DELHI HIGH COURT
GYANENDER PRASAD TEWARI VS. OM PRAKASH & ANR.
DATED : 26.11.2007
Summarised
Judgement (Scroll for Complete Judgement)
Judgement (Scroll for Complete Judgement)
Facts
of the Case:
of the Case:
Material allegations in the plaint are
that the defendant represented to the plaintiff that he is the sole and
exclusive owner of the the suit property on the basis of a registered Will
dated 13.2.1980 executed by the father of the defendant bequeathing the suit
property in favor of the defendant and his elder brother i.e. the petitioner
and that a relinquishment deed dated 28.5.90 was executed by the petitioner
relinquishing all his rights and interest in the suit property in favor of the
defendant.
that the defendant represented to the plaintiff that he is the sole and
exclusive owner of the the suit property on the basis of a registered Will
dated 13.2.1980 executed by the father of the defendant bequeathing the suit
property in favor of the defendant and his elder brother i.e. the petitioner
and that a relinquishment deed dated 28.5.90 was executed by the petitioner
relinquishing all his rights and interest in the suit property in favor of the
defendant.
That original Will and the
Relinquishment Deed were delivered by the defendant to the plaintiff. That
after delivery of the said documents and believing the representation made by
the defendant pertaining to the ownership of the suit property to be true the plaintiff
entered into an agreement to sell dated 18.6.90 with the defendant for the sale
of suit property for a total sale consideration of Rs.4,00,000/-.
Relinquishment Deed were delivered by the defendant to the plaintiff. That
after delivery of the said documents and believing the representation made by
the defendant pertaining to the ownership of the suit property to be true the plaintiff
entered into an agreement to sell dated 18.6.90 with the defendant for the sale
of suit property for a total sale consideration of Rs.4,00,000/-.
That pursuant to the said agreement a
sum of Rs.1,95,000/- was paid by the plaintiff to the defendant. That the
balance sale consideration was to be paid by the plaintiff at the time of the
execution and registration of the sale deed. That the defendant failed to
perform its part of the obligations under the agreement. That the plaintiff was
always ready and willing to perform its obligations under the agreement.
sum of Rs.1,95,000/- was paid by the plaintiff to the defendant. That the
balance sale consideration was to be paid by the plaintiff at the time of the
execution and registration of the sale deed. That the defendant failed to
perform its part of the obligations under the agreement. That the plaintiff was
always ready and willing to perform its obligations under the agreement.
Observation
of Court:
of Court:
That the applicant further submits that
the suit property is an undivided property wherein the applicant/defendant and
the elder brother of the defendant have got rights over the suit property as
such the defendant cannot dispose off the property unilaterally and the
plaintiff cannot claim any rights as falsely made out in the plaint.
the suit property is an undivided property wherein the applicant/defendant and
the elder brother of the defendant have got rights over the suit property as
such the defendant cannot dispose off the property unilaterally and the
plaintiff cannot claim any rights as falsely made out in the plaint.
That as explained in detail in the
application under Section 340 CrPC, that the applicant and his brother have
undivided share and the defendant’s brother has not executed any relinquishment
deed as fabricated by the plaintiff and the defendant’s elder brother has
neither executed any relinquishment deed nor they have entered into any sort of
agreement with respect to the suit property either among themselves nor with
the plaintiff.
application under Section 340 CrPC, that the applicant and his brother have
undivided share and the defendant’s brother has not executed any relinquishment
deed as fabricated by the plaintiff and the defendant’s elder brother has
neither executed any relinquishment deed nor they have entered into any sort of
agreement with respect to the suit property either among themselves nor with
the plaintiff.
That the plaintiff with vested interest
has filed the above suit to commit a fraud on the defendant as well as with the
applicant or they might be committing fraud in collusion with the applicant to
rob of his valuable property.
has filed the above suit to commit a fraud on the defendant as well as with the
applicant or they might be committing fraud in collusion with the applicant to
rob of his valuable property.
That the alleged Relinquishment Deed
dated 28.05.1990 is a forged and the applicant has never executed any such
Relinquish Deed in favor of the defendant which is produced by plaintiff which
is also on the record.
dated 28.05.1990 is a forged and the applicant has never executed any such
Relinquish Deed in favor of the defendant which is produced by plaintiff which
is also on the record.
After considering the respective stands
of the parties, vide impugned order dated 19.07.06 the learned Trial Judge had
dismissed the said applications.
of the parties, vide impugned order dated 19.07.06 the learned Trial Judge had
dismissed the said applications.
Judgement:
In
view of the above discussion I hold that the petitioner is entitled to be imp
leaded as a defendant in the present suit. The impugned order dated 19.07.06 is
set aside. Application for impleadment of the petitioner is allowed.
view of the above discussion I hold that the petitioner is entitled to be imp
leaded as a defendant in the present suit. The impugned order dated 19.07.06 is
set aside. Application for impleadment of the petitioner is allowed.
—————————————————
DELHI HIGH COURT
GYANENDER PRASAD TEWARI VS. OM PRAKASH & ANR.
DATED : 26.11.2007
Author : P Nandrajog
Bench : P Nandrajog
JUDGMENT Pradeep
Nandrajog, J.
Nandrajog, J.
