Ramesh Agarwal vs Goklendra Bahadur Singh And ...
2023 Latest Caselaw 17828 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


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Neutral Citation No. - 2023:AHC-LKO:46907
 
Court No. - 20
 

 
Case :- CIVIL REVISION No. - 2 of 2023
 

 
Revisionist :- Ramesh Agarwal
 
Opposite Party :- Goklendra Bahadur Singh And Others
 
Counsel for Revisionist :- Agendra Sinha
 
Counsel for Opposite Party :- Vishnu Pratap Singh,Shishir Chandra
 

 
Hon'ble Manish Mathur,J.

1. Heard Mr. Agendra Sinha, learned counsel for revisionist and Mr. Shishir Chandra, learned counsel appearing for opposite parties 1 to 11, 14 to 17, 25 and 26. Remaining opposite parties being merely proforma in nature as admitted by learned counsel for the parties, notices are dispensed with.

2. Revision under Section 115 of Code of Civil Procedure has been filed against order dated 16.12.2022 passed in Regular Suit No.354 of 2018 instituted by opposite party no.1 for permanent and mandatory injunction against the defendants therein in which revisionist was not a party.

3. Learned counsel for revisionist submits that the revisionist is in occupation and possession of a portion of the suit premises of Regular Suit No.354 of 2018 but since he was not impleaded a party therein, he filed an application for impleadment under Order 1 Rule 10 of the Code which has been rejected by means of impugned order. It is submitted that the said suit indicates the boundaries of suit property and seeks a relief of injuncting the defendants from demolishing or raising any construction or transferring possession or from interfering in the peaceful enjoyment of the suit premises by the plaintiff.

4. It has been submitted that the plaintiff has also filed a separate Regular Suit No. 213 of 2019 against the revisionist specifically indicating the fact that the revisionist is in possession of a shop in the suit premises which he has purchased by means of a registered sale deed dated 30.03.2015. The said suit has been filed for cancellation of the said sale deed.

5. Learned counsel further submits that in paragraph 10 of Regular Suit No.354 of 2018, it has been stated that the revisionist was earlier in possession over a shop in question as a licensee. It has also been submitted that suit property in both the suits is the same and, therefore, the revisionist was not only a necessary but also a proper party due to which aforesaid application had been filed. Learned counsel further submits that the order impugned has been passed without considering the fact that the revisionist was a necessary party. Learned counsel has placed reliance on decisions in the following cases to buttress his submissions:-

(1) Vidur Impex and Traders (P) Ltd. and others v. Tosh Apartments (P) Ltd. and others reported in (2012) 8 SCC 384[Hon'ble the Supreme Court];

(2) Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another reported in AIR 1963 SC 786[Hon'ble the Supreme Court]; and

(3)Committee of Management, Ratan Muni Jain Inter College and another v. III Additional Civil Judge, Agra and others reported in AIR 1995 Allahabad 7 [a decision of this Court];

6. Learned counsel appearing on behalf of answering opposite parties has refuted the submissions advanced by learned counsel for the revisionist with submission that the plaintiff is the dominus litis and therefore no other party can be impleaded in the suit proceedings without consent of plaintiff. It is further submitted that although the revisionist has been indicated as a licensee in a portion of the premises which is under dispute in Regular Suit No.354 of 2018 but since relief has been sought only against the persons arrayed as defendants in the said suit proceedings, there is no occasion for the revisionist to have sought impleadment since any decree passed in the said suit even otherwise would not bind the revisionist. It is also submitted that injunction has been sought only with regard to residential portion of the premises in question whereas the revisionist is in possession over a shop which is in another part of the property. It is also submitted that so far as rights of plaintiffs are concerned vis-a-vis the revisionist, the same are already being agitated in Regular Suit No.213 of 2019 and as such also there is no occasion to implead the revisionist and the order impugned does not suffer from any error. He has placed reliance on the following decisions:-

(1) Kanaklata Das and other v. Naba Kumar Das and others reported in (2018) 2 SCC 352[Hon'ble the Supreme Court]; and

(2) Sudhamayee Pattnaik and others v. Bibhu Prasad Sahoo and others reported in 2022 SCC OnLine SC 1234 [Hon'ble the Supreme Court];

7. Upon considerations of submissions advanced by learned counsel for the parties and perusal of material on record, it is evident that it is admitted between the parties that the suit property of both the suits is the same but learned counsel for opposite parties submits that while in Regular Suit No.354 of 2018, relief has been sought only qua defendants therein with a separate Regular Suit No.213 of 2019 having been filed against the revisionist, there was no occasion to have allowed the impleadment application. It is also admitted between the parties that the shop over which revisionist is now claiming title by virtue of registered sale deed dated 30.03.2015 is situate on the very same premises and earlier possession of revisionist over the said property was in the shape of a licensee.

8. A perusal of prayer made in Regular Suit No.354 of 2018 reveals that injunction has been sought against the defendants with regard to property in question as bounded and indicated in paragraph-1 of the plaint.

