APHC010261082012 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3573] FRIDAY,THE THIRTEENTH DAY OF MARCH TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE BALAJI MEDAMALLI CIVIL REVISION PETITION NO: 5029/2012 Between: 1. VIVEKANANDA VIDYA SAMSTHA SOCIETY, VINUKONDA,, REP. BY ITS SECRETARY AND CORRESPONDENT, SAYYAD RAFIQ AHAMMAD, S/O. ABDUL SALAM, R/O. VINUKONDA TOWN AND MANDAL, GUNTUR DISTRICT. ...PETITIONER AND 1. SHAIK KHAJA, W/O. NANNE SAHEB, R/O.PEDANASAR BAZAAR VINUKONDA TOWN, GUNTUR DISTRICT. 2. SHAIK MAHABOOB BASHA, S/O. YUNIS R/O. D.NO. 11041, OPP: TO RANUHUSSAINPANJA VINUKONDA, GUNTUR DISTRICT (RR NO. 2 NOT NECESSARY PARTY TO THIS CRP ...RESPONDENT(S): Counsel for the Petitioner: 1. SATYANARAYANA NIMMALA Counsel for the Respondent(S): 1. BM,J C.R.P.No.5029 of 2012 SUBMITTED FOR APPROVAL: THE HONOURABLE SRI JUSTICE BALAJI MEDAMALLI 1. Whether Reporters of Local Newspapers may be allowed to see the Judgment? Yes/No 2. Whether the copy of Judgment may be marked to Law Reporters/Journals? Yes/No 3. Whether His Lordship wish to Yes/No see the fair copy of the Judgment? ______________________________ JUSTICE BALAJI MEDAMALLI BM,J C.R.P.No.5029 of 2012 * THE HONOURABLE SRI JUSTICE BALAJI MEDAMALLI + CIVIL REVISION PETITION NO: 5029/2012 % 13.03.2026 # Between: 1. VIVEKANANDA VIDYA SAMSTHA SOCIETY ...PETITIONER AND 1. SHAIK KHAJA, W/O. NANNE SAHEB And Others ...RESPONDENT(S): ! Counsel for the Petitioner(s) : Sri Satyanarayana Nimmala ^ Counsel for Respondent(S): < Gist: > Head Note: ? Cases referred: (2008) 13 SCC 658 (1996) 10 SCC 53 2026 SCC Online SC 4 BM,J C.R.P.No.5029 of 2012 The Court made the following ORDER : The Civil Revision Petition is filed against the Order dated 14.08.2012 passed in I.A.No.1019 of 2010 in O.S.No.120 of 2010 on the file of learned Additional Senior Civil Judge, Narasaraopet in allowing the petition seeking to implead the 1st respondent herein as 2nd defendant in the suit. 2. Heard learned counsel for the petitioner. Though notices were served on the respondents, none entered appearance. 3. The brief facts of the case is that the suit in O.S.No.120 of 2010 was filed for specific performance of an agreement for sale dated 28.03.2003 executed by the 2nd respondent herein in favour of the petitioner herein. During the pendency of the said suit, the 1st respondent herein filed the above said application before the trial Court claiming right in the suit schedule property and alleging that the said suit was filed by the plaintiff against the defendant in collusion with the 2nd respondent for unlawful gain and without any manner of right over the property. It was alleged that the suit schedule property was originally belongs to Syed Khatunbi wife of Nabisa. That the said Khatunbi was her mother-in-law. Shaik Ayub is her nephew and the 1st defendant in the suit is the son of Shaik Yunus who is the brother of late Shaik Ayub. The schedule mentioned property was declared to be the property of late Shaik Ayub from his ancestors and the said Ayub died unmarried and intestate leaving behind his entire family members as his legal heirs. It was further contended that he was looked after by the 1st BM,J C.R.P.No.5029 of 2012 respondent herein, he orally promised to give a share in the said property as per Shariyat law as such she is the distant kindred of class IV and claims to have 1/3rd share in the suit schedule property as per the inheritance of Muslim law. 4. The said application filed by the 1st respondent was resisted by the plaintiff denying the allegations of collusion and the right claimed by the 1st respondent herein and further contended that the suit is for specific performance of an agreement for sale and she is not a proper and necessary party to the said suit as the same is based on a contract between the plaintiff and the 2nd respondent herein. After hearing both the parties, the learned trial Court, vide order dated 14.08.2012, allowed the petition and the operative portion of the order reads as under: “As per the averments of the petition affidavit, it is the contention of plaintiff that the proposed respondents 2 to 11 obtained documents in their favour from the 1st respondent regarding the schedule properties and the said litigation only to create and the said documents are nominal documents. To avoid multifarious litigation, it is just and necessary to add them as parties to the suit. On perusal of the material on record, the proposed respondents R-2 to R-11 are necessary parties to the suit litigation since some registered sale deeds executed in their favour By 1 defendant and to avoid multifarious litigation, it is just and necessary to allow the petition in the interest of justice. On the other hand, no prejudice will be caused to the 1st respondent, if the petition is allowed land it is open to the both the parties to establish their respective contention to support their case. I do not found any valid reason to BM,J C.R.P.No.5029 of 2012 dismiss the petition.” 