P. Prakash vs Khateeb Ahmed and Others

Ram Mohan Reddy, J.

Plaintiff in O.S. No. 25770/2009 aggrieved by the order dated 21.11.2014 allowing 4th respondent''s I.A. under Order 1 Rule 10(2) CPC to be impleaded as proposed defendant No. 4 has presented this petition.

In the suit instituted by the petitioner for (i) declaration of title to immovable property and (ii) possession, respondents-1, 2 and 3 arraigned as defendants, it is claimed that petitioner is the absolute owner of the immovable property being shop premises No. 6, Silver Jubilee Park Road, Bangalore-2 measuring East-West 16 1/2 feet, North to South 72 feet, bounded on the East by Private property, West by Shop No. 5 belonging to the plaintiff where business of Naidu Military Hotel, North by private property and; South by Silver Jubilee Park Road.

That suit is opposed by filing written statement of 3rd defendant inter alia denying the plaint assertions including title to the suit schedule property. At paragraph-5 of the written statement, defendant No. 3 asserted that suit schedule property is in the occupation of a tenant who is running a hotel and that the hotel business allegedly carried at Shop No. 5 is a distorted version since that shop is in the occupation of the 1st defendant in the name and style of "Prestige Ceramics" who is not a tenant under the plaintiff According to the said defendant, No. 6 is not correct. Defendant No. 3 claims to be absolute owner and in constructive possession of the suit schedule property having acquired the same from his mother Smt. Gowramma under a registered testament dated 2.9.1985, in the occupation of a tenant by name Sri Sunder, who is none other than the son of one Govindarajulu Naidu. It is further asserted that eviction case HRC 2105/1994 filed against tenant Sunder was allowed by order dated 21.3.1995. At paragraph-9, it is the specific plea of defendant No. 3 that 1st defendant is in occupation of property No. 5 while at paragraph 11 it is stated that the plaintiff has incorrectly claimed shop No. 5 to be on the west of the suit property.

Issues when framed and on conclusion of the trial, though posted for judgment on two occasions, nevertheless, at the instance of respondents-1 to 3 was reopened and permission extended for adducing evidence. At this stage, petitioner filed Writ Petition No. 19044/2014, whence, a learned single Judge, by order dated 28th April 2014, directed the Court below to conclude the proceeding by end of December 2014.

On 7.11.2014, 4th respondent filed LA under Order 1 Rule 10 (2) CPC to be impleaded as defendant No. 4 is a proper and necessary party, for a complete adjudication of all issues and disputes involved in the suit and to avoid future legal complications in respect of suit schedule property. In the application accompanying the affidavit, the 4th respondent stated that he was the absolute owner in possession and enjoyment of shop premises No. 13/5/101, measuring East to West on its southern side 15 feet and northern side, 18 feet and North to south on eastern side 57.6 feet and on western side 59 feet together with 2 square old building constructed about 69 years ago, constructed with mud wall with stone slab roofing with support of ''Iron Garanda'' with ''calcium gaare'' together with electricity, water and sanitary connection, located on 1st Main, SJP Road, Bangalore-2, purchased through 3rd defendant on 10.2.1994 under a sale deed registered on 11.5.1994. The deponent states that he was a practicising lawyer at Mulabagal Town and other Mofusil courts at Kolar District and it is only, with a view to safeguard his interest in respect of the aforesaid property he executed a "notarised S.P.A." on 6.11.2014. At paragraph-3 of the affidavit, it is stated that 3rd defendant is the absolute owner of the shop premises No. 13/5/101. At paragraph-4 it is stated that 1st defendant and his father were in possession of the aforesaid property as tenants under 3rd defendant running business in the name and style of ''A to Z Tubes and Products'' and there afterwards, the said 1st defendant and his father, continued as tenants under the applicant/proposed defendant and changed the name and style of his business as M/s. Prestige Ceramics and is regularly paying rents to the applicant.

That application was opposed by filing statement of objections of the plaintiff, asserting at paragraph 4 that in Ex. No. 2464/2000 filed by 3rd defendant seeking execution of judgment and decree against one Sunder, on the premise, that 3rd defendant is the absolute owner of the suit schedule property. Plaintiff entered appearance as objector by filing I.A. No. 1 under Order 1 Rule 21 CPC claiming title through his father one Sanjeeva Raidu who purchased the suit schedule property under sale deed dated 27.1.1947, whereafter, partition took place in the family of Sri Sanjeeva Raidu and property bearing 5 and 6 fell to the share of the plaintiff-objector. That application was allowed by order dated 21.12.2005 which has since become final and binding. It is in this context, it was stated that impleading applicant was neither a necessary nor proper party to the proceedings.

