THE HON’BLE Ms. JUSTICE G. ROHINI CIVIL REVISION PETITION No.5609 OF 2012 DATE: 21.01.2014 THE HON’BLE Ms. JUSTICE G. ROHINI CIVIL REVISION PETITION No.5609 OF 2012 ORDER:
This revision petition is directed against the order dated 24.09.2012 in I.A. No.3051/2011 in O.S. No.41/2009 on the file of the Court of the I Additional Chief Judge, City Civil Court, Secunderabad.
The revision petitioners are the plaintiffs. The suit is filed against the respondents 3 to 6 herein seeking a decree for recovery of possession of the plaint schedule property. It is claimed in the plaint that the defendants/respondents 3 to 6 herein are in occupation of the suit schedule premises as tenants.
The respondents 1 and 2 herein who are third parties to the suit filed I.A.No.3051/2011 under Order I Rule 10 of C.P.C. to implead them as defendants 5 and 6. The said application was allowed by the Court below by order dated 24.09.2012 and aggrieved by the same the present revision petition is filed.
I have heard the learned counsel for both the parties.
As could be seen from the material available on record, the revision petitioners/plaintiffs filed the main suit for recovery of possession of the plaint schedule property claiming title to the suit schedule property and alleging that the defendants/respondents 3 to 6 herein who are in possession as tenants are liable to be evicted.
The respondents 1 and 2 herein who sought to implead them as defendants 5 and 6 claim to be the sisters of the plaintiffs 1 and 2. It is pleaded by them that they had earlier filed O.S.No.84/2004 on the file of the Court of the I Additional Chief Judge, City Civil Court, Secunderabad against the plaintiffs 1 and 2 for partition and that by judgment dated 19.01.2009 a preliminary decree was passed granting 1/4th share each to the plaintiffs and the defendants therein. Against the said judgment and decree the respondents 1 and 2 herein/defendants in O.S. No.84/2004 filed C.C.C.A. No.74/2009 and the same is pending on the file of this Court. It is claimed that the plaint schedule property in O.S.No.41/2009 is one of the items of the property which was the subject matter of the partition decree in O.S.No.84/2004. Accordingly it was claimed that they are proper and necessary parties and therefore they may be impleaded as defendants 5 and 6. The said application was opposed by the plaintiffs/revision petitioners contending that as the judgment and decree in O.S.No.84/2004 is the subject matter of appeal pending before this Court, no right can be claimed by the proposed parties in respect of the suit schedule property on the basis of the said decree for partition.
Having regard to the admitted fact that there was a partition decree to which the plaintiffs 1 and 2 are also the parties and the plaint schedule property is stated to be one of the items of the schedule property to the partition decree in O.S. No.84/2004, the Court below thought it fit to allow the implead petition.
Assailing the said order, it is vehemently contended before this Court by the learned counsel for the revision petitioners/plaintiffs that so far as the suit for recovery of possession is concerned the privity of contract subsists interse the plaintiffs and the defendants / respondents 3 to 6 herein alone and therefore the third parties cannot be allowed to be impleaded. It is also contended that the preliminary decree for partition granted in O.S. No.84/2004 having been stayed by this Court in C.C.C.A.No.74/2009 and the right claimed by the proposed parties is subjudice, the Court below ought not to have allowed the application for impleadment. In support of the said submission the learned counsel for the petitioners relied upon Mumbai International Airport Private Limited Vs. Regency Convention Centre and Hotels
[1]
Private Limited and Others a n d Bandikatta Satyavathi Vs.
[2]
Bandkatta Venkata Rao and another .
There can be no dispute as to the ratio laid down in the above said decisions. However, whether a third party to the proceedings is a proper and necessary party for adjudicating effectively the issues involved in the suit always depends on the facts and circumstances of the case. Coming to the case on hand, the fact that the suit schedule property is the subject matter of O.S.No.84/2004 is not in dispute. Though the operation of the preliminary decree in O.S.No.84/2004 was initially stayed by this Court in C.C.C.A.No.74/2009, subsequently by order dated 23.03.2010 the said order was modified directing the defendants 1 and 2 to preserve the plaint schedule properties in as is and where is condition and should not alienate or encumber the same in any manner. The order under revision whereunder the respondents 1 and 2 herein were impleaded in my considered opinion does not run contrary to the said order passed by this Court.
In the facts and circumstances noticed, I am of the opinion that the presence of the respondents 1 and 2 herein is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. Therefore, the order under revision cannot be said to be erroneous on any ground whatsoever.
Accordingly, the Civil Revision Petition is dismissed. No costs. Consequently the miscellaneous petitions, if any, pending in this Revision Petition shall stand closed.
Justice G. Rohini Dt. 21.01.2014 MVA
THE HON’BLE Ms. JUSTICE G. ROHINI
CIVIL REVISION PETITION No.5609 OF 2012 Date: 21.01.2014
MVA
[1] 2010 (7) SCC 417
[2] 2001 AIHC 1257