5. Aggrieved by the said order of the trial court, the revision petitioner/ plaintiff filed the present Civil Revision Petition. 6. Learned counsel for the petitioner contended that the 1st respondent herein filed an application under Order I Rule 10 seeking to implead her as a party defendant in the suit without asserting any right or title in the suit schedule property and also without there being any material to establish even a semblance of right in the suit schedule property. He further contended that the learned Judge without considering the fact that the suit was filed basing on a contract between the petitioner and the 2nd respondent herein and the said application for impleadment of the other respondent Nos.2 to 11 were the subsequent purchasers and the said application was filed by the plaintiff himself. Without taking into account that there is no privity of contract between the petitioner and implead petitioner, erroneously allowed the petition. As the suit is for specific performance of an agreement, the proposed implead petitioner/ 1st respondent herein is neither a proper nor a necessary party to the suit proceedings. In support of his contentions, learned counsel for the petitioner placed reliance on judgment of the Hon’ble Apex Court reported in Bharat Karsondas Thakkar Vs Kiran Construction Company and Others1, wherein the relevant portion is extracted hereunder. 1 (2008) 13 SCC 658 BM,J C.R.P.No.5029 of 2012 28. Along with that is the other question, which very often raises its head in suits for specific performance, that is, whether a stranger to an agreement for sale can be added as a party in a suit for specific performance of an agreement for sale in view of Section 15 of the Specific Relief Act, 1963. The relevant provision of Section 15 with which we are concerned is contained in clause (a) thereof and entitles any party to the contract to seek specific performance of such contract. Admittedly, the appellant herein is a third party to the agreement and does not, therefore, fall within the category of “parties to the agreement”. The appellant also does not come within the ambit of Section 19 of the said Act, which provides for relief against parties and persons claiming under them by subsequent title. This aspect of the matter has been dealt with in detail in Kasturi case [(2005) 6 SCC 733] . While holding that the scope of a suit for specific performance could not be enlarged to convert the same into a suit for title and possession, Their Lordships observed that a third party or a stranger to the contract could not be added so as to convert a suit of one character into a suit of a different character. 29. In the instant case, the appellant obtained the consent decree on the strength of an agreement said to have been entered into between the Vaitys and K.L. Danani who brought the said agreement to the partnership which was formed by him with two other persons. Although this fact was brought to the notice of the learned advocates for Respondent 1 on 27-3-1984, no steps were taken by the said respondent to amend the plaint at that stage. Instead, Respondent 1 waited till a consent decree was passed before applying for amendment of the plaint. 30. The proper course of action for Respondent 1 would have been to challenge the consent decree not in its suit for specific performance, but in a separate suit for declaration that the consent decree ought not to have been passed and the same was not binding on the respondent. By seeking amendment of the plaint in its suit for specific performance, Respondent 1 has created its own difficulties by substantially changing the nature and character of the original suit, which is not permissible in law. If, as was held in Durga Prasad case [(1953) 2 SCC 509 : AIR 1954 SC 75] the impleadment of the appellant was only for the purpose of joining him in the conveyance if Respondent 1's suit ultimately succeeded, the ratio of the said decision would possibly have been applicable to the facts of this case. Unfortunately, that is not the case here, since Respondent 1 has by amending the plaint prayed for a declaration that the consent decree obtained by the appellant was not binding on him and also for a declaration that the consent BM,J C.R.P.No.5029 of 2012 decree was null and void and was liable to be quashed. 