APHC010188082023 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3332] TUESDAY,THE THIRTY FIRST DAY OF MARCH TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI CIVIL REVISION PETITION NO: 1668/2023 Between: 1. PERUMALLA BHANU KUMARI, WIFE OF MURALI KRISHNA, HINDU, AGED 48 YEARS, VIJAYAWADA ...PETITIONER AND 1. BANDARU VEERA VENKATA SATYA SURYA NARAYANA, S/O.SURYANARAYANA, AGED 61 YEARS, D.NO.16-27-59, BHAVANAM STREET, NARASANNA PETA, YALAMANCHILI, VISAKHAPATNAM DISTRICT 2. SAMAYAMANTHULA KRISHNA MURTHY, (DIED). 3. SAMAYAMANTHULA SURYA KANTHA RAO, , SON OF KRISHNA MURTHY, AGED 61 YEARS, D.NO.7-22, KRISHNA BAZAR, NARSIPATNAM. 4. SAMAYAMANTHULA SUGUNAVATHI, WIFE OF KRISHNA MURTHY, AGED 83 YEARS, R/O. VIJAYAWADA. 5. SAMAYAMANTHULA BHAVANI, , WIFE OF SURYA KANTHA RAO, AGED 56 YEARS, D.NO.7-22, KRISHNA BAZAR, NARSIPATNAM. ...RESPONDENT(S): Petition under Article 227 of the Constitution of India, praying that in the circumstances stated in the grounds filed herein, the High Court may 2 be pleased to allow the revision petition by setting aside the order passed by the Honourable SENIOR CIVIL JUDGE AT Pithapuram in I.A.No.822/ 2022 in F.D.I.A.843/2017 in O.S.No.37/ 2003, dated 27-01-2023 and pass IA NO: 1 OF 2023 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 condone the delay of 70 days in representing the above CRP. filed against the I.A.822/2022 IN F.D.I.A.843/2017 IN 0.S.37/2003 dated 27-01-2023, on the file of SENIOR CIVIL JUDGE, PITHAPURAM and to pass IA NO: 2 OF 2023 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 order the stay of all further proceedings in I.A.822/2022 in F.D.I.A.843/2017 in O.S.No.37/ 2003, on the file of the SENIOR CIVIL JUDGE AT Pithapuram, pending disposal of above CRP and pass Counsel for the Petitioner: 1. GUNDAPU RAJESH KUMAR Counsel for the Respondent(S): 1. KOTHA NAGA SURYA RAO 2. T V JAGGI REDDY The Court made the following: 3 ORDER: Assailing the correctness and legality of the orders passed in I.A.No.822 of 2022 in F.D.I.A.No.843 of 2017 in O.S.No.37 of 2003 by the Senior Civil Judge, Pithapuram, dated 27.01.2023, the present Civil Revision Petition is filed. 2. The facts that led to filing of this Civil Revision Petition are that the petitioner who is the plaintiff got filed a suit in O.S.No.37 of 2003 on the file of Senior Civil Judge, Kakinada, for partition of the plaint schedule properties. The respondent Nos.2 to 5 herein are the defendants in the suit. Pursuant to passing of the preliminary decree, the petitioner/plaintiff filed final decree application vide F.D.I.A.No.843 of 2017 for appointment of an advocate commissioner for partition of the suit schedule property in terms of the preliminary decree. In the said final decree application, the 1st respondent herein filed I.A.No.822 of 2022 under Order I Rule 10 duly praying the Court below for adding him being creditor of respondent Nos.2 to 5 herein in the said proceedings. The said application has been opposed by the revision petitioner/plaintiff denying the allegations and prayed to dismiss the I.A. After hearing the parties, the Court below allowed the said I.A and thereby permitted the 1st respondent herein to come on record as respondent No.5 in the main final decree proceedings. Assailing the said order, the present Civil Revision Petition is filed. 4 3. Heard Sri Gundapu Rajesh Kumar, learned counsel for the petitioner, Sri T.V.Jaggi Reddy, learned counsel for the 1st respondent and Sri Kotha Naga Surya Rao, learned counsel for respondent No.3. 4. Learned counsel for the petitioner while reiterating the contents of the counter filed before the Court below and the grounds of revision submitted that the proposed party/intervener is not proper and necessary party in a suit for partition that too in a final decree proceedings. The insolvency petition filed by the creditors against the respondent Nos.2 to 5 herein is allowed which was confirmed and thereby the Official Receiver has been appointed. If at all, the Official Receiver has to come on record, he can come as party respondent but not the proposed party/intervener. He further contended that inasmuch as 32 creditors are there in the said I.P. proceedings. If every individual creditor is impleaded, the nature of final decree proceedings will be changed and the final adjudication will not see the light of the day. He further submitted that the 1st respondent ought to have approached the receiver instead he has filed the present application praying the Court to permit him to come on record as respondent No.5 to the final decree proceedings. The Court below failed to take into consideration Order I Rule 10 in a right perspective. When the 1st respondent herein is not proper and necessary party, he cannot be brought on record. The Court below erroneously 5 allowed the said application, as such, prayed to allow the revision and set aside the orders impugned. 5. In support of his contention, learned counsel for the petitioner relied on the judgement of the Hon’ble Apex Court in Mumbai International Airport Private Limited v. Regency Convention Centre & Hotels Private Limited & Others1 and prayed to pass orders. 6. On the other hand, Sri T.V.Jaggi Reddy, learned counsel contended that respondent Nos.2 to 5 are declared as insolvents and it has attained finality and the subject property of the said I.P. proceedings is the schedule property of the subject suit. If these facts are not brought to the notice of the Court below, it would lead to multiplicity of litigation. By virtue of culmination of the final decree, it may lead to a result which will affect the proposed party legally i.e., by curtailing his legal rights. In the said view of the fact, he would be a necessary party. The Court below has rightly dealt the application filed by the 1st respondent under Order I Rule 10 and rightly came to a conclusion that the 1st respondent is a necessary party and thereby allowed the same by giving cogent reasons. He further submitted that, to avoid multiplicity of litigation, the law is very clear that the party can be brought on record. In support of his contention, he relied on the Judgement of the High Court of Patna in Civil Miscellaneous Jurisdiction No.1303 of 2018, accordingly, prayed to dismiss the revision. 