CRP/6569/2006 of S.Munirathnam, Vs K J Nagabhushana Rao Naidu, on 31 December 2009

COMMON ORDER:

Both these revisions are directed against the orders passed oninterlocutory applications being I.A.No.225 of 2005 and I.A.No.226 of2005 in O.S.No.5 of 2005 on the file of I Additional District Judge,Chittoor.More precisely, C.R.P.No.6569 of 2006 is directed againstthe order dated 28.09.2006 passed in I.A.No.225 of 2009 andC.R.P.No.6570 of 2006 is directed against the order dated 28.09.2006passed in I.A.No.226 of 2005 in O.S.No.5 of 2005.

2. Since both the revisions arise out of the interlocutory orders passedin O.S.No.5 of 2005, they are heard together and are being disposed ofby this common order.

3. Background facts in a nutshell leading to filing of both theserevisions by the proposed parties in O.S.No.5 of 2005 are: The plaintschedule land known as ‘Raja K.J.V.Nayum Vari Silver Jubilee Park’was originally part and parcel of the palace property enclosed by a compound wall.Late Zamindar of Kangundi Estate namely RajaK.J.Venkatapathi Nayani Varu had two sons namely K.J.RamappaNayani Varu and K.J.Subbarajuly Nayani Varu.K.J.NagabhushanaRao Naidu, the plaintiff, is the only son of K.J.Subbarajulu Naidu.K.J.Hemalatha Devi, K.J.Muralidhar, K.J. Vishnu Kumar, defendants 2to 4, are the wife and sons of K.J.Ramappa Naidu.The plaintiff andthe defendants 2 to 4 succeeded to the palace and the available areain the compound as legal heirs of late Raja K.J.Venkatapathi NayaniVaru under a family arrangement.Raja K.J.V.Nayani Varu handedover the plaint schedule property to the Gram Panchayat, Kuppam, formaintaining and developing the park to the benefit of the people ofKuppam. He executed a gift deed in favour of the Gram Panchayat,Kuppam on 29.06.1948, reserving right to resume the gifted propertyeither to him or to his legal representatives in the event of the GramPanchayat violating the condition ofmaintaining the park in the plaintst-schedule land.According to the plaintiff, the 1defendantGramPanchayat has not at all taken any steps to maintain the status quo,leave alone developing the same.Therefore, the plaintiff issued aregistered notice intimating the Gram Panchayat, Kuppam-1stdefendant, his desire to resume the said property under Section 138-Aof the A.P.Gram Panchayat Act.The statutory notice wasacknowledged by the 1stdefendant on 27.10.2004. But, the 1stdefendant neither issued a reply nor delivered possession of the plaintschedule property to the plaintiff.Hence, the suit by the plaintiff.Whileso, two applications have been filed by the petitioners hereinseeking their impleadment as defendants 5 to 17 in the suit.Moreprecisely, I.A.No.225 of 2005 is filed under Order 1, Rule 8(a)r/w.Sec.151 CPC and I.A.No.226 of 2005 is filed under Order 1, Rules8(a) and 10 r/w. Sec.151 CPC.L.L.Udaya Kumar has sworn to theaffidavits filed in support of the applications.It is stated in the affidavitthat the suit schedule park is the communal one situated in SurveyNo.146/1 in Kuppam village and it is vested with the Government and it is being maintained by the Gram Panchayat. It is further stated in theaffidavit that the public had collected contributions from various donorsto unveil the statue of Sri K.J.V.Naidu in the middle of the park. Paras.6and 7 of the affidavit need to be noted and they are thus:

“6.I submit that the suit schedule property is a park at Kuppamcalled as “Raja K.J.V.Nayudu Silver Jubilee Park” situate inS.No.156/1 about two acres in Kuppam village. I submit that since ofour date of births and the time immemorial the suit schedule property“park” is maintaining by the Kuppam Gram Panhayat regularly andpublic of Kuppam and surrounding villagers were enjoying and usingthe schedule park for taking rest, for conducting panchayats.Thepark is also used by children as a play ground in the evening timessince immemorial times.called as “Raja K.J.V.Nayudu Silver Jubilee Park” situate inS.No.156/1 about two acres in Kuppam village. I submit that since ofour date of births and the time immemorial the suit schedule property“park” is maintaining by the Kuppam Gram Panhayat regularly andpublic of Kuppam and surrounding villagers were enjoying and usingthe schedule park for taking rest, for conducting panchayats.Thepark is also used by children as a play ground in the evening timessince immemorial times.

