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2016 Supreme(AP) 433

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
M. SEETHARAMA MURTI, J.
V. Krishnamachari – Appellant
Versus
A. Nataraja Achari & Others – Respondent
Civil Revision Petition No. 5046 of 2014
Decided On : 11-07-2016

Advocates Appeared:
For the Petitioner:P.V. Vidyasagar, Advocate.
For the Respondents:R1, T. Janardhan Rao, R2 to R6, K. Umapathy, Advocates.

Headnote:

specific performance and Relief – Constitution of India – Article 227 – Code of Civil Procedure, 1908 – Order I Rule 10 read with Section 151 – Civil Rules of Practice – Rule 28 – Revision petition – Suit for Specific performance of an agreement of sale – Civil Law – Execution of sale – Case of third party/proposed 6th defendant in support of his request for his impleadment as party 6th defendant to suit – Defendants 1 and 2 in the suit are his vendors – Defendants 3 to 5 are no way concerned with the suit schedule property. The defendants 1 and 2 entered into an agreement of sale with this proposed 6th defendant in regard to Ac.0.65 cents in Sy.No.120/10 and another property and received sale consideration on the same day agreeing to execute a registered sale deed whenever demanded by him. The said facts are known to the plaintiff. The sale deed was also executed by defendants 1 and 2 in favour of the proposed 6th defendant as per the terms of the agreement of sale – Defendants 1 and 2 handed over all the documents pertaining to the said property and another property to proposed 6th defendant. The proposed 6th defendant discharged a loan of Rs.20,000/- due by the 1st defendant to the Society (Single Window), S.R.Puram – However, while typing contents of document/the sale deed executed in favour of proposed 6th defendant, total extent is mistakenly stated as Ac.0.25 cents instead of as Ac.0.65 cents. But, the boundaries are correctly mentioned in the schedule of the sale deed and the same cover the total extent of Ac.0.65 cents – Taking advantage of the said mistake in mentioning the extent in the said sale deed, the plaintiff who is well versed in conducting civil cases before the Courts had created the suit document in collusion with defendants 1 and 2 and had filed the suit against the defendants 1 and 2 for specific performance to defeat the rights of the proposed 6th defendant over the suit property – Held, suit is filed by the plaintiff for specific performance of an agreement of sale executed by the defendants – Proposed 6th defendant is not a party to the suit agreement of sale. Since the proposed 6th defendant is not a party to the agreement of sale, he cannot be heard to say that dispute as to specific performance cannot be determined without his presence. As per the settled legal position, a third party cannot be and need not be added as a party defendant to the suit for specific performance as the suit for specific performance can be effectively adjudicated in the absence of a third party/proposed 6th defendant – If the third party/proposed 6th defendant is impleaded, the scope of the suit for specific performance would be enlarged and it would be practically converted into a suit for declaration of title – Therefore, the proposed 6th defendant is not a necessary party. The trial Court without properly appreciating the facts and the legal position applicable had erroneously permitted the 6th defendant to be impleaded as party 6th defendant to the suit. The order is erroneous and is liable to be set aside – For the aforementioned reasons, this Court finds that the order of the Court below permitting the impleadment of the proposed 6th defendant as a party defendant to the suit is justified and that therefore, the order impugned brooks no interference – Civil Revision Petition is dismissed. (Paras 6, 9 and10)

JUDGMENT :

1. The unsuccessful 1st respondent/plaintiff brought this civil revision petition under Article 227 of the Constitution of India against the orders dated 01.12.2014 of the learned Principal Junior Civil Judge, Puttur of Chittoor District passed in I.A.no.232 of 2014 in O.S.no.246 of 2013 filed by the petitioner/3rd party/the 1st respondent herein under Order I Rule 10 read with Section 151 of the Code of Civil Procedure, 1908 read with Rule 28 of Civil Rules of Practice to implead the said third party petitioner as 6th defendant in the suit he being a proper and necessary party.

2. I have heard the submissions of the learned counsel for the revision petitioner/plaintiff (‘the plaintiff’, for brevity) and the learned counsel for the 1st respondent/3rd party/proposed 6th defendant. I have perused the material record.

3. The facts, which are necessary to be stated as a preface to this order, in brief, are as follows:

3.1 The case of the third party/proposed 6th defendant (‘the proposed 6th defendant’, for brevity) in support of his request for his impleadment as party 6th defendant to the suit, in brief, is this: ‘He is the brother of the plaintiff. The defendants 1 and 2 in the suit are his vendors. Defendants 3 to 5 are no way concerned with the suit schedule property. The defendants 1 and 2 entered into an agreement of sale with this proposed 6th defendant in regard to Ac.0.65 cents in Sy.No.120/10 and another property on 29.11.2010 and received the sale consideration of Rs.1,00,000/- on the same day agreeing to execute a registered sale deed whenever demanded by him. The said facts are known to the plaintiff. The sale deed was also executed on 01.11.2013 by the defendants 1 and 2 in favour of the proposed 6th defendant as per the terms of the agreement of sale. The defendants 1 and 2 handed over all the documents pertaining to the said property and another property to the proposed 6th defendant. The proposed 6th defendant discharged a loan of Rs.20,000/- due by the 1st defendant to the Society (Single Window), S.R.Puram. However, while typing the contents of the document/the sale deed dated 01.11.2013 executed in favour of the proposed 6th defendant, the total extent is mistakenly stated as Ac.0.25 cents instead of as Ac.0.65 cents. But, the boundaries are correctly mentioned in the schedule of the sale deed and the same cover the total extent of Ac.0.65 cents. Taking advantage of the said mistake in mentioning the extent in the said sale deed, the plaintiff who is well versed in conducting civil cases before the Courts had created the suit document in collusion with the defendants 1 and 2 and had filed the suit against the defendants 1 and 2 for specific performance to defeat the rights of the proposed 6th defendant over the suit property. The proposed 6th defendant had also issued legal notice dated 16.12.2013 to his vendors/the defendants 1 and 2 calling upon them to execute a rectification deed to rectify the mistake in regard to the extent mentioned in the sale deed. The defendants 1 and 2 received the said notice. Having come to know on 20.12.2013 from a villager that the plaintiff and the defendants are going to Court to request to place the matter before the Lok Adalat to get a collusive award over the suit property, the proposed 6th defendant had opposed for passing of the award before the Lok Adalat. Therefore, the matter was posted to 02.01.2014 before the Lok Adalat. As the first hearing of suit was fixed after a long date, the plaintiff and the defendants 1 and 2 in collusion had filed an application for advancing the hearing date and got the matter listed before the Lok Adalat; and, the said fact reveals the collusion between them. The plaintiff and the defendants having brought the suit are playing fraud upon the trial Court for getting a collusive decree to evade presentation of the pattadar passbook and the title deed book before the Sub Registrar Office, Karvetinagar. Hence, the proposed 6th defendant
















































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