JOGANI MALLAIAH Vs. Y SURESH BABU

JUDGEMENT

(1.) Though the civil miscellaneous appeal is of the year 2007, when the application CMA MP No.528 of 2007 was moved to vacate the interim order dated 23-2-2007, since urgency was pleaded by Sri M.V.S. Suresh Kumar, the matter was directed to appear in the list for final hearing on 26-4-2007 and after a couple of adjournments the matter is coming up before this Court today for final hearing.

(2.) The present civil miscellaneous appeal is filed by the appellant-plaintiff, R1 in AS No.66 of 2006 on the file of II Additional District Judge, Ranga Reddy District, N.T.R. Nagar, Hyderabad, being aggrieved of an order of remand made thereunder. The appellants in AS No.66 of 2006 referred to supra are non-parties to OS No.338 of 1999 on the file of the Principal Junior Civil Judge, West and South, Ranga Reddy District, N.T.R. Nagar. It is stated that with the leave of the Court the appeal had been preferred and the learned Judge after recording certain reasons had set aside the decree and judgment made in OS No.338 of 1999 dated 31-1-2005 and the matter was remanded permitting the appellants therein, the third parties, to come on record in the place of the first defendant as defendants, as they purchased the property from him during the pendency of the suit and give them an opportunity to file written statement to cross-examine PWs.1 to 3 and to adduce evidence in support of their contention. No doubt, certain other directions also had been made. Aggrieved by the said order of remand, the civil miscellaneous appeal is preferred.

(3.) Contentions of Sri N. Ranga Rao: Sri N. Ranga Rao, learned Counsel representing the appellant-plaintiff-R1 in AS No.66 of 2006 referred to supra made the following submissions. The learned Counsel would maintain that this is a suit instituted by the plaintiff for the relief of perpetual injunction and the Counsel also would maintain that the suit is being one concerned with personal action, there is no cause of action as against this non- parties to the litigation and when that being so, such plaintiff cannot be forced to fight the litigation as against such non-parties. The Counsel also would submit that even otherwise these parties contend that they are purchased pendente lite and in view of the fact of lis pendens, Section 52 of the Transfer of Property Act, 1882, being applicable such parties cannot be brought on record even under Order 1 Rule 10(2) of the Code of Civil Procedure (hereinafter in short referred to as 'the Code' for the purpose of convenience) or under any other provision under the said Code. While further elaborating the submissions, the Counsel also pointed out to the relevant portion of the findings of the appellate Court and also by the Court of first instance and would maintain that in such personal action it cannot be said there is any devolution as such, at the best, such parties may be permitted to agitate their rights by instituting a separate suit and not by circumventing the procedure by permitting them to prefer an appeal and making an order of remand. The Counsel also would point out that even if the identity of the property to be carefully examined, absolutely there is no conflict, since the property covered by the suit is not the property which is being claimed by the present non-parties to the litigation and even on that ground the present civil miscellaneous appeal to be allowed. The learned Counsel placed strong reliance on certain decisions to substantiate his submissions.