1 (2010) 7 Supreme Court Cases 417 6 7. Learned counsel for the petitioner in reply submitted that though insolvency proceedings attained finality in the year 2009, respondent No.1 did not take steps and only after final decree proceedings have been initiated in the year 2017 i.e., after 8 years such an application has been filed and on the ground of delay, the said application ought to have been dismissed by the Court below but the Court below did not look into the said aspect while adjudicating the said application. 8. Learned counsel for respondent No.3 also submitted in similar lines of the submissions of the petitioner. 9. Perused the record and considered the submissions made by the learned counsel for the parties. 10. It is not in dispute that the 1st respondent herein is the creditor/intervener wherein insolvency proceedings have been initiated to declare respondent Nos.2 to 5 as insolvents and that has been attained finality and receiver has been appointed. While so, the petitioner herein filed a suit in O.S.No.37 of 2003 against respondent Nos.2 to 5 herein for partition. The said suit has been decreed, preliminary decree has been passed on 06.04.2006. Pursuant to the said preliminary decree, the petitioner herein filed F.D.I.A.No.843 of 2017 for passing of final decree by appointing an advocate commissioner with a direction to partition schedule property in 3 equivalent equitable shares by metes and bounds and to allot one such share to the petitioner/plaintiff. In the said final 7 decree proceedings, the 1st respondent herein who is one of the creditors/intervener in the I.P.No.10 of 1993 filed I.A.No.822 of 2022 under Order I Rule 10 read with Order VI Rule 17 and Section 151 of CPC for adding the creditor of the respondent Nos.2 to 5 in the said proceedings by duly contending that the property of the insolvency proceedings and the property in the subject suit are one and the same and the said property is in the custody of the receiver. If the said property is partitioned, it would lead to multiplicity of litigation. The petitioner/plaintiff and the 3rd respondent opposed to the said application duly contending that they are not proper and necessary parties and if each and every creditor is brought on record in such manner, the result in the final decree proceedings will not see the light of the day. 11. Further, the insolvency proceedings have been attained finality in the year 2009 and after 8 years such an application has been filed belatedly. The Court below by duly taking into consideration the rights of the creditor over the extent of the right over the share of respondent Nos.2 to 5 and thereby came to a conclusion that the creditor/1st respondent herein is necessary party. The legality and correctness of the said order has been assailed in the present revision on the ground that the said application has been filed with a delay and further the purport of Order I Rule 10 was not taken due note of by the trial Court. 8 12. Para 15 of the judgement relied on by the learned counsel for the petitioner in Mumbai international referred supra, reads as follows: A `necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a `necessary party' is not impleaded, the suit itself is liable to be dismissed. A `proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance. 13. No doubt it is well settled principle of law that it has to be taken into consideration the facts and circumstances of each case independently. The provision of Order I Rule 10 speaks about judicial discretion of the Court to strike out or add parties at any stage of the suit. It can strike out any party, who is improper, properly joined, it can add anyone as plaintiff or defendant if it finds such persons as proper and necessary party. The Court under Order I Rule 10 (2) of CPC will of course act according to the reason and fair play but not according to the whims and caprice. 14. The contention of the petitioner is that though in the year 2009, the insolvency proceedings attained finality they did not take steps in filing such application under Order I Rule 10 till 2017, as such, there occurred delay. The Hon’ble Apex Court has categorically held that delay is not a 9 ground when substantial rights are being affected and the procedure is handmaid of justice but not the mistress. The Court below has rightly held that if the creditor/1st respondent is not brought on record, he suffers loss to the extent of their right over the share of respondent Nos.2 to 5. This Court also, should not lose the sight of well settled principle that the main object of the rule is to prevent multiplicity of litigation. It is therefore necessary that the person must be directly or legally administered in the action in the answer inasmuch as that litigation may lead to result which will affect him legally i.e., by curtailing his legal rights. 15. A perusal of the judgment relied by the learned counsel for the respondents referred supra, more so the facts in the present case are somewhat alike where in the said suit the intervener has been allowed to come on record as party defendant merely holding that mere addition of the intervener as a party will not create an interest in the suit property. In the considered view of this Court, the presence of the intervener is necessary for efficacious adjudication of the case and addition is also necessary for avoidance of multiplicity of suit. The said principle laid in the said judgment can be taken into consideration to the facts on hand. 16. Ultimately, the petitioner plaintiff’s rights accrued will not affect. It is in the share of respondent Nos.2 to 5 only some right has been accrued on the 1st respondent. The Court below has rightly dealt the application. 10 No grounds have been raised warranting interference of this Court and the Civil Revision Petition is liable to be dismissed. 17. Accordingly, the Civil Revision Petition is dismissed. The trial Court is directed to adjudicate the final decree proceedings as expeditiously as possible. There shall be no order as to costs. As a sequel, miscellaneous applications, pending if any, shall stand closed. _____________________________ JUSTICE RAVI CHEEMALAPATI Date: 31st March, 2026 RKS