1. Vide impugned order
dated 19.7.06 applications filed by the petitioner Gyanendra Prasad Tiwari and
respondent No.2 Subhash Kumar Tiwari under Order I Rule 10 of the Code of Civil
Procedure seeking impleadment of the petitioner as a defendant has been
dismissed.
dated 19.7.06 applications filed by the petitioner Gyanendra Prasad Tiwari and
respondent No.2 Subhash Kumar Tiwari under Order I Rule 10 of the Code of Civil
Procedure seeking impleadment of the petitioner as a defendant has been
dismissed.
2. Relevant facts to be
noted for the purpose of adjudication of the matter in issue within the
confines of Order I Rule 10 CPC are that the respondent no.2 (hereinafter
referred to as the plaintiff) filed a suit for specific performance of an
agreement to sell dated 18.6.90 with possession of plot bearing Municipal
No.325, Deepali, Pitam Pura, Delhi (hereinafter referred to as the suit
property) against the respondent no.2 (hereinafter referred to as the
defendant).
noted for the purpose of adjudication of the matter in issue within the
confines of Order I Rule 10 CPC are that the respondent no.2 (hereinafter
referred to as the plaintiff) filed a suit for specific performance of an
agreement to sell dated 18.6.90 with possession of plot bearing Municipal
No.325, Deepali, Pitam Pura, Delhi (hereinafter referred to as the suit
property) against the respondent no.2 (hereinafter referred to as the
defendant).
3. Material allegations
in the plaint are that the defendant represented to the plaintiff that he is
the sole and exclusive owner of the the suit property on the basis of a
registered Will dated 13.2.1980 executed by the father of the defendant
bequeathing the suit property in favor of the defendant and his elder brother
i.e. the petitioner and that a relinquishment deed dated 28.5.90 was executed
by the petitioner relinquishing all his rights and interest in the suit
property in favor of the defendant. That original Will and the Relinquishment
Deed were delivered by the defendant to the plaintiff.
in the plaint are that the defendant represented to the plaintiff that he is
the sole and exclusive owner of the the suit property on the basis of a
registered Will dated 13.2.1980 executed by the father of the defendant
bequeathing the suit property in favor of the defendant and his elder brother
i.e. the petitioner and that a relinquishment deed dated 28.5.90 was executed
by the petitioner relinquishing all his rights and interest in the suit
property in favor of the defendant. That original Will and the Relinquishment
Deed were delivered by the defendant to the plaintiff.
That after delivery of
the said documents and believing the representation made by the defendant
pertaining to the ownership of the suit property to be true the plaintiff
entered into an agreement to sell dated 18.6.90 with the defendant for the sale
of suit property for a total sale consideration of Rs.4,00,000/-. That pursuant
to the said agreement a sum of Rs.1,95,000/- was paid by the plaintiff to the
defendant. That the balance sale consideration was to be paid by the plaintiff
at the time of the execution and registration of the sale deed. That the
defendant failed to perform its part of the obligations under the agreement.
That the plaintiff was always ready and willing to perform its obligations
under the agreement.
the said documents and believing the representation made by the defendant
pertaining to the ownership of the suit property to be true the plaintiff
entered into an agreement to sell dated 18.6.90 with the defendant for the sale
of suit property for a total sale consideration of Rs.4,00,000/-. That pursuant
to the said agreement a sum of Rs.1,95,000/- was paid by the plaintiff to the
defendant. That the balance sale consideration was to be paid by the plaintiff
at the time of the execution and registration of the sale deed. That the
defendant failed to perform its part of the obligations under the agreement.
That the plaintiff was always ready and willing to perform its obligations
under the agreement.
4. In the written
statement filed by the defendant it was pleaded that the documents namely
agreement to sell dated 18.6.90, will dated 13.2.80 and relinquishment deed
dated 28.5.90 which formed the basis of the plaintiff’s suit are forged and
fabricated. That the defendant was not the sole and exclusive owner of the suit
property. That the defendant and the petitioner were joint owners of the suit
property. Relevant portions of the written statement of the defendant read as
under:
statement filed by the defendant it was pleaded that the documents namely
agreement to sell dated 18.6.90, will dated 13.2.80 and relinquishment deed
dated 28.5.90 which formed the basis of the plaintiff’s suit are forged and
fabricated. That the defendant was not the sole and exclusive owner of the suit
property. That the defendant and the petitioner were joint owners of the suit
property. Relevant portions of the written statement of the defendant read as
under:
PRELIMINARY OBJECTIONS:
5. That the present
suit has been filed by the plaintiff on the basis of false and forged documents
which were never executed/handed over by the defendant to the plaintiff within
his own knowledge, therefore, the present suit is liable to be dismissed.
suit has been filed by the plaintiff on the basis of false and forged documents
which were never executed/handed over by the defendant to the plaintiff within
his own knowledge, therefore, the present suit is liable to be dismissed.
7. That even otherwise
the defendant being only the legal heir of Late Sh. Jagannath Prasad Tiwari and
having only undivided share in the ancestral suit property, discredit the grant
of relief of specific performance or possession or damages against him and in
favor of the plaintiff.
the defendant being only the legal heir of Late Sh. Jagannath Prasad Tiwari and
having only undivided share in the ancestral suit property, discredit the grant
of relief of specific performance or possession or damages against him and in
favor of the plaintiff.
REPLY ON MERITS:
5. That para 5 of the
plaint is wrong, baseless, concoted and emphatically denied. It is specifically
denied that it was represented to the plaintiff that the elder brother of the
defendant, namely, Sh. G.P. Tiwari had executed any relinquishment deed and muchless
one dated 28.5.90 in favor of the defendant or that the defendant became owner
of the suit plot as alleged. It is also particularly denied that the defendant
entered into any agreement to sell with the plaintiff as alleged. It is
respectfully submitted that no relinquishment deed was ever executed by Sh.
