PALLAPU MOHANARAO Vs. THAMMISETTY SUBBA RAO

JUDGEMENT

(1.) The 1st Respondent filed O.S. No. 229 of 2005 in the Court of Principal Senior Civil Judge, Ongole, against the Respondents 2 and 3 for the relief of specific performance of agreement of sale in respect of the suit schedule property, a rice mill. Petitioners 2 to 4 are the children, and Petitioner No. 5 is the wife of the 2nd Respondent, i.e. the 1st Defendant. They filed I.A. No. 520 of 2008 under Order 1 Rule 10 Code of Civil Procedure, with a prayer to implead them as Defendants. It is pleaded that the 2nd Respondent herein colluded with the 1st Respondent, the Plaintiff, who is none other than his brother-in-law and got filed the suit, to knock away the joint family property. They also stated that the alleged agreement of sale is inoperative in law. Reference was made to a decree dated 25-01-2008 in O.S. No. 102 of 2007 passed by the Court of Additional Senior Civil Judge, Ongole, for partition between themselves and the Respondents 2 and 3, in respect of various items, including the suit schedule property in O.S. No. 229 of 2005.

(2.) The application was opposed by the 1st Respondent. He pleaded that the Petitioners are neither proper nor necessary parties and that the application is filed only with an object of protracting the proceedings. The trial Court dismissed the I.A., by placing reliance upon the judgment of the Supreme Court in Kasturi v. Iyyamperumal, 2005 AIR(SC) 2813.

(3.) Sri M.R.S. Srinivas, learned Counsel for the Petitioners submits that the view taken by the trial Court is not correct, and that the subsequent judgment of the Supreme Court in Sumtibal v. Paras Finance Company, 2007 AIR(SC) 3166 holds good. He contends that it is only when the proposed party does not have any right or interest whatever, that an application to get himself impleaded in a suit for specific performance can be rejected. Learned Counsel submits that by virtue of there being properties of the joint family, and the beneficiaries under a preliminary decree, passed in O.S. No. 229 of 2005, the Petitioners are necessary parties.