The Court below having observed the aforesaid averments in the application and the statement of objections and the description of the suit schedule property coupled with the sale deed dated 10.2.1994 relied upon by the impleading applicant, further observed that defendant No. 3 the decree holder in Ex. 2464/2000 did not contest the application under Order 21 Rule 97 filed by the plaintiff, which was allowed and the execution dismissed. Having said so, the Court below came to the conclusion that since the impleading applicant was not a party to Ex. 2464/2000 the order was not binding upon him; that "it appears that property are one and the same"; the proposed party having contended that the purchasers of the suit schedule property under registered sale deed from defendant No. 3, held, was a necessary party to the proceedings.

Sri S. Sreevatsa, learned Senior counsel for the petitioner submitted that petitioner is the dominus litus entitled to arraign as party defendant such of those persons against whom declaration of title and possession are sought and therefore, the decree that may be passed in the suit would only bind such of those parties in the suit. In this context, it is submitted that the 4th respondent is neither a necessary nor proper party to the proceeding as he could maintain a separate suit for declaration of title to the property No. 13/5/101, since admittedly, the suit schedule property bears No. 6. In addition, it is submitted that defendant No. 3 in the written statement nowhere pleaded that the suit schedule property is in fact, property No. 13/5/101 and is conveyed in favour of the 4th respondent and on that score too, the 4th respondent is not a necessary and proper party. Yet again, the submission of learned Senior Counsel is that since the boundaries to the properties in the suit schedule as well as in the sale deed relied upon by respondent No. 4 do not tally and the property numbers are not identical, boundaries being not identical, the trial Court was not justified in recording a finding that the properties appear to be one and the same. Learned counsel hastens to add that on mere assumptions, parties cannot be impleaded as necessary and proper parties.

Although, learned counsel for 4th respondent seeks to sustain the order impugned as well-merited, fully justified and not calling for interference, suffice it to state that the order bristles with infirmities, recording perverse findings calling for interference. Under Order 1 Rule 10(2) CPC, a person may be impleaded as party to the suit, if he ought to have been joined as plaintiff or defendant, and is not so joined, and without his presence the question involved in the suit cannot be effectually decided. Persons are not to be impleaded as defendants merely because they may be incidentally affected by the judgment. This is the well established principle of law relating to impleadment of parties.

It is well settled that plaintiff being dominus litus 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 The person to be joined must be one whose presence is necessary as party. 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. Intervenor must be directly and legally interested in the answers to the questions involved in the case. 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 affects him legally, that is, by curtailing his legal rights.

In the facts and circumstances, the petitioner apparently has nothing to do with the property bearing No. 13/5/1001 with the boundaries set out in the alleged sale deed relied upon by respondent No. 4. Therefore, the question as to whether sale deed executed by defendant No. 3 in favour of defendant No. 4 in respect of property No. 13/5/101, is legal and valid and does not call for adjudication in the suit. While the questions involved in the present suit are entirely different from the questions arising out of the claims put-forth by 4th respondent. The cause of action involved in the suit is entirely different from the one that may arise in respect of sale deed propounded by respondent No. 4 and therefore, impleading him as party defendant No. 4 would widen the scope of adjudication in the suit.

Learned counsel for respondent No. 4 submits that respondent No. 4 is in possession of the suit schedule property. If he is in possession, he may protect his possession in accordance with law and not in the present suit by impleading himself as necessary and proper defendant.

In the result, this petition is allowed. The Order dated 21.11.2014 is quashed. I.A. filed under Order 1 Rule 10(2) CPC is rejected. Sequentially, the amendment to the plaint and the application of the 4th respondent stand deleted. The written statement stands rejected. The 2nd defendant to conclude the cross-examination of PW.1 on 24.3.2015.

The trial Court is directed to list the matter on 25th and 26th for recording the testimony of witnesses for defendant to be cross-examined on the same date and post for hearing arguments on merit of the suit on 27th March and conclude the proceeding by 31st March 2015. If the defendants do not comply with this order, it is needless to state that the defendants will be disentitled to adduce evidence of any of the witnesses, and if such is the conduct of the defendants, the trial Court shall impose extraordinary cost.