G.P. Tiwari in favor of the defendant and they are still joint owners of the
suit plot.
plaint is wrong, baseless, concoted and emphatically denied. It is specifically
denied that it was represented to the plaintiff that the elder brother of the
defendant, namely, Sh. G.P. Tiwari had executed any relinquishment deed and muchless
one dated 28.5.90 in favor of the defendant or that the defendant became owner
of the suit plot as alleged. It is also particularly denied that the defendant
entered into any agreement to sell with the plaintiff as alleged. It is
respectfully submitted that no relinquishment deed was ever executed by Sh.
G.P. Tiwari in favor of the defendant and they are still joint owners of the
suit plot.
5. Petitioner and
respondent no.2 filed two independant applications seeking impleadment of the
petitioner as a defendant by virtue of Sub-rule 2 of Rule 10 of Order I of the
Code of Civil Procedure.
respondent no.2 filed two independant applications seeking impleadment of the
petitioner as a defendant by virtue of Sub-rule 2 of Rule 10 of Order I of the
Code of Civil Procedure.
6. Substantially,
averments in the said applications are same as the averments made by the
defendant in his written statement.
averments in the said applications are same as the averments made by the
defendant in his written statement.
7. Paras 4, 5 and 6 of
the application filed by the defendant read as under:
the application filed by the defendant read as under:
4. The
defendant/applicant further submits that the averments made in the plaint in
all and the documents produced by the plaintiff are all fabricated and
concocted. The defendant is also making a separate application under Section
340 Cr.P.C. setting out in detail all the relevant facts necessary for the
adjudication on the issues raised by the defendant in the present application
and the defense taken in the suit.
defendant/applicant further submits that the averments made in the plaint in
all and the documents produced by the plaintiff are all fabricated and
concocted. The defendant is also making a separate application under Section
340 Cr.P.C. setting out in detail all the relevant facts necessary for the
adjudication on the issues raised by the defendant in the present application
and the defense taken in the suit.
5. That the applicant
further submits that the suit property is an undivided property wherein the
applicant/defendant and the elder brother of the defendant have got rights over
the suit property as such the defendant cannot dispose off the property
unilaterally and the plaintiff cannot claim any rights as falsely made out in
the plaint.
further submits that the suit property is an undivided property wherein the
applicant/defendant and the elder brother of the defendant have got rights over
the suit property as such the defendant cannot dispose off the property
unilaterally and the plaintiff cannot claim any rights as falsely made out in
the plaint.
6. That as explained in
detail in the application under Section 340 CrPC, that the applicant and his
brother have undivided share and the defendant’s brother has not executed any
relinquishment deed as fabricated by the plaintiff and the defendant’s elder
brother has neither executed any relinquishment deed nor they have entered into
any sort of agreement with respect to the suit property either among themselves
nor with the plaintiff.
detail in the application under Section 340 CrPC, that the applicant and his
brother have undivided share and the defendant’s brother has not executed any
relinquishment deed as fabricated by the plaintiff and the defendant’s elder
brother has neither executed any relinquishment deed nor they have entered into
any sort of agreement with respect to the suit property either among themselves
nor with the plaintiff.
8. Paras 4, 5, 6 and 7
of the application filed by the petitioner read as under:
of the application filed by the petitioner read as under:
4. That by virtue of
above Will, the applicant is the owner of the one half share of the above suit
property measuring 400 sq. yards as mentioned and since the above suit is
pending disposal before this Hon’ble Court and applicant’s interest is involved
in the above suit property and applicant is necessary and interested party in
the above noted suit.
above Will, the applicant is the owner of the one half share of the above suit
property measuring 400 sq. yards as mentioned and since the above suit is
pending disposal before this Hon’ble Court and applicant’s interest is involved
in the above suit property and applicant is necessary and interested party in
the above noted suit.
5. That the defendant
has secretly and alone has no right whatsoever to sale the above suit property
without consulting the applicant and the plaintiff has also no right to
purchase the above suit property in which the applicant is the owner of the one
half share of the suit property.
has secretly and alone has no right whatsoever to sale the above suit property
without consulting the applicant and the plaintiff has also no right to
purchase the above suit property in which the applicant is the owner of the one
half share of the suit property.
6. That the plaintiff
with vested interest has filed the above suit to commit a fraud on the
defendant as well as with the applicant or they might be committing fraud in
collusion with the applicant to rob of his valuable property.
with vested interest has filed the above suit to commit a fraud on the
defendant as well as with the applicant or they might be committing fraud in
collusion with the applicant to rob of his valuable property.
7. That the alleged
Relinquishment Deed dated 28.05.1990 is a forged and the applicant has never
executed any such Relinquish Deed in favor of the defendant which is produced
by plaintiff which is also on the record.
Relinquishment Deed dated 28.05.1990 is a forged and the applicant has never
executed any such Relinquish Deed in favor of the defendant which is produced
by plaintiff which is also on the record.
9. After considering
the respective stands of the parties, vide impugned order dated 19.07.06 the
learned Trial Judge had dismissed the said applications.
the respective stands of the parties, vide impugned order dated 19.07.06 the
learned Trial Judge had dismissed the said applications.
