S Ashok Kumar, Hyderabad v. Sadalaxmi, Hyderabad And ANR

IN THE HIGH COURT FOR THE STATE OF TELANGANA

AT HYDERABAD IVONDAY, THE FOURTH DAY OF APRIL TWO THOUSAND AND TWENTY TWO PRESENT THE HONOURABLE SRI JUSTICE A.VENKATESHWARA REDDY CIVIL REVISION PETITION Nos. 184 & 193 OF 2014 CRP No. 184 OF 2014 Petition under Article 227 of the Constitution of lndia, against/agg rieved by the Order dated. 21 .11.2013 passed in 1.A.No.243 ol 2013 in A.S.No.159 of 2010 on the file of the Court of the Xl Addl. ChieI Judge, City Civil Court at Hyderabad. Between:

S. Ashok Kumar, S/o Late S. Sadashiva, aged about 49 years occpn. Painter, F/o H.No.13-2-601/9, SRT, CIB Quarters, Raheempura, Puranapul, Hyderabad.

...Petitioner/Petitioner

AND

1. Smt. Sadalaxmi W/o Sri Amar, aged 30 years, Occn. Housewife, R/o H.No.1 3-2-60'1/9, Raheempura, Hyderabad.

2. Smt. Tunk Kalavathi, W/o Sri T. Ramachander, aged 59 years, Occn. Housewife, Flat No.4, "Subhadra Nilayam" ICRISAT Colony, Phase No.ll, Laxmi Nagar, Old Bowenpally, Secunderabad.

... Respondents/Respondents CRPMP. NO: 235 0F 2014 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay of all proceedings in A.S.No.159 of 2010, on the file of the learned Xl Addl. Chief Judge, City Civil Court, Hyderabad, pending disposal of the C.R.P. Counsel for the Petitioner: SRI AADESH VARMA Counsel for the Respondent No.1: SRI ASHOK KUMAR AGARWAL Counsel for the Respondent No.2: SRI SYED YASAR MAMOON

CRP No. 193OF 2014 Petition under Article 227 of lhe Constitution of lndia, against/agg rieved by the Order dated.21 11.2013 passed in l.A. No. 244 ol 2013 in A.S.No. 159 of 2010 on the file of the Court at the Xl Addl. Chief Judge, City Civil Court, at Hyderabad.

Between:

S. Ashok Kumar, S/o late S.Sadashiva aged about 49 years occpn painter Rl/o H.No. 13-2-601lO, SRT, CIB Quarteres, Raheempura, Puranapul, Hyderabad ... Petitioner/Petitioner AND

1. Smt. Sadalaxmi, W/o Sri Amarraged 30 years occpn Housewife, Fl/o H-No. 1 3-2-601 /9, Raheempura, Hyderabad.

2. Smt. Tunk Kalavathi, Wo Sri T.Ramchanderraged 59 years occpn Housewife, Flat no.4," Subhadra Nilayam" ICRISAT Colony, Phase No. ll, Laxmi nagar, Old Bowenpally, Secunderabad.

... Res po n d e nts/Res po nde nts CRPMP. No. 243 OF 2014 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to stay all proceedings in A.S.No. '1 59 of 2010, on the file of the Xl Addl. Chief Judge, City Civil Court at Hyderabad, pending disposal of the CRP.

Counsel for the Petitioner: SRI AADESH VARMA Counsel forthe Respondent No.1: SRI ASHOK KUMAR AGARWAL Counsel for the Respondent No.2: SRI SYED YASAR MAMOON The Court made the following: COMMON ORDER

THE HON'BLE SRI JUSTICE A.VENKATESHWARA REDDY CML REVISION PETITION Nos. 184 & 193 OF 2Ol4 COMMON ORDER:

These two Civil Revision Petitions are arising out of orders in I.A.Nos.2z13 and 244 of 2013 in A.S.No,159 of 2010 on the file of the learned XI Additional Chief Judge, City Civil Court, Hyderabad. Accordingly, it is proposed to dispose of both these CRPs through the common order.

2.

In LA.Nos.243 and 244 of 2013 the proposed party has filed applications under Order I, Rule 10 read with Section 151 of Civil Procedure Code (for short 'CPC') and under Rule 28 of Civil Rules of Practice to implead him as 2"d respondent in the appeal as well as in the Interlocutory Application, pending, along with other consequential amendments. 3.

The first appellate Court had dismissed the said applications filed in LA.Nos.243 and 244 of 2013 with an observation that the petitioner did not respond at right time and noW coming with this petition without any basis at a

AVR.J CRPs 184 &193 2014 Page 2 of '1 0 belated stage in the appeal. There are no merits in the application. Accordingly, the petitions are dismissed. 4.

