Varanasi Madhava Rao vs Narayansetti Govind Rajulu and others

This revision petition is directed against the order of the Principal Junior Civil Judge, Srikakulam dated 10-2-1999 passed in IA No.7 of 1999 in OS No.113 of 1992 dismissing the application filed by the third respondent under Order 1 Rule 10 of CPC for impleading him as a co-plaintiff.

Respondent No.1 herein is the plaintiff in the suit and respondents 2 and 3 are the defendants in the suit.

The petitioner herein filed the said IA No.7 of 1999 for impleading him as a co-plaintiff in the suit on the ground that during the pendency of the suit his father had purchased a part of the property which is the subject-matter of the suit and later he acquired title to that property under a will executed by the said purchaser. The plaintiff-respondent No.1 opposed the petition stating that the petition has been filed at a belated stage to drag on the proceedings. However, the fact of his sale of part of the suit property in favour of the third party is admitted by the petitioner''s father.

Respondent No.2 herein (defendant No.1 in the suit) filed a counter opposing the petition and denied all the averments in the petition. Defendant No.2 filed a memo adopting the said counter. It was further stated by defendant No.2 in the counter that while the suit was pending, the petitioner''s father approached him as to title to the property and he was informed that it belongs to their family and thereafter the petitioner''s father purchased it.

The Principal Junior Civil Judge dismissed the petition mainly on two grounds. Firstly, inspite of the knowledge of pendency of the suit, the petitioner''s father purchased the property in 1996 under a registered sale deed which is said to have been executed on 2-9-1997 but the petitioner filed the present petition after a long lapse in 1999 and hence the petition was dismissed as having been filed belatedly. The other ground mentioned is that the petitioner had not filed any petition for consequential amendment as contemplated under Rule 28 of CRP.

The question for consideration is whether the order of the learned Junior Judge refusing to implead the petitioner as a plaintiff can be sustained under the facts and circumstances of the case?

The learned Counsel for the petitioner contends that as a third party purchaser of the part of the suit property, the petitioner has subsisting interest in the suit property and as such he is entitled to be impleaded as a party plaintiff to the suit. The learned Counsel for the respondents on the other hand contends that a purchaser of the suit property during the pendency of the suit is bound by the decree passed in the suit and there is no need for impleading him as a party-plaintiff to the suit.

It is true that a purchaser who purchased the property during the pendency of the suit is bound by the decree in the suit and such purchaser cannot be considered as a necessary party to the suit. But, he certainly can be considered as a proper party to the suit. This is particularly so when he comes up with a plea that the plaintiff and the defendant had colluded to harm his interest. It is seen that in the affidavit filed by the petitioner before the trial Court in support of the petition for impleading, there is an averment that the plaintiff and the defendant had colluded Jo cause loss to the petitioner. Under these circumstances, the petitioner ought to have been impteaded as a party.

In the case of Adapa Venkateswra Rao and another Vs. Mohammad Suleman and others, , this Court held that in a suit for specific performance of contract of sale, purchasers of the suit property pending suit have interest in it can be impleaded as a party. In that case, the third party petitioners averred that defendants 4 and 5 from whom ihey have purchased the property in question during the pendency of the suit were not evincing interest in prosecuting the case and under these circumstances to shorten the litigation and to avoid multiplicity of the proceedings, petition under Order 1 Rule 10 of CPC was directed to be allowed.

As stated above, in this case, there is a specific averment on behalf of the petitioner herein that the plaintiff and the defendants in the suit colluded to harm his interest. Under these circumstances, the petitioner must be deemed to be a necessary party. Failure to implcad him would lead to multiplicity of litigation. Under these circumstances, to avoid multiplicity of suits and to give finality to the litigation, the presence of the petitioner as a party to the suit is necessary. The learned Junior Civil Judge has not even referred to this allegation in the affidavit of the petitioner as to collusion between the petitioner and the defendant.

Under the circumstances, the dismissal of the petition on the ground that it was filed belatedly and for not asking for consequential amendment is not proper.

The other ground for refusing or rejecting the petition is technical in nature, namely, non-compliance of Rule 28 of CRP. It is doubtful whether this rule applies to petitions for impleading. At any rate, it cannot be a ground for rejecting this petition.

However, as the present plaintiff is objecting to the impleading of the petitioner herein, he cannot be impleaded as a plaintiff. He shall be impleaded as a defendant for the present. At later stage, it is for the trial Court after the trial is proceeded with to consider if it is necessary to transpose the petitioner as plaintiff and the present plaintiff as defendant depending on the circumstances of the case.

The orders under revision is set aside and this petition is allowed accordingly. No costs.