10. In support of the
petition, learned Counsel for the petitioner had contended that the matter in
controversy in a suit has to be considered not only with reference to the case
set up in the plaint but even the defense set up in the written statement. It
was urged that the defendant has categorically pleaded that the documents
relied upon by the plaintiff are forged and fabricated and that the defendant
and petitioner are the joint owners of the suit property. That in view of the defense
taken by the defendant the petitioner is a necessary party and is entitled to
be imp leaded as a defendant in the suit as he would be affected by the
decision in the suit.
petition, learned Counsel for the petitioner had contended that the matter in
controversy in a suit has to be considered not only with reference to the case
set up in the plaint but even the defense set up in the written statement. It
was urged that the defendant has categorically pleaded that the documents
relied upon by the plaintiff are forged and fabricated and that the defendant
and petitioner are the joint owners of the suit property. That in view of the defense
taken by the defendant the petitioner is a necessary party and is entitled to
be imp leaded as a defendant in the suit as he would be affected by the
decision in the suit.
11. Per contra, learned
Counsel for the plaintiff/respondent no.1 had contended that a plaintiff is a
dominus litus and cannot be compelled to litigate against a person qua whom no
relief has been prayed for. Counsel further urged that the expression ‘all the
questions involved in the suit’ means only the questions or disputes between
the parties to the dispute and do not include a question or dispute between one
or more of the parties and a third party. That the petitioner is neither a
necessary nor a proper party, nor his presence is necessary before the Court in
order to enable the Court to effectually and completely adjudicate upon and
settle all questions involved in the suit.
Counsel for the plaintiff/respondent no.1 had contended that a plaintiff is a
dominus litus and cannot be compelled to litigate against a person qua whom no
relief has been prayed for. Counsel further urged that the expression ‘all the
questions involved in the suit’ means only the questions or disputes between
the parties to the dispute and do not include a question or dispute between one
or more of the parties and a third party. That the petitioner is neither a
necessary nor a proper party, nor his presence is necessary before the Court in
order to enable the Court to effectually and completely adjudicate upon and
settle all questions involved in the suit.
12. Learned Counsel for
the plaintiff relied upon the following authorities:
the plaintiff relied upon the following authorities:
i. Panne Khushali and
Anr. v. Jeewanlal Mathoo Khatik and Anr. : In said case, it was held that the
strangers to the contract making a claim adverse to the title of the defendant
(vendor) contending that they are the co-owners of the contracted property are
neither necessary nor proper party and are therefore not entitled to be joined
as parties to the suit.
Anr. v. Jeewanlal Mathoo Khatik and Anr. : In said case, it was held that the
strangers to the contract making a claim adverse to the title of the defendant
(vendor) contending that they are the co-owners of the contracted property are
neither necessary nor proper party and are therefore not entitled to be joined
as parties to the suit.
ii. Ram Bilash Pandey
and Ors. v. Jai Narayan Gupta and Ors. : In the said case, a suit for specific
performance of contract for sale entered into by certain members of a joint
Hindu family was filed. Other members of the family claimed to be imp leaded on
the ground that the property which was sought to be sold was joint family
property and that it was acquired with joint family funds. Noting the decision
in Panne Kushali’s case (supra) and the fact result of the decree even if
adverse to intervenors shall not bind the intervenors, it was held that the
members claiming to be imp leaded were neither necessary party nor proper party
to the suit and could not be given benefit of Order I Rule 10(2) of the CPC.
and Ors. v. Jai Narayan Gupta and Ors. : In the said case, a suit for specific
performance of contract for sale entered into by certain members of a joint
Hindu family was filed. Other members of the family claimed to be imp leaded on
the ground that the property which was sought to be sold was joint family
property and that it was acquired with joint family funds. Noting the decision
in Panne Kushali’s case (supra) and the fact result of the decree even if
adverse to intervenors shall not bind the intervenors, it was held that the
members claiming to be imp leaded were neither necessary party nor proper party
to the suit and could not be given benefit of Order I Rule 10(2) of the CPC.
iii. Anil Kumar Singh
v. Shivnath Mishra and Kasturi v. Iyyamperumal : In said cases, it was held
that the intervenors who are not party to the agreement of sale are not
necessary party to the suit for specific performance for the reason their
presence is not necessary in order to determine the dispute as to specific
performance.
v. Shivnath Mishra and Kasturi v. Iyyamperumal : In said cases, it was held
that the intervenors who are not party to the agreement of sale are not
necessary party to the suit for specific performance for the reason their
presence is not necessary in order to determine the dispute as to specific
performance.
13. Learned Counsel for
the petitioner relied upon the following judgments:
the petitioner relied upon the following judgments:
i. Sumtibai and Ors. v.
Paras Finance Co. JT 2007 (11) SC 749 : In said case, noting the decision in
Kasturi’s case (supra), the Supreme Court has observed as under:
Paras Finance Co. JT 2007 (11) SC 749 : In said case, noting the decision in
Kasturi’s case (supra), the Supreme Court has observed as under:
9. Learned Counsel for
the respondent relied on a three-Judge Bench decision of this Court in Kasturi
v. Iyyamperumal and Ors. He has submitted that in this case it has been held
that in a suit for specific performance of a contract for sale of property a
stranger or a third party to the contract cannot be added as defendant in the
suit. In our opinion, the aforesaid decision is clearly distinguishable.
the respondent relied on a three-Judge Bench decision of this Court in Kasturi
v. Iyyamperumal and Ors. He has submitted that in this case it has been held
that in a suit for specific performance of a contract for sale of property a
stranger or a third party to the contract cannot be added as defendant in the
suit. In our opinion, the aforesaid decision is clearly distinguishable.