7. The Kuppam Gram Panchayt which is maintaining the suitschedule park since time immemorial, protecting and maintaining forthe benefit and welfare of the public.The schedule park is the onlyplace of pleasure of Kuppam people. In the evening times the oldpeople and senior citizens are regularly coming and making theirwalks and rests in between 6 to 7 PM in every evening and therebythe real dream of Donor and the ambition is perfectly fulfilled byproper maintenance by the Gram Panchayt, Kuppam.It is alsorelevant to submit that since suit schedule property consists of bigold trees situate opposite to A.P.S.R.T.C. Bus Station, Kuppam, thepassengers who came to Kuppam town to board buses for theirdestinations also take rests and shelter under the cool shade of treesstanding in the park.”schedule park since time immemorial, protecting and maintaining forthe benefit and welfare of the public.The schedule park is the onlyplace of pleasure of Kuppam people. In the evening times the oldpeople and senior citizens are regularly coming and making theirwalks and rests in between 6 to 7 PM in every evening and therebythe real dream of Donor and the ambition is perfectly fulfilled byproper maintenance by the Gram Panchayt, Kuppam.It is alsorelevant to submit that since suit schedule property consists of bigold trees situate opposite to A.P.S.R.T.C. Bus Station, Kuppam, thepassengers who came to Kuppam town to board buses for theirdestinations also take rests and shelter under the cool shade of treesstanding in the park.”

According to the proposed parties, the 1stdefendant is not properlytaking care of the case and therefore, to protect the interest of public atlarge, they are necessary and proper parties to the suit. The plaintifffiled counter resisting the application.The sum and substance of thecounter is that the donee violated the conditions stipulated in the giftdeed dated 29.06.1948 and thereby right accrued to the legal heirs ofthe donor to resume the gifted property. The dispute is between theplaintiff and the 1stdefendant and therefore, the proposed parties areneither necessary nor proper parties to the suit proceedings and thus,the applications are liable to be dismissed.The 1stdefendant filed

counter reporting no objection for impleadment of the proposed partiesas defendants in the suit.The learned Additional District Judge, onconsidering the material brought on record and on hearing the counselappearing for the parties, proceeded to dismiss both the applicationson the ground that the proposed parties have not placed any proof thatthey got mandate of the people of Kuppam to represent them and thattheir impleadment in the suit as defendants may delay theproceedings. An observation has been made by the learned AdditionalDistrict Judge that the proposed parties can seek appropriate remedyagainst the Gram Panchayat if they have any claim against GramPanchayat and not against the plaintiff. With the above observations,the learned Additional District Judge proceeded to dismiss both theapplications, by a separate orders dated 28.09.2006.Hence, boththese revisions by the proposed parties.

4. Heard learned counsel appearing for the parties.

5. Learned counsel appearing for the petitioners submits that thegift deed has been executed by Raja K.J.Venkatapathi Nayani Varu infavour of Kuppam Gram Panchayat whereunder he donated the plaintschedule land for being developed as a park for the benefit of thepeople of Kuppam and neighbouring villages and the petitioners, whoare proposed parties, thereby became the beneficiaries under the saidgift deed. A further submission has been made that the GramPanchayat has spent lot of money for developing a park in the suitschedule land and since the Gram Panchayat did not respond to thenotice issued by the plaintiffs demanding re-delivery of the property onthe ground of violation of the conditions stipulated in the gift deed,there is a reasonable ground for the petitioners to apprehend that theGram Panchayat may not put the defence effectively and therebycausing much prejudice to the benefits conferred on the people ofKuppam and neighbouring villages. He would also contend that thepetitioners who are the proposed parties are ex-representatives of Kuppam and neighbouring villages and therefore their impleadment asparty defendants in the suit is very much essential to place on recordthe real facts to enable the court to come to right conclusions on theissues involved in the suit. Learned counsel placed reliance on thedecision of this court in SARASWATHI NAGAR RESIDENTSWELFARE SOCIETY V. ARJUNDAS[[1]]and the decisions of SupremeCourt in V.J.THOMAS v. PATHROSE ABRAHAM[[2]]and MUNICIPALCOUNCIL HANSI DISTRICT HISSAR HARYANA V. MANI RAJ[[3]].

