Bombay High Court
Sau. Radha Gopal Bhoot And Another vs Yeshwant Lahnuji Sakore And ... on 30 September, 2016
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 6795 OF 2015
(1) Sau. Radha Gopal Bhoot
Aged about 41 years, Occ. Household work,
(2) Gopal Purushottamji Bhoot,
Age 51 years, Occ : Agriculturist,
Both resident of Main Road,
Dhamangoan Rly, Dist. Amravati. ... Petitioners
// VERSUS //
(1) Yeshwant Lahnuji Sakore
Age 50 years, Occ : Agriculturist,
(2) Sau. Vimalbai Yeshwant Sakore
Age 45 years, Occ : Agriculturist,
Both R/o College Road, in front of Bhandari
Bagicha, Dhamangao Rly,
Tq. Dhamangao Rly, Dist. Amravati.
(3) Sau. Vatsalabai Govindrao Dhanjode,
Age 65 yrs, Occ : Agriculturist,
R/o Talegaon (Dashasar),
Tq. Dhamangao Rly., Dist. Amravati.
(4) Mangesh Bhauraoji Sawalakhe
Aged 35 yrs, Occ :- Agriculturist,
R/o Mangrul Dastagir,
Tq. Dhamangao Rly., Dist. Amravati.
(5) Vilas Subhasrao Butale,
Aged 40 years, Occ :- Agriculturist,
R/o Lunawat Nagar, Matoshri Hights,
Dhamangao Rly., Tq. Dhamangao Rly.,
Dist. Amravati.
(6) Satish Vyawarimalji Budhlani,
Aged 60 years, Occ. Agriculturist,
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R/o Budhawar Bazar, Sindhi Colony,
Dhamangao Rly., Tq. Dhamangao Rly.,
Dist. Amravati.
(7) Rameshchandra Jasroopchandji Chandak
Aged 60 years, Occ : Agriculturist and
Legal Practitioner, R/o Main Road,
Gandhi Chowk, Dhamangao Rly.,
Tq. Dhamangao Rly., Dist. Amravati. ... Respondents
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Shri S. S. Alaspurkar, Advocate for the petitioners
Shri A. V. Bhide, Advocate for the respondent nos. 4 to 7
None for the respondent nos. 1 to 3
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CORAM : PRASANNA B. VARALE, J.
DATE : 30-9-2016.
ORAL ORDER
Rule. Rule made returnable forthwith.
2. Heard Shri Alaspurkar, learned counsel for the petitioners
and Shri Bhide, learned counsel for the respondent nos. 4 to 7.
3. None appears for the respondent nos. 1 to 3.
4. By the present petition, the petitioners challenge the
orders passed by the learned Joint Civil Judge Junior Division,
Dhamangaon Railway, District Amravati dated 11-8-2015 thereby
rejecting the applications filed at the instance of the petitioners.
5. Brief facts giving rise to the present petition can be
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summarized as follows.
The petitioners instituted Special Civil Suit No. 149/2009
against the respondent nos. 1 to 3 who are defendants before the
learned Civil Judge Senior Division, Amravati. It was submitted in the
claim that plaintiff no. 1 is owner of Field Survey No. 76/1 to the
extent of area of 5H. 52R, the plaintiff no. 2 is owner of Field Survey
No. 77/1 to the extent of area of 3H. 46R whereas defendant nos. 1
and 2 are the owners of Field Survey No. 76/2 to the extent of area of
2H. 18R. Defendant no. 3 is mother of defendant no. 2. It was
submitted that defendant nos. 1 and 2 by hatching a conspiracy
created and brought into existence approach to their field Survey
No. 76/2 by removing the poles at the points 'D' and by filing the
manure pit at point 'M' (shown in the plaint map) and created
approach which was never in existence and it was the intention and
motive to create approach in their field through the field owned by
the plaintiffs. Thus on the allegations referred to above, the
plaintiffs/petitioners made prayers, namely :
(i) It be declared that defendants have no right to damage
or remove the wire fencing and / or any pole erected at the
point D or any other adjoining point on the boundary of the
suit fields bearing S. No. 77/1 and 76/1 owned by the
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plaintiffs as shown in the plaint map, by letters A.D.E.