In our
opinion, the aforesaid decision can only be understood to mean that a third
party cannot be imp leaded in a suit for specific performance if he has no
semblance of title in the property in dispute. Obviously, a busybody or interloper
with no semblance of title cannot be imp leaded in such a suit. That would
unnecessarily protract or obstruct the proceedings in the suit. However, the
aforesaid decision will have no application where a third party shows some
semblance of title or interest in the property in dispute….
opinion, the aforesaid decision can only be understood to mean that a third
party cannot be imp leaded in a suit for specific performance if he has no
semblance of title in the property in dispute. Obviously, a busybody or interloper
with no semblance of title cannot be imp leaded in such a suit. That would
unnecessarily protract or obstruct the proceedings in the suit. However, the
aforesaid decision will have no application where a third party shows some
semblance of title or interest in the property in dispute….
14. In view of the
aforesaid decisions we are of the opinion that Kasturi’s case (supra) is
clearly distinguishable. In our opinion it cannot be laid down as an absolute
proposition that whenever a suit for specific performance is filed by A against
B, a third party C can never be imp leaded in that suit. In our opinion, if C
can show a fair semblance of title or interest he can certainly file an
application for impleadment. To take a contrary view would lead to multiplicity
of proceedings because then C will have to wait until a decree is passed
against B, and then file a suit for cancellation of the decree on the ground
that A had no title in the property in dispute. Clearly, such a view cannot be
countenanced.
aforesaid decisions we are of the opinion that Kasturi’s case (supra) is
clearly distinguishable. In our opinion it cannot be laid down as an absolute
proposition that whenever a suit for specific performance is filed by A against
B, a third party C can never be imp leaded in that suit. In our opinion, if C
can show a fair semblance of title or interest he can certainly file an
application for impleadment. To take a contrary view would lead to multiplicity
of proceedings because then C will have to wait until a decree is passed
against B, and then file a suit for cancellation of the decree on the ground
that A had no title in the property in dispute. Clearly, such a view cannot be
countenanced.
ii. Dinesh Kumar Gupta
v. Manish Kumar FAO No.545/01 decided on 08.05.02 : In said case, appellants
sought impleadment in a suit for specific performance of an agreement to sell
on the ground that the defendant had entered into an earlier agreement to sell
with them with respect to same property. Holding that the appellants are proper
parties to the suit, the Division Bench of this Court allowed the appeal.
v. Manish Kumar FAO No.545/01 decided on 08.05.02 : In said case, appellants
sought impleadment in a suit for specific performance of an agreement to sell
on the ground that the defendant had entered into an earlier agreement to sell
with them with respect to same property. Holding that the appellants are proper
parties to the suit, the Division Bench of this Court allowed the appeal.
14. Before proceeding
to discuss the legal position it is important to note the relevant statutory
provision. Order I Rule 10(2) of the Code of Civil Procedure reads as under:
to discuss the legal position it is important to note the relevant statutory
provision. Order I Rule 10(2) of the Code of Civil Procedure reads as under:
(2) Court may strike
out or add parties:- The Court may at any stage of the proceedings, either upon
or without the application of either party, and on such terms as may appear to
the Court to be just, order that the name of any party improperly joined,
whether as plaintiff or defendant, or whose presence before the Court may be
necessary in order to enable the Court effectually and completely to adjudicate
upon and ‘settle all the questions involved in the suit, be added’.
out or add parties:- The Court may at any stage of the proceedings, either upon
or without the application of either party, and on such terms as may appear to
the Court to be just, order that the name of any party improperly joined,
whether as plaintiff or defendant, or whose presence before the Court may be
necessary in order to enable the Court effectually and completely to adjudicate
upon and ‘settle all the questions involved in the suit, be added’.
15. A reading of the
statutory provision shows that the sweep of the legislative provision is
controlled by the expression ‘settle all the questions involved in the suit, be
added’. Meaning thereby, an inquiry under Order I Rule 10(2) is not to focus on
whether the applicant is a person who ought to have been joined as a necessary
party to the suit. The focus of inquiry is limited to the question whether the
applicant could be imp leaded on the premise that his presence before the Court
may be necessary in order to enable the Court to effectually and completely
adjudicate upon and settle the questions involved in the suit.
statutory provision shows that the sweep of the legislative provision is
controlled by the expression ‘settle all the questions involved in the suit, be
added’. Meaning thereby, an inquiry under Order I Rule 10(2) is not to focus on
whether the applicant is a person who ought to have been joined as a necessary
party to the suit. The focus of inquiry is limited to the question whether the
applicant could be imp leaded on the premise that his presence before the Court
may be necessary in order to enable the Court to effectually and completely
adjudicate upon and settle the questions involved in the suit.
16. A perusal of the
commentaries under Order I Rule 10 of the Code of Civil Procedure reveal a plethora
of decisions which have considered the ambit of the power of the Court in
impleading a person as a proper party. The authorities have explained the
meaning of the phrase ‘all the questions involved in the suit’.
commentaries under Order I Rule 10 of the Code of Civil Procedure reveal a plethora
of decisions which have considered the ambit of the power of the Court in
impleading a person as a proper party. The authorities have explained the
meaning of the phrase ‘all the questions involved in the suit’.
17. The decisions
illustrate a wide spectrum of instances when intervention was allowed and when
refused.
illustrate a wide spectrum of instances when intervention was allowed and when
refused.