6. Per contra, learned counsel appearing for 1[st] respondent/ plaintiffsubmits that the issue involved in the suit is whether there was anyviolation of the terms and conditions of the gift deed which entitled theLRs of the donor to claim re-delivery of the property covered under thegift deed and therefore the presence of the proposed parties is notessential for adjudication of the issue involved in the suit. A furthersubmission has been made that the provisions of Order I, Rule 8A ofCPC is wholly inapplicable since the issues are not yet settled and it isvery premature for the proposed parties who are the petitioners hereinto apprehend that 2[nd] respondent-Gram Panchayat would not putforward its defence effectively. He would also contend that theproposed parties who are the petitioners herein are neither necessarynor proper parties in which case the orders passed by the trial courtdismissing their applications do not warrant interference by this courtin exercise of the powers under Article 227 of the Constitution of India.In support of his submissions, reliance has been placed on thedecision of Supreme Court in RAMESH H.KUNDANMAL v.MUNICIPAL CORPN. OF GREATER BOMBAY[[4]]. Much emphasishas been laid on para 6, 10 and 14 of the judgment, which read asunder:

“ ( 6 ) SUB-RULE (2 of Rule 10 gives a wide discretion to the courtto meet every case of defect of parties and is not affected by the inaction ofthe plaintiff to bring the necessary parties on record. The question ofimpleadment of a party has to be decided on the touchstone of Order 1 Rule 10 which provides that only a necessary or a proper party may be added. Anecessary party is one without whom no order can be made effectively. Aproper party is one in whose absence an effective order can be made butwhose presence is necessary for a complete and final decision on thequestion involved in the proceeding. The addition of parties is generally not aquestion of initial jurisdiction of the court but of a judicial discretion which hasto be exercised in view of all the facts and circumstances of a particularcase.”

“( 10 ) THE power of the court to add parties under Order 1 Rule 10,Civil Procedure Code, came up for consideration before this court in RaziaBegum In that case it was pointed out that the courts in India have nottreated the matter of addition of parties as raising any question of the initialjurisdiction of the court and that it is firmly established as a result of judicialdecisions that in order that a person may be added as a party to a suit, heshould have a direct interest in the subject matter of the litigation whether itbe the questions relating to movable or immovable property.”

“( 14 ) IT cannot be said that the main object of the rule is to preventmultiplicity of actions though it may incidentally have that effect. But thatappears to be a desirable consequence of the rule rather than its mainobjective. The person to be joined must be one whose presence isnecessary as a party. What makes a person a necessary party is notmerely that he has relevant evidence to give on some of the questionsinvolved; that would only make him a necessary witness. It is not merely thathe has an interest in the correct solution of some question involved and hasthought of relevant arguments to advance. The only reason which makes itnecessary to make a person a party to an action is so that he should bebound by the result of the action and the question to be settled, therefore,must be a question in the action which cannot be effectually and completelysettled unless he is a party. The line has been drawn on a wider constructionof the rule between the direct interest or the legal interest and commercialinterest. It is, therefore, necessary that the person must be directly or legallyinterested in the action in the answer, i. e. , he can say that the litigation maylead to a result which will affect him legally that is by curtailing his legalrights. It is difficult to say that the rule contemplates joining as a defendant aperson whose only object is to prosecute his own cause of action. Similarprovision was considered in Amon v. Raphael Tuck and Sons Ltd. whereinafter quoting the observations of Wynn-Parry, J. in Dollfus Mieg etCompagnie S. A. v. Bank of England, that their true test lies not so much inan analysis of what are the constituents of the applicants' rights, but rather inwhat would be the result on the subject matter of the action if those rightscould be established, Deviin, J. has stated:

"the test is 'may the order for which the plaintiff is asking directly affect theintervener in the enjoyment of his legal rights'."

