Smt. B.N. Lakshmamma vs Smt. T.G. Balamma

Mr. P.S. Dinesh Kumar, J.—Though this petition is listed in Preliminary Hearing - ''B'' Group, the same is heard for final disposal.

Issue rule.

This petition is filed challenging dismissal of I.A. No. V under Order 1, Rule 10 read with Section 151 of Civil Procedure Code, 1908 in O.S. No. 1573 of 2008 by the Trial Court.

Petitioner is the plaintiff in the partition suit before the Trial Court. She filed the instant I.A. dated 4-6-2012 to implead proposed defendants, contending inter alia that they were making false claims over the suit schedule property on the strength of a sale deed dated 6-10-2005. The specific case of the petitioner is that she is not a party to the said sale deed ana it is a fabricated one.

The Trial Court has held that the averments in the I.A. are vague; there is a delay of four years in filing the I.A., reckoned from the date of filing the written statement; and that the petitioner is a party to the said sale deed. In the result, the I. A., has been dismissed.

Sri Jayaram K., learned Counsel appearing for the petitioner vehemently contended that the petitioner and her brother B.N. Narayana (husband of first respondent herein) were the only heirs of deceased Narasimhaiah. Both of them had jointly availed loan from the Nehru Nagar Co-operative Bank, Bengaluru, which is evidenced by the mortgage deed produced at Annexure-D and a public notice in the Newspaper issued by the said Bank as per Annexure-E. After death of her brother, petitioner submitted a representation dated 13-12-2007 requesting the BBMP, not to entertain application received from respondents 1 and 2 herein for change of name in municipal records without her consent. She was also diligent in obtaining encumbrance certificates. The encumbrance certificate dated 22-11-2007 and 20-2-2008 did not reflect any transactions. As her request for share in the property was not considered, she was compelled to file the instant suit. No sooner she learnt about false claims of ownership by respondents 3 to 5, than she got filed the instant I.A., to implead them in the suit.

Assailing the correctness of the impugned order, learned Counsel for the petitioner contended that the Trial Court erred in law in dismissing the application. Respondents 1 and 2 namely, the wife and son of the petitioner''s brother have also filed a suit in O.S. No. 1540 of 2006 seeking cancellation of the sale deed alleged to have been executed in favour of the proposed defendants. Though this aspect has been noted, by the Trial Court, the same has not been appreciated in the correct perspective. He further submitted that the petitioner has also instituted criminal proceedings against proposed defendants in C.C. No. 3866 of 2013 on the file of I Additional CMM, Bengaluru by filing a private complaint alleging commission of offences under Sections 465, 467, 468, 471, 417, 419 and 120-B read with Section 34 of Indian Penal Code, 1860. He thus contended that in the facts and circumstances of the case, the proposed defendants are proper and necessary parties and accordingly prayed for allowing this writ petition.

Per contra, learned Counsel appearing for the respondents submitted that the instant application has been filed after a lapse of about four years. Copy of the sale deed at Annexure-H conclusively establishes that the petitioner has attested the sale deed executed by her brother in favour of respondents 3 to 5 as a witness. Having had the knowledge of the sale deed and having received consideration, she cannot he heard to assail the validity of the said sale deed. The suit filed by the petitioner is a frivolous one. Thus, he contended that the respondents 3 to 5 are neither necessary nor proper parties and prayed for dismissal of this petition.

I have given my careful consideration to the submissions of the learned Counsel for the parties and perused the material papers. It is not in dispute that the petitioner and her brother (husband of the first respondent) are heirs of late Narasimhaiah. The documents such as mortgage deed as per Annexure-D and the public notice issued by the Bank as per Annexure-E prima facie suggest that petitioner was exercising rights of joint ownership over the suit schedule property. The suit is one for partition. The respondents 1 and 2 have also filed a suit in O.S. No. 1540 of 2006 seeking cancellation of the sale deed.

In the affidavit filed in support of the instant I.A., the petitioner has categorically stated that the alleged sale deed dated 6-7-2005 is not executed by her and it is a fabricated one. She has precisely stated thus in the affidavit:

"4. I submit that the prima facie, the said document has not been executed for a valuable consideration and the same is fabricated, as in terms of said deed of sale, the proposed defendants claim that the same is witnessed and the executants therein are also identified by me, while I have not witnessed either the execution of the sale deed nor have I identified the executants before the sub-registrar, and the signatures there in the sale deed, purported to be mine, do not belong to me and my signatures are forged and I have been impersonated and the proposed defendants are prima facie, guilty of the various of the offences, in respect of which I reserve my rights to take an appropriate criminal action." (sic)

In a suit, a ''necessary party'' is one in whose absence, no effective decree can be passed and the suit shall be liable to be dismissed; whereas a ''proper party'', though not a necessary party, is a person, whose presence would enable the Court to completely and effectively adjudicate the dispute.

In the instant case, both the petitioners and the legal representatives of her brother have nearly a common grievance. The petitioner''s case is that the sale deed in question is a fabricated one. Respondents 1 and 2 have filed a suit against the proposed defendants for cancellation of the sale deed. Thus, the validity of the said sale deed has been impeached by both the petitioner and the legal representatives of her deceased brother. It is relevant to note that a duly executed sale deed in favour of proposed defendants is in their hands. In the event, the proposed defendants further encumber the suit schedule property by entering into any transactions, the petitioner will be exposed to the risk of multiplicity of proceedings.

While examining power of the Court under Order 1, Rule 10 (2) of CPC, the Hon''ble Supreme Court in the case of Anil Kumar Singh v. Shivnath Mishra alias Gadasa Guru, (1995) 3 SCC 147, has held as follows:

"6. Order 1, Rule 10 (2) postulates that:

"10. (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, ana 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."

By operation of the above quoted rule though the Court may have power to strike out the name of a party improperly joined or add a party either on application or without application of either party, but the condition precedent is that the Court must be satisfied that the presence of the party to be added, would be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit. To bring a person as party-defendant is not a substantive right but one of procedure and the Court has discretion in its proper exercise. The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject-matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid multiplicity of proceedings."

(emphasis supplied)

Therefore, in my considered view, in the facts and circumstances of this case, the Trial Court erred in dismissing the instant application to implead the proposed defendants/respondents 3 to 5. Hence, this petition merits consideration and deserves to be allowed.

In the result, the following:

ORDER

(i) Writ petition is allowed and rule made absolute;

(ii) Order date 2-7-2013 passed by the Trial Court on I.A. No. V in O.S. No. 1573 of 2008 is set aside;

(iii) I.A. No. V is allowed and the petitioner/plaintiff is permitted to bring the proposed defendants/respondents 3 to 5 on record in the suit pending before the Trial Court.

No costs.