18. From the decisions,
no discernible principle governing the discretionary power of the Court
emerges, for the simple reason, the spectrum of claims is fairly wide and
therefore it would be inadvisable to cast the discretionary power in a straight
jacket of an inflexible formula. However, one principle emerges, that the
language employed in the rule vests a very wide discretion in the Court.
no discernible principle governing the discretionary power of the Court
emerges, for the simple reason, the spectrum of claims is fairly wide and
therefore it would be inadvisable to cast the discretionary power in a straight
jacket of an inflexible formula. However, one principle emerges, that the
language employed in the rule vests a very wide discretion in the Court.
19. In the leading case
of Razia Begum v. Anwar Begum the Supreme Court had laid down the following
principles regarding the power of the Court to implead parties by virtue of
Rule 10(2) of the Code of Civil Procedure:
of Razia Begum v. Anwar Begum the Supreme Court had laid down the following
principles regarding the power of the Court to implead parties by virtue of
Rule 10(2) of the Code of Civil Procedure:
20. As a result of
these considerations, we have arrived at the following conclusions:
these considerations, we have arrived at the following conclusions:
(1) That the question
of addition of parties under Rule 10 of Order 1 of the Code of Civil Procedure,
is generally not one of initial jurisdiction of the court, but of a judicial
discretion which has to be exercised in view of all the facts and circumstances
of a particular case; but in some cases, it may raise controversies as to the
power of the court, in contradistinction to its inherent jurisdiction, or, in
other words, of jurisdiction in the limited sense in which it is used in
Section 115 of the Code;
of addition of parties under Rule 10 of Order 1 of the Code of Civil Procedure,
is generally not one of initial jurisdiction of the court, but of a judicial
discretion which has to be exercised in view of all the facts and circumstances
of a particular case; but in some cases, it may raise controversies as to the
power of the court, in contradistinction to its inherent jurisdiction, or, in
other words, of jurisdiction in the limited sense in which it is used in
Section 115 of the Code;
(2) That in a suit
relating to property in order that a person may be added as a party, he should
have a direct interest as distinguished from a commercial interest in the
subject-matter of the litigation;
relating to property in order that a person may be added as a party, he should
have a direct interest as distinguished from a commercial interest in the
subject-matter of the litigation;
(3) Where the
subject-matter of a litigation is a declaration as regards status or a legal
character, the rule of present or direct interest may be relaxed in a suitable
case where the court is of the opinion that by adding that party it would be in
a better position effectually and completely to adjudicate upon the
controversy;
subject-matter of a litigation is a declaration as regards status or a legal
character, the rule of present or direct interest may be relaxed in a suitable
case where the court is of the opinion that by adding that party it would be in
a better position effectually and completely to adjudicate upon the
controversy;
(4) The cases
contemplated in the last proposition have to be determined in accordance with
the statutory provisions of Sections 42 and 43 of the Specific Relief Act;
contemplated in the last proposition have to be determined in accordance with
the statutory provisions of Sections 42 and 43 of the Specific Relief Act;
20. A reference may
also be made to the decision of the Supreme Court reported as Ramesh Hirachand
Kundanmal v. Municipal Corporation of Greater Bombay 1992 (2) SCC 224. In the
said case, the plaintiff was a dealer on the land held by the Hindustan
Petroleum Corporation and was in possession of a service station. The Municipal
Corporation issued a notice to the plaintiff for demolition of a certain
construction alleging that it was unauthorized. The plaintiff filed a suit for
permanent injunction against the Municipal Corporation. Hindustan Petroleum
applied for being imp leaded as a defendant on the ground that it had material
to show that the structure was unauthorized. The prayer was granted by the
Courts below.
also be made to the decision of the Supreme Court reported as Ramesh Hirachand
Kundanmal v. Municipal Corporation of Greater Bombay 1992 (2) SCC 224. In the
said case, the plaintiff was a dealer on the land held by the Hindustan
Petroleum Corporation and was in possession of a service station. The Municipal
Corporation issued a notice to the plaintiff for demolition of a certain
construction alleging that it was unauthorized. The plaintiff filed a suit for
permanent injunction against the Municipal Corporation. Hindustan Petroleum
applied for being imp leaded as a defendant on the ground that it had material
to show that the structure was unauthorized. The prayer was granted by the
Courts below.
The plaintiff approached the Supreme Court. Allowing the appeal
and setting aside the order, the Supreme Court held that the Hindustan
Petroleum Corporation was neither necessary nor proper party to the
proceedings. It was held that the person to be joined must be one whose
presence is necessary as a party. The test is not whether his presence is
necessary for the correct solution of the dispute before the Court but whether
the order would affect him or his interest would be prejudiced. Relevant
discussion is being noted herein below:
and setting aside the order, the Supreme Court held that the Hindustan
Petroleum Corporation was neither necessary nor proper party to the
proceedings. It was held that the person to be joined must be one whose
presence is necessary as a party. The test is not whether his presence is
necessary for the correct solution of the dispute before the Court but whether
the order would affect him or his interest would be prejudiced. Relevant
discussion is being noted herein below:
6. Sub-rule(2) of Rule
10 gives a wide discretion to the Court to meet every case of defect of parties
and is not affected by the inaction of the plaintiff to bring the necessary
parties on record. The question of impleadment of a party has to be decided on
the touch stone of Order I Rule 10 which provides that only a necessary or a
proper party may be added. 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. The addition of parties is
generally not a question of initial jurisdiction of the Court but of a judicial
discretion which has to be exercised in view of all the facts and circumstances
of a particular case.