7. Indisputably, 1[st] respondent/plaintiff filed the suit seekingdeclaration that D1/Gram Panchayat, Kuppam has violated the conditions in the gift settlement deed dated 29.6.1948 and therebyentitled to recover possession of the plaint schedule property throughthe process of Court. The gift deed was executed by RajaK.J.Venkatapathi Nayani Varu in respect of the suit schedule propertyfor being developed as a park to the benefit of the people of Kuppam.The relevant portion of the gift deed dated 29.6.1948 needs to benoted and it is thus:

“ ….whereas the public of Kuppam have requested the donorto grant to the Panchayat Board the said piece of land and premisesdescribed in the schedule hereto for the purpose of laying on a publicpark – raja K.J.V.Naidu S.Ramachandraiah Executive Officer – andwhereas the donor has agreed to transfer the said piece of land andpremises to the donee as a gift and the donor has a need to accept thesame – Raja K.J.V.Naidu S.Ramachandraiah Executive Officer – andwhereas the said piece of land and premises is of the value of Rs.1600(Rupees one thousand and six hundred only) for the purpose of stampduty – Raja K.J.V.Naidu S.Ramachandraiah Executive Officer – Nowthis indenture witnesseth that the donor hereby give grant convey andassignment to the donee, his heirs executors, administrators, legalrepresentatives and assigns who hereby accept the SurveyNo.146.20/5 situated in the village of Kuppam in the registration sub-district of Kamgundi in the Registration District of Chittoor – RajaK.J.V.Naidu S.Ramachandraiah Executive Officer – and being moreparticularly described in the schedule hereunder written together alsowith a radio house a statue compound wall, gate with lock and keyarrangement trees – common ledge, ditches fences, ways waters,water users liberties privileges easements advantages andappurtenances whatsoever to the said pieces or parcel of landbuildings and premises or any of them in any wise appertaining orhereto fore occupied or enjoyed therewith and all the estate right titleinterest property claim and demand – Raja K.J.V.NaiduS.Ramachandraiah Executive Officer – whatsoever of the donors intoand upon the same premises to have and to hold the said piece orparcel of land and premises hereby granted conveyed and assignedunto the donee his heirs executors, administrators, legalrepresentatives and assigns forever and donor doth hereby in itselfand its successors and assigns each of them doth covenants with thedonee his heirs, executors, administrator, legal representatives andassigns – Raja K.J.V.Naidu S.Ramachandraiah Executive Officer –that the donor now hath good right to grant convey and assign thepremises hereby granted conveyed and assigned unto the donee hisheirs, executors, administrators, legal representatives and assigns inthe manner aforesaid and that the donee, his heirs, executors,administrators, legal representatives and assigns shall and may at alltimes after peaceable quietly possess and enjoy the said premises without any lawful eviction interruption claim or demand – RajaK.J.V.Naidu S.Ramachandraiah, Executive Officer – whatsoever fromor by the donor its successors or assigns and the free from allencumbrances whatsoever and furnish that the donor its successorsand assign and all persons having or lawfully or equitably claimingany estate or interest in the said premises – Raja K.J.V.NaiduS.Ramachandraiah, Executive Officer – any part thereof from under orin trust for the donor its successors or assigns shall and will from timeto time and at all times hereinafter …….”

A reading of the gift deed does not give any room for doubt that theplaint schedule property ahs been donated by the donor for the benefitof the people of Kuppam and the gift has been accepted by the GramPanchayat, Kuppam. The proposed parties who are the petitionersherein are, either former or present, peoples representatives ofKuppam. Indeed, 1[st] respondent/ plaintiff did not seriously dispute thepositions held by the proposed parties, who are the petitioners herein.

8. Two provisions of CPC are required to be noted at this junctureand they are Rules 8A and 10 of Order 1 CPC and they read as under:

“ 8A Power of Court to permit a person or body of persons topresent opinion or to take part in the proceedings:

[-While trying a suit, the Court may, if satisfied that a person or body ofpersons is interested in any question of law which is directly andsubstantially in issue in the suit and that it is necessary in the public interestto allow that person or body of persons to present his or its opinion on thatquestions of law, permit that person or body of persons to present suchopinion and to take such part in the proceedings of the suit as the Court mayspecify.]”

“10 Suit in name of wrong plaintiff -

(1) Where a suit has been instituted in the name of the wrong personas plaintiff or where it is doubtful whether it has been instituted in the name ofthe right plaintiff, the Court may at any stage of the suit, if satisfied that thesuit has been instituted through a bona fide mistake, and that it is necessaryfor the determination of the real matter in dispute so to do, order any other(2) Court may strike out or add parties.-The Court may at any stageof the proceedings, either upon or without the application of cither party, andon such terms as may appear to the Court to be just, order that the name ofany party improperly joined, whether as plaintiff or defendant, be struck out,and that the name of any person who ought to have been joined, whether asplaintiff or defendant, or whose presence before the Court may be necessaryin order to enable the Court effectually and completely to adjudicate upon andsettle all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing without a new friendor as the next friend or a plaintiff under any disability without his consent.