(ii) By grant of permanent injunction the defendants be
restrained from damaging or removing the wire fencing
and/or any pole erected at the point D or any other adjoining
point on the boundary of the suit fields bearing S.No. 77/1
and 76/1 owned by the plaintiffs as shown in the plaint map,
by letters A.D.E.
(iii) It be declared that the defendants have no right to
approach their F.S. no. 76/2 from the point M or any other
portions of the suit fields bearing S. No. 77/1 and 76/1
owned by the plaintiffs.
(iv) By grant of permanent injunction the defendants be
restrained from approaching the F.S. No. 76/2 from point M
or any other portion of the suit fields bearing No. 76/1 and
77/1.
(a) A decree for recovery of damages of Rs. 1,00,000/- be
passed in favour of the plaintiffs and against the
defendants making them liable jointly and severally along
with interest thereon.
(v) .....
(vi) .....
Defendants resisted the claim by filing written statement. It is
submitted in the petition that the defendant nos. 1 and 2 are also
made counter claim along with their written statement. The
petitioners approached the learned Court below by filing applications
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for (1) grant of permission to amend the plaint under Order 6 Rule 17
of the Civil Procedure Code, (2) seeking leave to the plaintiff to
continue the suit against the assignee in the interest of justice under
Order 22 Rule 10 of the Civil Procedure Code and (3) seeking
permission to join the respondent nos. 4 to 7 as defendant nos. 4 to 7
by amending the plaint under Order 1 Rule 10 of the Civil Procedure
Code.
The applications were opposed by the defendants as well as purchasers
and the persons as per the claim of plaintiffs who have been assigned
the interest in the property. Learned Joint Civil Judge Junior Division
found no favour with the plaintiffs and by orders dated 11-8-2015
rejected the applications.
6. Submissions of Shri Alaspurkar, learned counsel for the
petitioners in challenge to the orders rejecting these applications was
two fold. Firstly, learned counsel for the petitioners submitted that
though the defendant no. 1 to 3 have sold their property and the
persons who have purchased the property are necessary parties to
the suit as the interest assigned to the original owners of the
property i.e. defendant nos. 1 to 3. It was the second submission of
Shri Alaspurkar, learned counsel that the Court below erred in
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rejecting applications only on the basis of the statements made in
the reply to the applications. It was the further submission of
Shri Alaspurkar, learned counsel that it was for the Court below to
conduct the enquiry which may not be detailed one, but some enquiry
in the form of summary nature on the backdrop of the fact that the
petitioners-plaintiffs were submitting case that the original defendants
were transposing from their own field to approach their field and the
petitioners sought the prayer of injunction against the defendants who
are restraining the defendants from approaching Field Survey No.
76/2. Thus it was the submission of Shri Alaspurkar, learned counsel
that it was necessary for the Court below to conduct a summary
enquiry to appreciate the submissions of the petitioners in the
applications. Shri Alaspurkar, learned counsel in support of his
submissions placed reliance on the judgment of the Apex Court
reported in 2016(3) Scale in the matter of Chandra Bai (dead) thr.
L.Rs. Vs. Khandalwal Vipra Vidyalaya Samiti and ors.
7. Per contra, Shri Bhide, learned counsel appearing for the
respondent nos. 4 to 7 supported the orders passed by the learned
Court below and impugned in the petition. It was the submission of
Shri Bhide, learned counsel that the respondent nos. 4 to 7 are not the
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purchasers of any property of the plaintiffs. Shri Bhide, learned
counsel submitted that the respondent nos. 4 to 7 purchased the
property from the defendant nos. 1 to 3. Shri Bhide, learned counsel
then submitted that a categorical statement was made on behalf of
these respondents in reply to the applications that the respondents
would not use the way about which the grievance was made by the
plaintiffs. It was further submitted that as a statement was made that
the respondent nos. 4 to 7 are not going to use the way to approach
the field, there was no question of causing any disturbance to the
plaintiffs as alleged by the plaintiffs. It was the further submission of
Shri Bhide, learned counsel that on the backdrop of the statement
made by the respondent nos. 4 to 7, the controversy in the suit would
be a very limited issue i.e. whether the plaintiffs would be entitled for
decree for recovery of damages caused to him. It was further
submission of Shri Bhide, learned counsel that the submissions
advanced on behalf of the petitioners that the Court below was
required to conduct summary enquiry is unacceptable for the reason
that neither the provision speaks about such an enquiry nor there is
any judicial pronouncement. Shri Bhide, learned counsel submitted
that what is required is the satisfaction of the Court to exercise the
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discretion.