10 gives a wide discretion to the Court to meet every case of defect of parties
and is not affected by the inaction of the plaintiff to bring the necessary
parties on record. The question of impleadment of a party has to be decided on
the touch stone of Order I Rule 10 which provides that only a necessary or a
proper party may be added. 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. The addition of parties is
generally not a question of initial jurisdiction of the Court but of a judicial
discretion which has to be exercised in view of all the facts and circumstances
of a particular case.
8. The case really
turns on the true construction of the Rule in particular the meaning of the
words “whose presence before the Court may be necessary in order to enable the
Court effectually and completely to adjudicate upon and settle all the
questions involved in the suit.’` The Court is empowered to join a person whose
presence is necessary for the prescribed purpose and cannot under the Rule
direct the addition of a person whose presence is not necessary for that
purpose. If the intervener has a cause of action against the plaintiff relating
to the subject-matter of the existing action, the Court has power to join
intervener so as to give effect to the primary object of the order which is to
avoid multiplicity of actions.
turns on the true construction of the Rule in particular the meaning of the
words “whose presence before the Court may be necessary in order to enable the
Court effectually and completely to adjudicate upon and settle all the
questions involved in the suit.’` The Court is empowered to join a person whose
presence is necessary for the prescribed purpose and cannot under the Rule
direct the addition of a person whose presence is not necessary for that
purpose. If the intervener has a cause of action against the plaintiff relating
to the subject-matter of the existing action, the Court has power to join
intervener so as to give effect to the primary object of the order which is to
avoid multiplicity of actions.
14. It cannot be said
that the main object of the rule is to prevent multiplicity of actions though
it may incidentally have that effect. But that appears to be a desirable
consequence of the rule rather than its main objectives. The person to be
joined must be one whose presence is necessary as a party. What makes a person
a necessary party is not merely that he has relevant evidence to give on some
of the questions involved; that would only make him a necessary witness. It is
not merely that he has an interest in the correct solution of some questions
involved and has thought of relevant arguments to advance. The only reason
which makes it necessary to make a person a party to an action is that he
should be bound by the result of the action and the question to be settled,
therefore, must be a question in the action which cannot be effectually and
completely settled unless he is a party.
that the main object of the rule is to prevent multiplicity of actions though
it may incidentally have that effect. But that appears to be a desirable
consequence of the rule rather than its main objectives. The person to be
joined must be one whose presence is necessary as a party. What makes a person
a necessary party is not merely that he has relevant evidence to give on some
of the questions involved; that would only make him a necessary witness. It is
not merely that he has an interest in the correct solution of some questions
involved and has thought of relevant arguments to advance. The only reason
which makes it necessary to make a person a party to an action is that he
should be bound by the result of the action and the question to be settled,
therefore, must be a question in the action which cannot be effectually and
completely settled unless he is a party.
The line has been drawn on a wider
construction of the rule between the direct interest or the legal interest and
commercial interest. It is, therefore, necessary that the person must be
directly or legally interested in the action in the answer, i.e. , he can say
that the litigation may lead to a result which will affect him legally that is
by curtailing his legal rights. It is difficult to say that the rule
contemplates joining as a defendant a person whose only object is to prosecute
his own cause of action. Similar provision was considered in Amon v. Raphael
Tuck and Sons Ltd. (1956) 1 All E.R. 273, wherein after quoting the
observations of Wynn-Parry, J. in Dollfus Mieget Compagnie S.A. v. Bank of
England (1950) 2 All E.R. 611, that the true test lies not so much in an
analysis of what are the constituents of the applicants’ rights, but rather in
what would be the result on the subject-matter of the action if those rights
could be established, Devlin, J. has stated:
construction of the rule between the direct interest or the legal interest and
commercial interest. It is, therefore, necessary that the person must be
directly or legally interested in the action in the answer, i.e. , he can say
that the litigation may lead to a result which will affect him legally that is
by curtailing his legal rights. It is difficult to say that the rule
contemplates joining as a defendant a person whose only object is to prosecute
his own cause of action. Similar provision was considered in Amon v. Raphael
Tuck and Sons Ltd. (1956) 1 All E.R. 273, wherein after quoting the
observations of Wynn-Parry, J. in Dollfus Mieget Compagnie S.A. v. Bank of
England (1950) 2 All E.R. 611, that the true test lies not so much in an
analysis of what are the constituents of the applicants’ rights, but rather in
what would be the result on the subject-matter of the action if those rights
could be established, Devlin, J. has stated:
The test is ‘May the
order for which the plaintiff is asking directly affect the intervener in the
enjoyment of his legal rights.’
order for which the plaintiff is asking directly affect the intervener in the
enjoyment of his legal rights.’
21. The test which is
to be applied while considering an application under Order I Rule 10(2) of the
Code of Civil Procedure for impleadment of a party has been summarised in the
decision of the Madhya Pradesh High Court reported as Sampatbai v. Madhusingh
Gambhirji :
to be applied while considering an application under Order I Rule 10(2) of the
Code of Civil Procedure for impleadment of a party has been summarised in the
decision of the Madhya Pradesh High Court reported as Sampatbai v. Madhusingh
Gambhirji :
The test is not whether
the joinder of the person proposed to be added as a defendant would be
according to or against the wishes of the plaintiff or whether the joinder
would involve an investigation into a question not arising on the cause of
action averred by the plaintiff. It is whether the relief claimed by the
plaintiff will directly affect the intervener in the enjoyment of his rights.
