Smt.M.Mamatha v. Mrs.Alka Jhunjhunwala
132181
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD MONDAY ,THE TWENTIETH DAY OF FEBRUARY TWO THOUSAND AND TWENTY THREE PRESENT THE HONOURABLE SRI JUSTICE A.VENKATESHWARA REDDY Civil Revision Petition under Article 227 of the Constitution of lndia, against the Order and Decreetal order Dt.1610912022 passed in 1.A.650 of 2022 in O.S.No.111 of 2016, on the file of the Court of the XXVII Addl. Chief Judge, City Civil Court, At. Secunderabad Between:
SmI.M.MAMATHA, wife of M.Gopi Krishna, aged about 41 years, Occ : Business, Resident of 1-5-8, Dhanbazar, General Bazar, Secunderabad, T.S. ...REVISION PETTTIONER/PROPOSED PARTY AND
1. Mrs. ALKA JHUNJHUNWALA, wife of Mr.Ashok Umar Jhunjhunwala, aged about 63 years, Occ. Housewife.
2. MTs.CHANDRAKALA JHUNJHUNWALA, wife of Mr.S.S.Jhunjhunwala, aged about 85 years, Occ. Housewife Both residents of Plot bearing Nos.3 (part) and 4, Kausalya Cooperative Housing Society Limited, Kakaguda Village, Secbad
3. M/s.R.V.HOMES (lNDlA) PRIVATE LIMITED, Registered Office at 5-930117a, U.. Residency, Palace Colony, Road No.2, Basheerbagh, Hyderabad 500063, Rep. by is Director Mr.Rakshit Agarwal ... RESPON DENTS/PLAI NTIFFS/DEFEN DANT lA NO: 1 OF 2022 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 all further proceedings in 0.S.N0.111 of 2016, on the file of the XXVII Addl. Chief Judge, City Civil Court, At Secunderabad. r:
Counselfor the petitioner: SRt. T. KRISHNA KUMAR Gounselfor the Respondent No.1 & 2: SRTZEESHAN ADNAN MAHMOOD Counsel for the Respondent No.3: SRI MANU The Court made the foilowing:
THE HON'BLE SRI JUSTICE A.VENI(ATESHIIIARA REDDY CrvIL REVISION PETITION No.261 L of 2022
ORDER
This Civil Revision Petition is filed assailing the order dated 16.09.2022 in I.A.No.650 of 2022 in O.S.No.1 1 1 of 2016 on the lile of the learned X)(VII Additional Chief Judge, City Civil Court, Secunderabad. 2.
This application in I.A.No.65O of 2022 was filed by the proposed party under Order 1, Rule LO(21 of Civil Procedure Code (for short 'CPCJ read with Rule 28 of Civil Rules of Practice for impleadment as defendant No.2 in the Original Suit. The trial Court, upon consideration of the entire material on record and the rival contentions, dismissed the said application. Feeling aggrieved by the orders dated L6.O9.2O22 the proposed party has filed this civil revision petition.
3.
Heard learned counsel for the petitioner and respondents. The submissions made on either side have received due consideration of this Court.
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As per the averments in supporting affidavit in I.A.No.65O of 2022 it is pleaded by the proposed party that she is the absolute owner and possessor of the premises of ground plus two upper floors and servant quarters, totally admeasuring 8,400 sft., oD plot No.3 (Part) and plot No.4 in Sy.Nos.SB and 59ll admeasuring 894.31 Sq.Yards in the layout of Kausalya Co-operative Housing Society Limited, Kakaguda Village, Secunderabad having purchased the sarne through a registered sale deed dated 07.O3.2O22 from the agreement of sale-cum-GPA holder, the respondent No.3/defendant No.1 M/s.RV Homes (lndia) Private Limited, represented by its Director and the mutation was also effected in to her name.
5.
Whereas, this application is resisted by the respondents/plaintiffs stating that the alleged transaction has taken place during pendency of the suit causing irreparable loss to the plaintiffs. In-fact, the ptaintiffs have filed the Original Suit in O.S.No.111 of 2016 for cancellation of the said agreement of sale-cum-GpA document No.25 of 2or3 dated gr.t2.2or2 executed in I ?t"t of defendant No.l and for perpetuar injunction,
AVR,I CRP_26rr_2o22 during pendency of the suit, at the fag-end only to create multifarious litigation, the defendant No.1 has sold the suit schedule property in favour of the proposed PtrtY, who is the transferee pendent-lite and she has no independent right in the suit schedule property, she cannot be impleaded, she is not at all a necessary party to the present proceedings and prayed for dismissal of the suit. 6.