8. On the backdrop of the rival contentions of the parties, I
have gone through the material placed on record. Though it was the
submission of learned counsel appearing for the petitioners that the
Court below ought to have conducted some sort of summary enquiry
to assess the claim of the petitioners in view of the submission that the
respondent nos. 4 to 7 are the subsequent purchasers of the property
and on the backdrop of this fact, the plaintiffs submitted application
for amendment of the plaint by adding respondent nos. 4 to 7 as
necessary parties to the suit. Shri Alaspurkar, learned counsel for the
petitioners has placed reliance on the provision of Order 22 Rule 10.
The same reads thus :
10. Procedure in case of assignment before final order
in suit. - (1) In other cases of an assignment, creation or
devolution of any interest during the pendency of a suit, the
suit may, by leave of the Court, be continued by or against
the person to or upon whom such interest has come or
devolved.
(2) The attachment of a decree pending an appeal therefrom
shall be deemed to be an interest entitling the person who
procured such attachment to the benefit of sub-rule(1).
10-A. ......
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Shri Alaspurkar, learned counsel for the petitioners in support of his
submission that though the provision do not speak the words that the
Court has required to conduct an enquiry by a judicial pronouncement,
the Court below is required to conduct a summary enquiry.
9. Shri Alaspurkar, learned counsel for the petitioners placed
reliance on the case of Chandra Bai (dead) thr. L.Rs. Vs.
Khandalwal Vipra Vidyalaya Samiti and ors. (cited supra). It would
be necessary to refer to the said judgment of the Apex Court. The
Apex Court observed that :
3. We have duly taken note of these decisions and it
appears to us that in Raj Kumar v. Sardari Lal (supra),
this Court has held that in case of an assignment, creation
or devolution of any interest during the pendency of any
suit, Order 22 Rule 10 CPC confers a discretion on the
Court hearing the suit to grant leave to the person in or
upon whom such interest has come to vest or devolve to be
brought on record. Bringing of a lis pendens transferee on
record is not as of right but is the discretion of the Court.
We have also noticed that in Amit Kumar Shaw & Anr. v.
Farida Khatoon & Anr. (supra), this Court has held that it
is not necessary to make a detailed enquiry at the stage of
granting leave under Order 22 Rule 10 of CPC. The Court
at that point of time has to be prima facie satisfied for
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exercising its discretion in granting leave for continuing the
suit by or against the person on whom the interest has
devolved by assignment or devolution. ...
Thus, what is expected is the Court below exercising its discretion to
its satisfaction and to reach that satisfaction, one of the mode is a
summary enquiry. This by itself cannot be presumed to be a
requirement of summary enquiry. The Apex Court Chandra Bai's case
(cited supra) referred to the judgment in the case of Amit Kumar
Shaw & Anr. v. Farida Khatoon & Anr. It would be useful for our
purpose to refer to the judgment of Amit Kumar Shaw & Anr. v.
Farida Khatoon & Anr. reported in (2005) 11 SCC 403. The Apex
Court in the case of Amit Kumar Shaw observed that :
9. The object of Order 1 Rule 10 is to discourage
contests on technical pleas, and to save honest and bona
fide claimants from being non-suited. The power to strike
out or add parties can be exercised by the court at any
stage of the proceedings. Under this rule, a person may be
added as a party to a suit in the following two cases :
(1) when he ought to have been joined as plaintiff or
defendant, and is not joined so, or
(2) when, without his presence, the questions in the suit
cannot be completely decided.
The Apex Court further observed that :
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10. The power of a court to add a party to a proceedings
cannot depend solely on the question whether he has
interest in the suit property. ...