It is not enough that the plaintiff’s rights, and rights which the person
desiring to be made a defendant wishes to assert should be connected with the
same subject-matter. The intervener must be directly and legally interested in
the answers to the questions involved in the case.
the joinder of the person proposed to be added as a defendant would be
according to or against the wishes of the plaintiff or whether the joinder
would involve an investigation into a question not arising on the cause of
action averred by the plaintiff. It is whether the relief claimed by the
plaintiff will directly affect the intervener in the enjoyment of his rights.
It is not enough that the plaintiff’s rights, and rights which the person
desiring to be made a defendant wishes to assert should be connected with the
same subject-matter. The intervener must be directly and legally interested in
the answers to the questions involved in the case.
A person is legally
interested in the answer only if he can say that it may lead to a result that
will affect him legally — that is by curtailing his legal rights. This is the
test which has been applied in Amon v. Raphael Tuck and Sons Ltd. 1956-1 All ER
273, in connection with R. S. C. Order 16, Rule 11 which is similar to Order 1,
Rule 10, C. P. C. Again as pointed out in Dollfus Mieg et Compagnie S. A. v.
Bank of England 1950-2 All ER 605 at p. 611, in determining whether or not an
applicant has a proprietary right in the subject matter of an action sufficient
to entitle him to be joined as a defendant the true test lies not so much in an
analysis of what are the constituents of the applicant’s rights, but rather in
what would be the result on the subject- matter of the action if those rights
could be established
interested in the answer only if he can say that it may lead to a result that
will affect him legally — that is by curtailing his legal rights. This is the
test which has been applied in Amon v. Raphael Tuck and Sons Ltd. 1956-1 All ER
273, in connection with R. S. C. Order 16, Rule 11 which is similar to Order 1,
Rule 10, C. P. C. Again as pointed out in Dollfus Mieg et Compagnie S. A. v.
Bank of England 1950-2 All ER 605 at p. 611, in determining whether or not an
applicant has a proprietary right in the subject matter of an action sufficient
to entitle him to be joined as a defendant the true test lies not so much in an
analysis of what are the constituents of the applicant’s rights, but rather in
what would be the result on the subject- matter of the action if those rights
could be established
22. Turning to the
facts of the instant case, it is the pleaded in the plaint that the defendant
represented to the plaintiff that he is the sole and exclusive owner of the
suit property. In support whereof, reliance has been placed on the Will dated
13.2.80 and the Relinquishment Deed 28.5.90.
facts of the instant case, it is the pleaded in the plaint that the defendant
represented to the plaintiff that he is the sole and exclusive owner of the
suit property. In support whereof, reliance has been placed on the Will dated
13.2.80 and the Relinquishment Deed 28.5.90.
23. As already noted,
in the written statement filed by the defendant, a categorical plea has been
taken that he and the petitioner are the joint owners of the suit property.
That the defendant never executed any agreement to sell in respect of the suit
property. That the petitioner never executed any Relinquishment Deed
relinquishing his rights and interest in the suit property in favor of the
defendant.
in the written statement filed by the defendant, a categorical plea has been
taken that he and the petitioner are the joint owners of the suit property.
That the defendant never executed any agreement to sell in respect of the suit
property. That the petitioner never executed any Relinquishment Deed
relinquishing his rights and interest in the suit property in favor of the
defendant.
24. Thus, the instant
suit revolves around the following two issues:
suit revolves around the following two issues:
i. Whether the
defendant executed the agreement to sell dated 18.6.90?
defendant executed the agreement to sell dated 18.6.90?
ii. Whether the
defendant was the sole and exclusive owner of the suit property?
defendant was the sole and exclusive owner of the suit property?
As regards decision on
this issue, it is necessary to determine whether the petitioner executed the
Relinquishment Deed date 28.5.90 relinquishing all his rights and interests in
the suit property in favor of the defendant.
this issue, it is necessary to determine whether the petitioner executed the
Relinquishment Deed date 28.5.90 relinquishing all his rights and interests in
the suit property in favor of the defendant.
25. An analysis of the
allegations in the plaint and the defense taken in the written statement shows
that the issue of ownership of the suit property is the subject-matter of the
suit or in other words is a ‘question involved in the suit’.
allegations in the plaint and the defense taken in the written statement shows
that the issue of ownership of the suit property is the subject-matter of the
suit or in other words is a ‘question involved in the suit’.
26. Issue of ownership
of the suit property is the subject-matter of the suit and that since
petitioner is claiming to be the co-owner of the suit property to the extent of
share in the suit property he would be affected by the decision in the suit and
hence is a necessary party.
of the suit property is the subject-matter of the suit and that since
petitioner is claiming to be the co-owner of the suit property to the extent of
share in the suit property he would be affected by the decision in the suit and
hence is a necessary party.
27. If the impleadment
sought for by the petitioner is allowed, neither the nature of the suit would
be changed nor the controversy in the suit would be widened.
sought for by the petitioner is allowed, neither the nature of the suit would
be changed nor the controversy in the suit would be widened.
28. In view of the
above discussion I hold that the petitioner is entitled to be imp leaded as a
defendant in the present suit.
above discussion I hold that the petitioner is entitled to be imp leaded as a
defendant in the present suit.
29. The impugned order
dated 19.07.06 is set aside. Application for impleadment of the petitioner is
allowed.
dated 19.07.06 is set aside. Application for impleadment of the petitioner is
allowed.
30. No costs.