AKULA SESHAMMA Vs. P ESWARALAH

JUDGEMENT

(1.) This common order shall dispose of both the CRPs. as the questions of law and fact are common to both. C.R.P. No.2732 of 2000 is filed against the order dated 23-6-2000 in LA. No.114 of 2000 in O.S. No.4 of 2000 and C.R.P. No.2749 of 2000 is filed against the order dated 23-6-2000 in LA. No.116 of 2000 in O.S. No.31 of 1995 on the file of the Court of the Senior Civil Judge, Rajampet. By these impugned orders, the lower Court ordered to implead one Akula Seshamma, wife of late Akula Subbarayudu, the first respondent in both the CRPs. as party defendant to O.S. No.4 of 2000 as well as O.S. No.31 of 1995. The impugned orders are assailed in these CRPs. as vitiated by improper exercise of jurisdiction vested in the trial Court under Order 1 Rule 10(2) of the Code of Civil Procedure, 1908 ('CPC' for brevity).

(2.) Succinctly stated, the facts in brief are as follows: The petitioners in C.R.P. No.2749 of 2000 filed O.S. No.31 of 1995 on the file of the Court of the Senior Civil Judge, Rajampet for specific performance of registered agreement of sale dated 19-10-1991 in respect of a cinema theatre called "Lakshmi Paradise" in Kodur town. The suit was filed against Akula Krishna Murthy (died during the pendency of the suit) and his two sons, Akula Girish Khanna and Akula Rajesh Khanna (respondents 2 and 3 herein). It was pleaded in the suit that Akula Krishna Murthy and his two sons received an advance of Rs.2 lakhs and executed the suit agreement of sale under which the petitioners are required to pay the balance of Rs.4 lakhs on or before 19-4-1993. In the written statement filed by the defendants, the plea is one of cancellation of agreement. Be that as it may, Akula Krishna Murthy died on 20-2-1999. Therefore, the petitioners/plaintiffs filed an application under Order 22, Rule 4 CPC to bring the legal representatives of Akula Krishna Murthy. As his two sons were already on record as defendants 2 and 3, the wife, another son and another daughter of late Krishna Murthy were only added as legal representatives of the deceased, first defendant. In the meanwhile, as the cinematography licence was cancelled by the Joint Collector, Akula Girish Khanna filed a writ petition being W.P. No.19695 of 1999 before this Court. He also filed a suit being O.S. No.277 of 1999 on the file of the Court of the Junior Civil Judge, Rajampet against the first petitioner herein, his mother and two brothers for perpetual injunction alleging that the defendants are interfering with the management of the theatre by him. This Court disposed of the writ petition referred to hereinabove directing the transfer of O.S.No.277 of 1999 on the file of the Court of the Junior Civil Judge, Rajampet to the Court of the Senior Civil Judge, Rajampet to be tried along with O.S. No.31 of 1995 filed by the petitioners for specific performance of agreement of sale. At this stage, the first respondent Akula Seshamma filed the two interlocutory applications mentioned at the beginning of this order under Order 1 Rule 10(2) CPC. She claimed that she is a necessary party to both the suits and prayed to be impleaded as a defendant.

(3.) At this juncture, it is necessary to notice the case of the first respondent herein. She is the wife of one Akula Subbarayudu who is the original owner of Lakshmi Paradise theatre, which is his self-acquired property. According to her, Akula Subbarayudu died on 24-11-1982 bequeathing all his self acquired properties including the theatre to her under a registered Will dated 19-8-1982; that after his death she filed a suit being O.S. No.34 of 1983 on the file of the Court of the Subordinate Judge, Cuddapah against her two sons (sons of late Subbarayudu) Akula Krishna Murthy and Akula Bhaskar for declaration of title to the property and for delivery of possession, that as the two sons played fraud and filed a compromise Memo in the suit and having come to know of the same she got the compromise decree cancelled on the grounds of fraud and misrepresentation; and that ultimately O.S. No.34 of 1983 was decreed in her favour on 27-9-1999 declaring her title to Lakshmi Paradise theatre as well as other properties. Therefore, she claimed that she is a necessary party to both the suits and sought for impleadment under Order 1 Rule 10(2) CPC. The applications were opposed by the petitioners herein on the ground that in O.S. No.34 of 1983 she relinquished all her rights in respect of the theatre in question and as on the date of registered agreement of sale, she had no title or interest to the property and therefore she is not a proper or necessary party. The Court below came to a conclusion that being the legal heir of deceased Akula Subbarayudu and also the legatee under the registered Will dated 19-8-1982, her presence is necessary for effective and complete adjudication of the lis in both the suits and accordingly allowed her applications. Aggrieved by the two separate orders, these two CRPs. are filed.