9. In Regular Suit No.213 of 2019, relief claimed is of cancellation of sale deed dated 30.03.2015 executed in favour of revisionist. Further prayer made is for vacation of the suit premises along with other concomitant prayers.

10. Learned counsel for parties have admitted that suit premises of both the suits is the same. The distinction indicated by learned counsel for the opposite parties however is that in Regular Suit No.354 of 2018, relief prayed for pertains only to residential area occupied by the licensee whereas in Regular Suit No.213 of 2019, the disputed property pertains to a shop located on the same premises. As such, it is admitted that the suit premises in both the suits is the same.

11. The said fact is also evident from the relief claimed in Regular Suit No.354 of 2018 where injunction has been sought over the entire property as indicated in paragraph-1 of the plaint without any exception being indicated therein.

12. Although learned counsel for opposite party has submitted that subsequently amendment application has been filed seeking amendment of prayer in Regular Suit No.354 of 2018 whereby the prayer is restricted to residential area but it is also admitted that the said application is yet pending consideration and has not been decided as yet.

13. Considering aforesaid, it is evident and admitted even from the pleadings raised in Regular Suit No.213 of 2019 as well as in the objections filed to the application for impleadment that suit premises of both the suits is the same.

14. In such circumstances, in considered opinion of this Court, revisionist would definitely face hindrance in peaceful enjoyment of his portion of the property in case Regular Suit No.354 of 2018 is decreed as per the prayer made as on date.

15. The impugned order also indicates the fact that expedite orders have been passed by this Court for early disposal of Regular Suit No.354 of 2018 and therefore the application would have the effect of delaying the proceedings.

16. No doubt, in view of expedite orders being passed by this Court, it is the bounden duty of the trial court to adhere to the same but vested rights of parties cannot be given a go by or ignored merely on the ground that allowing their right to agitate their cause would delay the proceedings. Delay in proceedings as such can never be a ground to deny the legitimate rights of the parties to proceedings or a dispute.

17. Hon'ble the Supreme Court in Vidur Impex and Traders (P) Ltd. (supra) has indicated the conditions under which an impleadment application can be allowed which are as follows:-

"41.1. The court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit.

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.

41.5. In a suit for specific performance, the court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.

41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the court or the application is unduly delayed then the court will be fully justified in declining the prayer for impleadment."

18. Similarly in Udit Narain Singh Malpaharia (supra), the distinction between a necessary and proper parties has also been indicated which has been followed by a coordinate Bench of this Court in Committee of Management, Ratan Muni Jain Inter College (supra).

19. In the aforesaid judgments, Hon'ble the Supreme Court has clearly held that in such cases where an effective decree cannot be passed without the presence of a particular party the same would come within the realm of a necessary party whereas a proper party would be a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all the matters and issues although such a person may not be a person in favour of or against whom a decree is to be issued.

20. The same analogy has been indicated in other judgments as well.

21. Upon applicability of aforesaid judgments in the facts and circumstance of the case, it is evident that not only are the suit premises in both the Regular Suits same but the revisionist is also in possession over a portion of the said disputed premises and therefore in considered opinion of this Court, the revisionist who may not fall within the definition of a necessary party, would definitely fall within the definition of a proper party since no effective decree can be passed in his absence as also for complete, effective and proper adjudication of all disputes in issue.

22. So far as judgment rendered by Hon'ble the Supreme Court in Kanaklata Das and others (supra) is concerned, the same analogy has in fact been indicated in paragraphs 11.4 & 11.5 therein and to that extent, is in conformity with the judgments indicated herein above.

23. Learned counsel for opposite parties has also placed reliance on a judgment of Hon'ble the Supreme Court in Sudhamayee Pattnaik and others (supra) However, a reading of the said judgment clearly indicates that it is inapplicable in the facts and circumstances since in that case, impleadment of subsequent purchasers who were lis pendens purchasers was being sought whereas in the present case, admittedly the revisionist had purchased the property in question by means of a sale deed dated 30.03.2015 and the suit had been filed in the year 2018 and as such the revisionist cannot be said to be a lis pendens purchaser.

24. A perusal of the impugned order reveals that Application for impleadment has been rejected primarily on account of fact that the plaintiff has already filed a separate Regular Suit no.213 of 2019 for cancellation of sale deed along with other prayers requiring possession of the disputed premises and therefore it has been held that the revisionist can very well agitate his rights in the aforesaid suit.

25. As has been indicated herein above, the purpose of both the suits is quite separate and distinct with one suit having been filed for injunction and the other having been filed for cancellation of sale deed along with decree of possession. However since the suit premises is the same and distinction as being sought to be caved out as per amendment application having not been incorporated as yet in the relief clause of Regular Suit No.354 of 2018, the revisionist was proper party and the trial court has clearly erred in not allowing the impleadment Application.

26. In view of aforesaid discussions the impugned order dated 16.12.2022 passed by the trial court in Regular Suit No.354 of 2018 is set aside allowing the impleadment application.

27. Resultantly, the revision succeeds and is allowed. Parties to bear their own costs.

Order Date :- 18.7.2023

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