Feeling aggrieved by the said orders, these two civil revision petitions are filed by the petitioner/ third party alleging that the Court below ought to have considered that the Courts should adopt liberal approach and technical approach is not permitted. purpose and object of Order I, Rule 1O is to allow a proper and necessary party to be impleaded in the case for correct and proper adjudication and to resolve the real question in controversy between the parties but the Court below has failed to appreciate the facts. 5.

Heard learned counsel for the petitioner and respondents.

6.

Perused the record.

7.

Brief facts : The plaintiff has filed O.S.No.1947 of 2008 for ejectment and possession of immovable property and recovery of arrears of rents against the sole defendant Smt.Sadalaxmi. That suit was decreed by the trial Court. Feeling aggrieved by the said judgment and decree, the

AVR,J CRPs_184 & 193_2014 defendant has filed A.S.No.159 of 2010, which is pending on the file of the learned XI Additional Chief Judge, City Civil Court, Hyderabad. While so, the petitioner, who is a third party has filed the present application under Order-I, Rule 10 read with 151 of C.P.C. and aiso under Rule 28 of Civil Rules of Practice.

8.

The main averments of the affidavits, filed in support- of I.A. Nos.243 and 244 of 2013, are that on 15.06.2013 through reliable source, he came to know about the pendency of appeal and on enquiry, he came to know about the facts of the case in respect of premises bearing No.Ex-CIB No.9/SRT House (MCH No.13-2-601/9), admeasuring 54.96 Sq.Yards, situated at Raheempura, Hyderabad and so also about judgment and decree passed in O.S.No.l947 of 2OOB. It is further submitted that the petitioner and his two elder brothers viz. S.Sravan Kumar and S.Vijay Kumar are the only sons and legal heirs of their late father S.Sadashiva, who has purchased the suit schedule property as stated above from A.P.Housing Board. After the death of their father, the petitioner and his brothers have paid

AVR,J CRPs 184 & 193 2014 the rents to the AP Housing Board. Thereafter, his brother Sravan Kumar has gifted the property in favour of his wife Sadalaxmi/ l"t respondent with a malafide intention. The said gift is not binding on him. Accordingly, he filed the suit for partition and separate possession and to declare that gift deed dated 27 .O1.2006 bearing document No.385 of 2006, executed by Sravan Kumar in favour of the 1"t respondent is nuil and void and not binding on the petitioner herein and his brothers. The sait suit in OS No.98O of 2OO9 filed by the petitioner was decreed 30.08.2011. Suit in O.S.No.1947 of 2008 is a collusive one. The said judgment and decree is not binding on the petitioner and that he is necessary and proper party to A.S.No.159 of 2010.

9 .

This application, filed before the trial Court, was resisted by the 2.d respondent, who is a purchaser from the l"r respondent stating that the petitioner has not mentioned about the details of the sale transaction payment and payment of consideration to A.P.Housing Board. Whereas, brother of the petitioner Sravan Kumar was rightful owner of suit schedule property having purchased it from the A.p.Housing

AVR,J CRPs_184 & 193_2014 Board on 27.01.2006 under registered sale deed bearing document No.385 of 2006 and thereafter, he has gifted the property in favour of the 1"t respondent, who is his wife. The petitioner having kept silent all these days now approached the Court and the matter is decided before the trial Court not entitling the petitioner for impleadment in the appeal and stated that he is neither the necessary party nor a proper party to the suit as well as the appeal. As far as the judgment and decree in OS No.9B0 of 2009 is concerned, it is an exparte decree and the plaintiff No.l herein has taken steps to set aside the ex-parte decree. This petition is filed at a belated stage to harass the 1"t respondent, who is a bonafide purchaser. If at all the petitioner has got any right, he may work out the same in OS No.9B0 of 2OO9.

iO. The 1"t respondent also filed a detailed counter denying the petition averments.

11. Point for consideration is :

Whether the orders impugned dated 21.11.2013 in I.A.Nos.243 & 244 of 2073 are sustalnable in law or not ?

AVR,J CRPs_1 84 & 193_201 4

12. Point :

i 3. The claim of the petitioner/ 3rd party is that very recently on 15.06.2O13 he has came to know through reliable source about the dispute in OS No. 1947 of 20Og and the judgment and decree passed thereon and the pendency of A.S.No.159 of 2010 and that he is a necessary and proper party to the proceedings in A.S.No.159 of 2010.

14. It is the further case of the petitioner that he along with his two brothers Sravan Kumar and Vijay Kumar are the only legal heirs of their later father Shiva Kumar, who purchased the suit schedule property from Ap Housing Board and that even after the death of their father, they have paid the instalment amount. It is also stated that, in the order impugned, the learned first appellate judge has clearly mentioned that no oral or documentar5z evidence is adduced during enquir5.in I.A.Nos.243 & 244 of 2013 except filing the affidavit along with the petition.

