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Or.1 rule 10 impleading of a party ?=Basically, it is for the plaintiff in a suit, to identify the parties against whom he has any grievance and to implead them as defendants in the suit filed for necessary relief. He cannot be compelled to face litigation with the persons against whom he has no grievance. Where, however, any third party is likely to suffer any grievance, on account of the outcome of the suit, he shall be entitled to get himself impleaded. The question as to whether an individual is a proper or necessary party to a suit, would depend upon the nature of relief claimed in the suit and the right or interest projected by the persons, who propose to get themselves impleaded. No hard and fast rule can be weighed, that would cover a possible situation in this regard.

THE HON’BLESRI JUSTICE L.NARASIMHA REDDY

English: Hight court of the state of Andhra pr...

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C.R.P.No.716 of 2011

08-07-2011

Pallapu Mohanarao (died) per LRs
..petitioners

And

Thammisetty Subba Rao & others
..Respondents
Counsel for the petitioners: Sri M.R.S. Srinivas

Counsel for respondents :
ORDER:
The 1st respondent filed O.S.No.229 of 2005 in the Court of Principal Senior
Civil Judge, Ongole, against the respondents 2 and 3 for the relief of specific
performance of agreement of sale in respect of the suit schedule property, a
rice mill. Petitioners 2 to 4 are the children, and petitioner No.5 is the wife
of the
2nd respondent, i.e. the 1st defendant. They filed I.A.No.520 of 2008 under
Order 1 Rule 10 C.P.C., with a prayer to implead them as defendants. It is
pleaded that the 2nd respondent herein colluded with the 1st respondent, the
plaintiff, who is none other than his brother-in-law and got filed the suit, to
knock away the joint family property. They also stated that the alleged
agreement of sale is inoperative in law. Reference was made to a decree dated
25-01-2008 in O.S.No.102 of 2007 passed by the Court of Additional Senior Civil
Judge, Ongole, for partition between themselves and the respondents 2 and 3, in
respect of various items, including the suit schedule property in O.S.No.229 of
2005.
The application was opposed by the 1st respondent. He pleaded that the
petitioners are neither proper nor necessary parties and that the application is
filed only with an object of protracting the proceedings. The trial Court
dismissed the I.A., by placing reliance upon the judgment of the Supreme Court
in KASTURI V. IYYAMPERUMAL1.
Sri M.R.S. Srinivas, learned counsel for the petitioners submits that the view
taken by the trial Court is not correct, and that the subsequent judgment of the
Supreme Court in SUMTIBAI v. PARAS FINANCE CO.2 holds good. He contends that it
is only when the proposed party does not have any right or interest whatever,
that an application to get himself impleaded in a suit for specific performance
can be rejected. Learned counsel submits that by virtue of there being
properties of the joint family, and the beneficiaries under a preliminary
decree, passed in O.S.No.229 of 2005, the petitioners are necessary parties.
The notice sent to the 1st respondent was returned with an endorsement that the
addressee refused to receive it. Hence, it is deemed that the notice is
served upon him. The record discloses that the 2nd respondent did not contest
the I.A.
Basically, it is for the plaintiff in a suit, to identify the parties against
whom he has any grievance and to implead them as defendants in the suit filed
for necessary relief. He cannot be compelled to face litigation with the
persons against whom he has no grievance. Where, however, any third party is
likely to suffer any grievance, on account of the outcome of the suit, he shall
be entitled to get himself impleaded. The question as to whether an individual
is a proper or necessary party to a suit, would depend upon the nature of relief
claimed in the suit and the right or interest projected by the persons, who
propose to get themselves impleaded. No hard and fast rule can be weighed, that
would cover a possible situation in this regard.

In KASTURI’S case (1 supra), the Hon’ble Supreme Court was dealing with an
application filed under Order 1 Rule 10 C.P.C., in the suit filed for the relief
of specific performance of an agreement of sale. It was held that unless the
proposed parties have any subsisting rights, their application to get themselves
impleaded cannot be entertained. It was also clarified that, if they specify or
indicate any subsisting right, they can certainly be impleaded. In a subsequent
decision rendered by the Supreme Court in SUBTIBAI’S case (2 supra), the purport
of the judgment in KASTURI’S case (1 supra) was explained. It was mentioned
that mere likelihood of persons acquiring right or interest in the subject-
matter of a suit would be sufficient for the concerned individual to get himself
impleaded.
This Court in INDU BAI AND ANOTHER v. RAJENDRA KUMAR BHANDARI AND ANOTHER3 held
as under:

“…It is true that an individual cannot be subjected to unnecessary litigation
and he cannot be made to answer a person with whom he does not have any privity
of contract or other relation. This principle, however, needs a different
approach, when it comes to the suits for specific performance. Though the
ultimate obligation, in the event of a suit decree for specific performance
being passed, would rest upon the vendor under the agreement, in the context of
recovery of possession or neutralizing the subsequent developments, it becomes
essential to add everyone, who had a right or interest, vis–vis the property,
either as on the date of the agreement of sale, or subsequent thereto”.

Recently, in MUMBAI INTERNATIONAL AIRPORT PVT. LTD. v. REGENCY CONVENTION CENTRE
& HOTELS PVT. LTD. AND OTHERS4, the Supreme Court rendered another judgment. It
was held that as long as the addition of a third party as a defendant does not
widen the scope of the suit, the application can be ordered. The principle was
explained as under:
“Para-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.”

In the instant case, the petitioners pleaded that the mill is the property of
the joint family headed by the 2nd respondent, i.e. the 1st defendant in the
suit, and that a preliminary decree for partition was obtained by them, in
respect of the properties held by the joint family. The 2nd respondent did not
file any counter, disputing the claim made by the petitioners. The allegation
of the petitioners that the 1st respondent is the brother-in-law of the 2nd
respondent and that the suit engineered by both of them in collusion with each
other, to deprive the other members of the joint family of their share, was not
rebutted. It is a matter of record that there exists a preliminary decree, to
which the petitioners, on the one hand, and respondents 2 and 3, on the other
hand, are parties, and the subject-matter of the present suit is one of items
therein. Therefore, the petitioners are proper and necessary parties to the
I.A.
The C.R.P is accordingly allowed, and the order under revision is set aside. As
a result, I.A.No.520 of 2008 is allowed, and the petitioners 2 to 5 shall stand
added as defendants at their proper places in the suit.
There shall be no order as to costs.

_______________________
L. NARASIMHA REDDY, J.
Dt.08-07-2011.

KO
1 AIR 2005 SC 2813
2 AIR 2007 SC 3166
3 2009(5) ALD 402
4 2010 (5) ALD 24 (SC)

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