At this stage, it is appropriate to examine the pleadings in the plaint and the written statement filed by defendant No.l, who executed the sale deed in favour of the proposed party on 07.03.2022. The plaintiffs have filed the Original Suit for cancellation of agreement of sale - cum - GPA dated 3L.I2.2O22 agatnst the defendant No.l and also sought for perpetual injunction. Defendant No.1 has filed a detailed written statement stating tJlat though the plaintiff had handed over the possession to the defendant, subsequently, the plaintiff requested the defendant to allow the plaintiff to be in possession of portion of the suit propert5r on rental basis for a period of one year, as such the defendant has allowed the plaintiff to \ \ remain in possession of suit schedule property and the
AVR,I CRP->6rt-zozz I'}age 4 of l4 plaintiffs have agreed to pay a monthly rent of Rs.2,00,0OO /- to the l"t defendant.
7. It is further pleaded in paragraph Nos.14 and i5 of the written statement that the praintiffs gained illegally and caused wrongful loss to the defendants and disputed the agreement of sale, as such the defendant has set-up a counter-claim for specific performance of agreement of sale - cum - GPA dated 31.12.2012 alleging that the plaintiffs have entered into loan transaction and that they ire liable to pay the rents from Decembe r, 2or3 to July, 2OL7 amounting to Rs.88,O0,O0O/- however, he is restricting the claim only for a period of three years for a sum of Rs.72,00 ,OOO /-.
Accordingly, in the written statement filed by defendant No.l, a counter claim is setup for directing the plaintiffs to execute a sale deed in favour of the defendants in respect of suit schedule property pursuant to the agreement of sale dated 3L.12.2o12 document bearing No.25 of 2013 and to deliver possession of the suit schedule property and also for Tgr" of rent of Rs.72,00 ,OOO f _, future rents from
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August, 2Ol7 onwards at the rate of Rs.2,OO,OOO/- per month till the date of delivery of possession. 8.
Now let me examine the recitals of the sale deed that is filed by the proposed party. It is dated 07.03.2022, executed by defendant No.l in favour of the proposed party, wherein there is a clear recital that the defendant No.l is the absolute owner and possessor of the said premises and the possession was also handed over to the proposed party on receipt of the entire sale consideration. This sale deed dated 07.O3.2O22 was executed almost after Iive years to defendant No.l filing the written statement. Having pleaded in the written statement, filed in the year 2OI7 that they have lost possession in their year 2Ol2 itself, immediately after the agreement of sale and also the defendant No.l has claimed specific performance of the said agreement of sale dated 3L.12.2O12 vide registered document bearing No.25 of 2013, recovery of possession, arrears of rent, future rents. Whereas the plaintiffs in the Original Suit have claimed that they are in exclusive \tt possession, the 1"t defendant has fraudulently obtained the said agreement of sale -cum- GPA dated gL.12.2O12 railed
I AVR,I CRP_z6rr_zozz Page 6 of l4 to pay the balance sale consideration, possession was also not parted by the plaintiffs, as such, they have sought for cancellation of the agreement of sale -cum- GpA document bearing No.25 of 2013, dated 31.12.2012 and also for perpetual injunction.
9.
Learned counsel for the revision petitioner strenuously contends that the trial court has failed to appreciate the settled principles of law and the order irnpugned is against the spirit and scheme of order 1, Rule 10 of cPC, relied on the principles laid in the following decisions:
(1) Savitri Devi v. District Judge, Gorakhpur and othersl;
(2) Amit Kumar Shaw and another v. Farida Khatoon and anotherz and
(3) V.Narayana Reddy v. Smt.Ani Narayanan and another3.
