract making claim independent and adverse to the title of the executant of the agreement, are neither necessary nor proper parties and therefore, they are not entitled to join as defendants in a suit for specific performance of contract of sale. 10. In Sumtibai’s case (1 supra), the Supreme Court considered the judgment in Kasturi’s case (5 supra) and observed that Kasturi’s case can only be understood to mean a third party cannot be impleaded in a suit for specific performance if he has no semblance of title or interest in the property in dispute. The material facts in the cited case are: M/s.Paras Finance Co. filed a suit against Kapoor Chand for specific performance of a contract of sale. It was alleged that the Kapoor Chand had entered into an agreement to sell the property in dispute to M/s.Paras Finance Co. In that agreement, Kappor Chand stated that the property in dispute was his self-acquired property. During the pendency of the suit, Kapoor Chand died and his wife, sons, etc. applied to be brought on record as legal representatives. After they were impleaded they filed an application under Order 22, Rule 4(2) r/w. Order 1, Rule 10 CPC praying that they should be permitted to file additional written statement and also be allowed to take such pleas which are available to them. The trial Court rejected their application, against which a revision was filed by them, which was also dismissed by the High Court. Hence, they approached the Supreme Court. The Supreme Court noticed that the shop in dispute has been purchased under a registered sale deed, dated 12.08.1960 by Kapoor Chand and his sons viz., Narainlal, Devilal and Pukhraj, since the registered sale deed itself shows that the purchaser was not Kapoor Chand alone, but also his sons as co-owners. In those set of facts, the Supreme Court observed that the proposed parties showed a fair semblance of title or interest and therefore, they can certainly file an application for impleadment. 11. In Mumbai International Airport Pvt. Ltd.’s case (7 supra) the Supreme Court considered the decision rendered in Kasturi’s case (5 supra) and Sumtibai’s case (1 supra) and held as hereunder: “12.4. If an application is made by a plaintiff for impleading someone as a proper party, subject to limitation, bona fides etc., the court will normally implead him, if he is found to be a proper party. On the other hand, if a non-party makes an application seeking impleadment as a proper party and court finds him to be a proper party, the court may direct his addition as a defendant; but if the court finds that his addition will alter the nature of the suit or introduce a new cause of action, it may dismiss the application even if he is found to be a proper party, if it does not want to widen the scope of the specific performance suit; or the court may direct such applicant to be impleaded as a proper party, either unconditionally or subject to terms. For example, if 'D' claiming to be a co-owner of a suit property, enters into an agreement for sale of his share in favour of 'P' representing that he is the co-owner with half share, and 'P' files a suit for specific performance of the said agreement of sale in respect of the undivided half share, the court may permit the other co-owner who contends that 'D' has only one-fourth share, to be impleaded as an additional defendant as a proper party, and may examine the issue whether the plaintiff is entitled to specific performance of the agreement in respect of half a share or only one-fourth share; alternatively 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; alternatively the court may implead him but subject to the term that the dispute, if any, between the impleaded co-owner and the original defendant in regard to the extent of the share will not be the subject matter of the suit for specific performance, and that it will decide in the suit, only the issues relating to specific performance, that is whether the defendant executed the agreement/contract and whether such contract should be specifically enforced. In other words, the court has the discretion to either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party. 13. If the principles relating to impleadment, are kept in view, then the purported divergence in the two decisions will be found to be non- existent. The observations in Kasturi and Sumtibai are with reference to the facts and circumstances of the respective case. In Kasturi, this Court held that in suits for specific performance, only the parties to the contract or any legal representative of a party to the contract, or a transferee from a party to the contract are necessary parties. In Sumtibai, this Court held that a person having semblance of a title can be considered as a proper party. Sumtibai did not lay down any proposition that anyone claiming to have any semblance of title is a necessary party. Nor did Kasturi lay down that no one, other than the parties to the contract and their legal representatives/transferees, can be impleaded even as a proper party.” 12. I n Lekkala China Masthan Naidu & Ors.’s case (2 supra) the proposed parties had already filed a suit for specific performance. The subject matter in both the suits is one and the same. Keeping this aspect in view, a learned Single Judge of this Court refused to interfere with the order of the trial Court allowing the impleadment petition. 13. In Basant Kumar Soni’s case (3 supra) a learned Single Judge of this Court was dealing with a situation where the subject matter in the suit filed by the proposed parties and in the other suit is one and the same. For better appreciation, I may refer para.7 of the judgment, which reads as hereunder: “The petitioner herein filed suit in OS No.47 of 2009 basing on an agreement of sale, dated 19.12.2008 which was executed by the respondents 2 and 3 herein represented by their GPA 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.4 and 10 out of the apartment Chandra Towers in Sy.No.313 Part, Rajampet, Sangareddy, Medak District. Whereas the 1st respondent herein (Mukund Das Soni) filed suit OS No.58 of 2009 against the respondents 2 and 3 herein and their GPA holder basing on the agreement of sale, dated 14.2.2008 in respect of 14 flats in third floor and Shop Nos.4 and 10 in ground floor of Chandra Towers, situated at Ward No.3, Block No.5, Rajampet, Sangareddy Town, Medak District. A categorical finding has been recorded by the trial Court that the suit schedule property in OS No.47 of 2009 and in OS No.58 of 2009 on the file of the Principal District Judge, Medak at Sangareddy is one and the same and the parties in both the suits are one and the same. The petitioner herein wanted to come on record as 3rd defendant in the suit filed by the 1st respondent herein against the respondents 2 and 3 who are the defendants in that suit.” 14. In Kiran Krishna Real Estate & Constructions Pvt. Ltd.’s case (4 supra), the proposed party is a subsequent purchaser. The material facts in the said case are: The proposed parties are the co-owners. They sought to come on record in a suit for specific performance on the ground that the defendants therein sold the lands beyond their shares. For better appreciation, I may refer para.2 of the cited judgment and it reads as hereunder: “2. 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