31. In our view, the decision of this Court in Durga Prasad case [(1953) 2 SCC 509 : AIR 1954 SC 75] cannot be brought to the aid of the case made out by Respondent 1. Furthermore, the Division Bench of the High Court also appears to have committed an error in observing that the decision in Anil Kumar Singh case [(1995) 3 SCC 147] was not applicable to the facts of this case, despite the fact that on a consideration of the provisions of Order 1 Rule 10 and Order 22 Rule 10 of the Code, this Court held that since the plaintiff in the said matter was merely seeking the specific performance of an agreement of sale, any attempt to implead a third party to the contract in the suit would be hit by the provisions of Section 15(a) of the Specific Relief Act, 1963. In fact, in Anil Kumar Singh case [(1995) 3 SCC 147] in a suit for specific performance, the respondent, who was not a party to the contract but wanted to be impleaded as a defendant on the ground that he had acquired subsequent interest as a co-owner by virtue of a decree obtained from the court, was held not entitled to be joined as a defendant either under Order 1 Rule 3 or under Order 1 Rule 10(ii) of the Code having regard to the provisions of Sections 15 and 6 of the Specific Relief Act, 1963. 7. Placing reliance on the above, it was contended that the plaintiff, being the dominus litis, is seeking specific performance of an agreement for sale, and any attempt to implead a third party to the contract in the suit would be hit by the provisions of Section 15(a) of the Specific Relief Act, 1963 and it would widen the scope of the suit which would also change the very nature of the suit. 8. Learned counsel for the petitioner also placed reliance on another judgment reported in Vijay Pratap and Others Vs Sambhu Saran Sinha and Others2, “2. The trial court accordingly held that the petitioners are neither 2 (1996) 10 SCC 53 BM,J C.R.P.No.5029 of 2012 necessary nor proper parties to the suit. On revision, the High Court upheld the same. Shri Sanyal, the learned counsel for the petitioners contended that their father had not signed the relinquishment deed and the signatures appended to it were not that of him. The deed of relinquishment said to have been signed by the father of the petitioners was not genuine. These questions are matters to be taken into consideration in the suit before the relinquishment deed and compromise memo between the other contesting respondents were acted upon and cannot be done in the absence of the petitioners. The share of the petitioners will be affected and, therefore, it would prejudice their right, title and interest in the property. We cannot go into these questions at this stage. The trial court has rightly pointed that the petitioners are necessary and proper parties so long as the alleged relinquishment deed said to have been signed by the deceased father of the petitioners is on record. It may not bind petitioners but whether it is true or valid or binding on them are all questions which in the present suit cannot be gone into. Under those circumstances, the courts below were right in holding that the petitioners are not necessary and proper parties but the remedy is elsewhere. If the petitioners have got any remedy it is open to them to avail of the same according to law.” The Hon’ble Apex Court in the above said judgment held that unless if the party is found to be a proper or necessary party, cannot be impleaded as party to a suit. Whereas in the instant case, the 1st respondent is a non party to the contract and no material is placed on record before the trial court to come to conclusion she is a proper and necessary party to the suit particularly in a suit for specific performance between the parties to the contract and the remedies of the non parties are elsewhere. 9. Similarly, the Hon’ble Apex Court in the case of Nak Engineering Company Private Limited Vs Tarun Keshrichand Shah and others3 held that the plaintiffs are dominus litis and it is for them to choose their 3 2026 SCC Online SC 4 BM,J C.R.P.No.5029 of 2012 adversaries. Plaintiff cannot be compelled to add a party to defend a suit against their wishes. It was further held that a decree, if any, passed in the suit would be binding only between the parties to the said suit and would not infringe upon any right of third party. This decision thus clarifies the aspect that who constitutes necessary and proper parties in the suit. The Hon’ble Apex Court in the aforesaid judgment held as under. 33. The fundamental distinction between a “necessary party” and a “proper party” was succinctly explained in Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay, wherein this Court held: “6… A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.” 