10. There cannot be any dispute about the principles laid in the above decisions, more particularly in savitri Devi (lst referred supra), a Three Judge Bench of Hon'ble Supreme Court, while dealing with the scope of / r elR tggg Supreme Court 976 ; 112005 Supreme Court 2209 " 2009 ALR(AP) 124
AVR,I CRP-z6rr_zozz PageT of14 Order 1, Rule 10 CPC, held in paragraph Nos.B and 9 as under o8. The facts set out by us in the earlier paragraphs are sufficient to show that, there is a dispute as to whether the first defendant in the suit was part5r to the order of injunction made by the Court on 18.0.92. The proceedings for punishing him for contempt are admittedly pending. The plea raised by him that the lirst respondent had played a fraud not only against him hut also on the Court would have to be decided before it can be said that the sales effected by the first defendant were in violation of the order of the Court. The plea raised by respondents 3 to 5 that they were bona tide transferees for value in good faith may have to be decided before it can be held that the sales in their favour created no interest in the property.
The aforesaid questions have to be decided by the Court either in the suit or in the application filed by respondents 3 to 5 for impleadment in the suit. If the application for impleadment is thrown out without a decision on the aforesaid questions respondents 3 to 5 will certainly come up with a separate suit to enforce their alleged rights which means multiplicity of proceedings. In such circumstances, it cannot be said that respondents 3 to 5 are neither necessary nor proper parties to the suit.
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AVR,I CRP_z6rr_zozz I'}age 8 of 14
9. Order I, Rule 10 C.p.C. enables the Court to add any person as party at any stage of the proceedings if the Derson whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision in the Code,,. 1 1. In Amit Kumar Shaw and another (2"a cited supra) the Honble Apex court held that to save the honest and bonafide purchasers it is essential to implead the pendent-lite purchaser. Similar principle is laid in V.Narayana Reddy (3ro cited supra).
L2. Be it stated that the facts of the case on hand are quite distinguishable. As stated supra, the plaintiff has filed the suit for cancellation of said agreement of sale - cum- GPA document bearing No.25 of 2olg dated 3L.12-2oL2, the suit was filed on 31.0g.2016, the defendants have filed written statement on o4.og.2oL7 by setting up a counter-claim for specific performance of the said agreement of sale -cum-GpA dated 3 1 . 1 2.2or2 in respect of suit schedule property, he is also craiming / To*'.y of possession of suit schedure property.-afid I
AVR,I CRP_z6n_zozz arrears of rent of Rs.72,00,000/- from August, 2Ol3 to July, 2OL7 and future rents at the rate of Rs.2,00,000/- frorn August, 2OLT onward.s till the date of delivery of possession.
13. Conspicuously it is mentioned in the sale deed dated o7.o3.2o22 that the defendant No.l is the absolute owner and possessor and delivered the vacant possession of the same in favour of the proposed parV, which is far from truth and against the pleadings of the l"t defendant in their written statement and the counter claim set up by the l"t defendant. Further, the said sale deed is executed almost after five years of defendant filing the written statement on 04.08.2017 and after more than six years of plaintiff filing t]:e suit. In these circumstances the very averments of the sale deed that the possession was delivered to defendant/proposed party and payment of huge consideration of Rs.4,25,OO,OOO /- appears to be far from the truth, it appears to be a chance litigation, the defendant No.l, who is conscious about the pending suit \ \\ since 2016 for cancellation of the very same registered agreement of sale -cum- GPA, has executed the said sale
AVR,J CRP_zb:r zazz Page l0 of 14 deed in favour of the proposed party in order to create multiple litigations.
L4. The learned counsel for respondents/plaintiffs relied on the principles laid in Sudhamayee Pattnaik and others v. Bibhu Prasad Sahoo and othersa wherein on identical facts the Apex Court in paragraph Nos.11 and 13 held as under :
" 1 1. At the outset, it is required to be noted that the defendants in the suit filed application under Order 1 Rule 10 CPC and prayed to implead the subsequent purchasers as party defendants. The suit is for declaration, permanent injunction and recovery of possession. As per the settled position of law, the plaintiffs are the domius litis. Unless the court suo motu directs to join any other person not party to the suit for effective decree and/or for proper adjudication as per Order 1 Rule 10 CPC, nobody can be permitted to be impleaded as defendants against the wish of the plaintiffs. Not impleading any other person as defendants against the wish of the plaintiffs shall be at the risk of the plaintiffs. Therefore, subsequent purchasers could not have been impleaded as party defendants in the application submitted by the original defendants, that too against the wish of the plaintiffs.