Then Apex Court while dealing with the other aspect of lis pendens or
the situation permitting the parties to submit application pendente lite
further observed :
16. The doctrine of lis pendens applies only where the lis
is pending before a Court. Further pending the suit, the
transferee is not entitled as of right to be made a party to
the suit, though the court has a discretion to make him a
party. But the transferee pendente lite can be added as a
proper party if his interest in the subject-matter of the suit
is substantial and not just peripheral. A transferee
pendente lite to the extent he has acquired interest from the
defendant is vitally interested in the litigation, where the
transfer is of the entire interest of the defendant; the latter
having no more interest in the property may not properly
defend the suit. He may collude with the plaintiff. Hence,
though the plaintiff is under no obligation to make a lis
pendens transferee a party, under Order 22 Rule 10 an
alienee pendente lite may be joined as party. As already
noticed, the court has discretion in the matter which must
judicially exercised and an alienee would ordinarily be
joined as a party to enable him to protect his interests. ....
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10. In present matter, though an attempt was made by Shri
Alaspurkar, learned counsel for the petitioners that the petitioner
sought for an addition of parties of respondent nos. 4 to 7 on the
ground that they are subsequent purchasers and they have stepped
into shoes of original defendant nos. 1 to 3 and, as such, the trial
Court was required to conduct a summary enquiry. I am unable to
accept the submission of Shri Alaspurkar, learned counsel for the
petitioners. As stated above, the Apex Court in clear and unambiguous
terms observed that for the consideration of such application by the
Court below, what is required to be seen is whether the discretion is
exercised by the Court below judiciously. It was also not the
requirement that in each and every case, the Court below should
conduct the enquiry even if it is accepted that enquiry cannot be detail
enquiry but summary nature. The judgment of the Apex Court
nowhere mandates that in each and every case, the lower Court is
bound to conduct summary enquiry or some enquiry. The Apex Court
in the case of Amit Kumar Shaw (cited supra) in clear words held that
the Court has discretion and it must judicially be exercised, meaning
thereby, by considering the merits of the application.
11. In the present matter, it was the case of the
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plaintiffs/petitioners that the defendant nos. 1 to 3 by erecting or
fencing wire on poles causing disturbance to their property and the
defendant nos. 1 to 3 were using their field for approaching their field.
Now, the learned Court below while considering the applications and
reply filed on behalf of the respondent nos. 4 to 7 in clear terms
observed that the respondent nos. 4 to 7 made a statement that it is
not in dispute that the respondent nos. 4 to 7 have not purchased any
property of the plaintiffs but they have purchased the property of
defendant nos. 1 to 3. A statement was made before the Court below
on behalf of the respondent nos. 4 to 7 that they would never used the
way about which the plaintiffs had a grievance and made allegations
that defendant nos. 1 to 3 were using that way for entering into their
field. The learned Court below by accepting that statement found no
favour with the applications filed by the plaintiffs and rejected these
applications. Thus, in my opinion, the learned Court below exercised
discretion on the material presented before it and was satisfied on the
material. The orders passed by the learned Joint Civil Judge Junior
Division show that the learned Judge was not inclined to undertake
the exercise of conducing any sort of enquiry. I see no reason to show
any indulgence in the order passed by the learned Joint Civil Judge
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Junior Division.
12. Though Shri Alaspurkar, learned counsel for the
petitioners made an attempt to submit that on the statement made by
the respondent nos. 4 to 7, the only course left with the Court below is
to pass the decree in favour of the plaintiffs, counter submission was
made on behalf of the respondent nos. 4 to 7 that the plaintiffs would
be entitled only to ask for relief to claim damages against defendant
nos. 1 to 3. It is not necessary for this Court to go into all these
aspects. The Court below may, on hearing the parties and on
assessment of the material and on appreciation of the record and
evidence, pass the ultimate final order. It is not for this Court to look
into that aspect of the matter. Considering all these aspects of the
matter, the petition being meritless, deserves to be rejected and the
same is, accordingly, rejected.
Rule is discharged.
JUDGE
wasnik
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