34. In Kasturi v. Iyyamperumal, this Court crystallized the twin tests for a necessary party: “…the question of jurisdiction of the court to invoke Order 1 Rule 10 CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct and legal interest in the controversy involved in the suit. … two tests are to be satisfied for determining the question as to who is a necessary party. The tests are : (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party.” 35. This principle has been consistently reiterated. In Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd., this Court reiterated: “15. 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 BM,J C.R.P.No.5029 of 2012 upon all matters in dispute 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.” 36. Thereafter, in Vidur Impex & Traders (P) Ltd. v. Tosh Apartments (P) Ltd., the broad principles governing impleadment were summarized: “41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court. 41.3. A proper party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made. 41.4. If a person is not found to be a proper or necessary party, the court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.” 37…… 38…… 39. This apart, the respondent Nos. 1 and 2 who have instituted the suit are dominus litis and it is for them to choose their adversaries. If they do not array the proper and necessary parties to the suit, they do it at their own risk. However, they cannot be compelled to add a party to defend a suit against their wishes. The decree, if any, passed in the suit would be binding only between the parties to the suit and would not infringe upon any right of a third party, much less of the appellant that is not a party to the suit. 40. This conclusion is reinforced by the fundamental principle laid down in Kanaklata Das v. Naba Kumar Das9, wherein this Court has observed: “11.4. …the plaintiff being a dominus litis cannot be compelled to make any third person a party to the suit, be that a plaintiff or the defendant, against his wish unless such person is able to prove that he is a necessary party to the BM,J C.R.P.No.5029 of 2012 suit and without his presence, the suit cannot proceed and nor can be decided effectively. In other words, no person can compel the plaintiff to allow such person to become the co- plaintiff or defendant in the suit. It is more so when such person is unable to show as to how he is a necessary or proper party to the suit and how without his presence, the suit can neither proceed and nor it can be decided or how his presence is necessary for the effective decision of the suit. 11.5. … a necessary party is one without whom, no order can be made effectively, a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.” 10. It is clear from the order that the trial court without assigning any reasons for impleading the 1st respondent, only on the ground that the other respondents were impleaded at the instance of the plaintiff, allowed the application of the 1st respondent. That apart, there is no material to show the infringement of her right. Thus, 1st respondent cannot be called as neither a proper nor a necessary party to the proceedings. The trial court allowed the application for impleading her as defendant in the said suit only on the ground to avoid multifarious litigation which alone cannot be the basis to allow the present application. Even assuming, if she has any right over the property or if her rights are infringed, she has a remedy to seek appropriate relief in that regard against the persons concerned. Without resorting to the same and without there being privity of contract either with the plaintiff or with the 1st defendant in the suit, it cannot be said to be a proper or necessary party to the proceedings. Therefore, the order of the trial court in allowing the application filed by the 1st respondent is unsustainable in law, as such the revision petition is liable to be allowed. BM,J C.R.P.No.5029 of 2012 11. Accordingly, the Civil Revision Petition is allowed. Consequently, Order dated 14.08.2012 passed in I.A.No.1019 of 2010 in O.S.No.120 of 2010 on the file of learned Additional Senior Civil Judge, Narasaraopet is set aside. As the suit is of the year 2010, it is appropriate to direct the trial court to conclude the trial at the earliest, preferably within a period of not more than six months from the date of receipt of a copy of this order. There shall be no order as to costs. As a sequel, miscellaneous applications, pending if any, shall stand closed. __________________________ JUSTICE BALAJI MEDAMALLI Date: 13.03.2026 Dvs BM,J C.R.P.No.5029 of 2012 THE HONOURABLE SRI JUSTICE BALAJI MEDAMALLI CIVIL REVISION PETITION NO: 5029/2012 Dt: 13.03.2026 Dvs