(4) Where defendant added, plaint to be amended.-Where adefendant is added, the plaint, unless the Court otherwise directs, beamended in such manner as may be necessary, and amended copies ofsummons and of the plaint shall be served on the new defendant and if theCourt thinks fit, on the original defendant.

(5) Subject to the provisions of the [S.22 OF THE Limitation Act,1877] , the proceedings as against any person added as defendant shall bedeemed to have begun only on the service of the summons.”

9. The petitioners filed I.A.No.225 of 2005 under Order I Rules 8Ar/w 151 CPC and I.A.No.226 of 2005 under Order I Rule 10 r/w 151CPC. A plain reading of Order I Rule 8A of CPC indicates that theprovisions of the said Rule comes into operation after framing theissues. Admittedly, as on this day no issues are settled by the trialCourt. For all practical purposes, trial in the suit has not yetcommenced and therefore invocation of the provisions of Order I Rule8A of CPC before commencing of trial is premature. Therefore, theorder passed by the trial court dismissing I.A.No.225 of 2005 filedunder Order I Rule 8A of CPC is liable to be dismissed and thus, theorder of the trial Court dismissing the application filed under Order 1,Rule 8A CPC does not warrant interference by this Court.

10. The second application being I.A.No.226 of 2005 is filed underOrder I Rule 10 CPC. The question of impleadment of a party has tobe decided on the touchstone of Order I Rule 10 which provides thatonly a necessary or a proper party may be added. The relevant portionof the gift deed has been extracted supra. The donor has gifted theplaint schedule land for being maintained as a park for the benefit ofthe people of Kuppam and neighbouring villages. The suit is filed byone of the LRs of the donor on the ground that the Gram Panchayat isnot utilizing the land for which it has been gifted and therefore soughtfor delivery of the possession of the land. The proposed parties are thepeople of Kuppam and they are the beneficiaries under the gift deed.They are the proper persons to speak as to the developmental activitythat has taken place after the Gram Panchayat took possession of the properties by virtue of the gift deed. In case the suit is decreed infavour of R1/plaintiff, the petitioners would be the effected parties,since they would be deprived of the benefit conferred on them by thegift deed. An identical question came up before the Supreme Court inV.J.THOMAS’s case (2[nd] cited) wherein it has been held that those whowould be effected by the execution of the decree should ordinarily bemade parties to the suit. Para 14 of the judgment needs to be notedand it is thus:

“ 14. A litigant may execute a decree which was obtained forthe benefit of the people of the locality but if he intends to execute adecree which was obtained for his own benefit, those who would beaffected thereby should ordinarily be made parties to the suit. Similarly,if a village pathway is the subject matter of the suit on the premise thatit is the personal property of the plaintiff, those who use the saidpathway or at least have lands adjacent thereto should ordinarily beimpleaded as parties. In the latter case, like the present one, applyingthe legal principles, as noticed hereinbefore, we are of the opinion thata decree which has been obtained by suppression of fact or collusivelywould not be executable against those who were not parties to thesuit.”

11. Since the people of Kuppam would be adversely effected in theevent of the suit being decreed, the proposed parties being thepeoples representatives, either present or former, are necessary andproper parties to the suit for the proper adjudication of the lis in the suit.

12. In view of the above, C.R.P.No.6570 of 2006 is allowed andwhereas C.R.P.No.6569 of 2006 is dismissed. Consequently,I.A.No.226 of 2005 in O.S.No.5 of 2005 stands allowed and dismissalof I.A.No.225 of 2005 in O.S.No.5 of 2005 stands confirmed. No costs.

31[st] December, 2009. (B.Seshasayana Reddy,J)cs/tnb THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY

C.R.P.Nos.6569 and 6570 of 2006

[1]1997(1) ALT 55[2]2008(5) SCC 84[3]2001(4) SCC 173[4](1992) 2 SCC 524

Dated:31stDecember, 2009