15. Though it is stated by the petitioner that he has obtained decree in OS No.9B0 of 2009 on 30.08.2011, it is clearly averred in the counter filed by the 2",r respondent that

AVR,J CRPs 184 & 193 2014 she is taking steps to set aside the ex-parte decree and she is contesting the matter before the trial Court' Further, it is the case of the 2"d respondent that she has purchased the suit schedule property from Sravan Kumar, who is the brother of the petitioner herein. It is further stated that the Sravan Kumar has purchased the suit schedule property through a registered sale deed dated 27'O1,.2006 vide document bearing No.3B5 of 2006 from the Housing Board and thereafter executed a gift deed in favour of his wife i.e' the 1"t respondent in the year 20O6 itself. Accordingly, the 2"a respondent has purchased it from the wife of Sravan Kumar, who is the l"t respondent and that the petitioner/3'a party is not concerned with the suit.

16. Order-I, Rule 10 of CPC enables the Court to add any person as a part at any stage of the proceedings if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate the upon and settle a,11 the questions involved in the suit. Avoidance of the multiplicity of proceedings is also one of the objects of the said provision.

AVR.J CRPS 184 & 193 2014

17. Be it stated that here in the instant case, the petitioner dicl not raise any objection when the suit was pending before the trial Court. He remained silent throughout and filed the present application 1n the Appeal Suit. The Appellate Court has held that the petitioner has slept over his right for about six years without objecting execution of the gift deed and now he has come up with the petition at a belated stage in the appeal. He has not come with clean hands to the Court and that without filing any scrap of paper in proof of his contention, he is not entitled to be impleaded in the proceedings in the Appeal Suit. He is neither necessary party nor proper pa-rty for effectual adjudication of the matter in the dispute

18. The case of the 2.a respondent is that the subject property was purchased by the husband of the 1"t respondent viz. Sravan Kumar from AP Housing Board through a registered sale deed in the year 2006 and thereafter, he has executed a gift deed in favour of his wife 1"t respondent, who in turn executed a sale deed in favour of the second respondent. Therefore, viewed from any angle, claim of the

r'

/ AVR.J CRPS 184 & 193 20'14 petitioner that his late father has purchased the schedule property from AP Housing Board and that all the three brothers are having equal share in it and the husband of the lst respondent clandestinely obtained sale deed behind back of other brothers and executed gift deed in favour of his wife cannot be accepted at this stage. The petitioner has not even filed the alleged judgment and decree in OS No'980 of 2009, which is a suit for partition.

19. What is required in an application under Order-I, ) Rule 10 of CPC is that the presence of such party is essential .t t for the Court to effectively adjudicate the matter in dispute. Further, the plaintiffs, being dominus litis, cannot be compelled to add a party against the wishs of the plaintiff.

20. That being the 1egal position, I do not find any jurisdictional error committed by the appellate Court in dismissing the applications in I.A.Nos.243 atd 244 of 2013 in A.S.No.159 of 20 10. In such facts and circumstances of the case, I do not find any reason to interfere with the findings recorded by the Court below and the orders impugned passed in LA.Nos.243 and 244 of 2Ol3 in As No.159 of 2010 does not

AVR.J CRPs 184 & 193 2014 Page 10 of 1 0 warrant any interference of this Court and they are sustainable.

21. In the result, CRP Nos. 184 of 20L4 and 193 of 2074 ate dismissed confirming the orders impugned 1n I.A.Nos.243 and 244 of 2013 in A.S.No.159 of 20 10, on the file of the XI Additional Chief Judge, City Civil Court, Hyderabad. In the circumstances of the case, there shall be no order as to the costs. Consequent thereto, miscellaneous petitions, if any, pending, in these CRPs, sha11 stand closed.

I \ SD/-T.KRISHNA KUMAR ASSISTANT REG TRAR //TRUE COPY// SEC FFICER To, The Xl Additional Chief Judge, City Civil Court at Hyderabad One CC to Sri Aadesh Varma, Advocate [OPUC] One CC to Sri Ashok Kumar Agaruual, Advocate tOpUCl One CC to Sri Syed Yasar Mamoon, Advocate IOPUCI Two CD Copies One Spare Copy I J b GJ L

HIGH COURT DATED:0410412022 1+ ?:, itjt'l 2[22 COMMON ORDER : '-'

CRP.Nos.184 & 193 of 2014 DISMISSING THE BOTH CRPs.

WITHOUT COSTS.

tPt tot Dl,