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AVR,I CRP-z6n-zozz Pagellof14
13. However, at the same time, considering the fact that defendants have also filed counter-claim for declaration of their right, title and interest over the suit property and permanent injunction and in case the counter-claim is allowed, as the plaintiffs are opposing to implead the subsequent purchasers as partSr defendants, thereafter it will not be open for the plaintiffs to contend that no decree in the counter-claim be passed in absence of the subsequent purchasers. Therefore, non-impleading the subsequent purchasers as defendants on the objection raised by the plaintiffs shall be at the risk of the plaintiffs"
15. In the present suit also the plaintiffs have filed the suit for cancellation of the said agreement of sale-cumGPA dated 3L.L2.2O12. The defendants have set-up a counter-claim for specific performance of the said agreement of sale-cum-GPA and also for recovery of possession, having pleaded so in their written statement, the defendant No.1 has executed the sale deed dated O7.O3.2O22 with clear recitals of delivery of possession, which is far from the truth. As per the settled position of law, the plaintiffs being the dominus-litis cannot be forced to contest the litigation against their wish. Further, not -- \.
Jd CRP_i6u_zozz Page l2 of 14 impleading any other person as the defendants against the wish of the plaintiffs shall be only at the risk of the plaintiffs. Therefore, as held by the Apex court in the above decision, the subsequent purchasers need not be impleaded as parties to the defendants in the apprication submitted by the proposed ptrW, that too against the wish of the plaintiffs. Therefore, non-impleading the subsequent purchasers as defendants on the objections raised by the plaintiffs shall be only at the risk of the plaintiffs. In that view of the matter and for the reasons stated above, I do not find any merit in the contentions raised by the revision petitioner/third party for her impleadment as defendant in the original Suit and in the written statement filed by the existing defendant.
16. Accordingly, viewed from any angle, the proposed party cannot be treated as a bonafide purchaser for the reason that the defendant No.l has claimed in his written statement filed on o4.o8.2orz for recovery of possession of suit schedule property, whereas, in the registered sare deed dated 0r.03.2022 it is mentioned that \ as absolute owner the defendant No.l has delivered the
AVR,J CRP_z6u_zozz possession of the suit schedule property, in favour of proposed party, which is far from the truth and that the proposed party without taking possession of suit schedule property appear: to have parted the sale consideration as mentioned in the sale deed now approached the trial court with a prayer for impleadment as defendant No.2 claiming \ \ to be the absolute owner and possessor which is not only far from the truth but also against the pleadings and against the claim made by the defendant No.l in their written statement.
17. In that view of the matter the proposed party being a subsequent purchaser cannot be impleaded as defendant No.2 in the original suit against the wish of plaintiff. The impugned order passed by the trial court does not warrant any interference by this court and it does not suffer from any infirmities or irregularities.
18. In the result, the civil Revision petition is dismissed confirming the impugned orders dated 16.o9.2022 in I.A.No.65o of 2022 in o.s.No. 1 1 1 of 2ot6 on
CRP-z6rr-z<lzz the file of the learned XXVII Additional Chief Judge, City Civil Court, Secunderabad.
However, in the circumstances of the case, there shall be no order as to the costs. Miscellaneous applications, if any pending, shall stands closed. sd/- MoHD. SANAULLAH Aqs-^B!
ASSISTANT REGISTRAR L;it) //TRUE COPY/ SECTION OFFIGER To, l.TheXXVIlAddl.ChiefJudge,CityCivilCourt'atSecunderabad
2. One CC to SRl. T. KRISHNA KUMAR' Advocate [OPUCI 3.OneCCtoSRI.ZEESHANADNANMAHMOOD'AdvocatelOPUCl
4. One CC to Sri MANU, Advocate [OPUC]
5. Two CD CoPies \h"- DL
., HIGH COURT AVR,J DATED:2010212023 tlE ST4 1, \ 2 B IiIAH zON L) * if ir r\,.i
ORDER
CRP.No.2611 ot 2022 DISMISSTNG THE CIVL REVISION PETTTION t,s4 "* B b