Chaya Ramanlal Bhandari vs Chandrakant Namdeo Chinchkar And ...
2017 Latest Caselaw 2081 Bom

                                       1             WP NO.7786 of 2016


       IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                  BENCH AT AURANGABAD

                   WRIT PETITION NO. 7786 of 2016


  Sau Chaya Ramanlal Bhandari,
  Age : 50 years, Occ : Household,
  R/o. 154, Ravivar Peth, Teli Galli,
  Shrigonda, Tq. Shrigonda,
  Dist. Ahmednagar
                                            ...PETITIONER
                   VERSUS

  1.       Chandrakant S/o. Namdeo Chinchkar
           Age : 75 years, Occ.: Labourer,
           R/o.: Indiranagar, Shrigonda,
           Tq. Shrigonda, Dist. Ahmednagar
                                           (Orig. Plaintiff)

  2.       Budhmal S/o. Dagaduram Mehta,
           Age: 81 years, Occ. Nil,
           C/o. Hanuman General Stores,
           Shani Chowk, Ravivar Peth,
           Shrigonda, Tq. Shrigonda,
           Dist. Ahmednagar             (Orig. Defendant)

                                               RESPONDENTS
                                 ...

           Shri. D.B. Rode, Advocate for Petitioner;
           Shri. N.V. Gaware, Advocate for Respondent No.1;
           Shri. S.D. Kotkar, Advocate h/f. Shri V.S. Badakh,
           Advocate for Respondent no.2.
                                 ...

                               CORAM: P.R. BORA J.

                               DATE : 28/4/2017

                                 ***




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                                        2                 WP NO.7786 of 2016

                               Date of reserving the
                               judgment:4/4/2017
                               Date of pronouncing
                               the judgment:28/4/2017
                                     ***

  JUDGMENT:

1. Heard. Rule. Rule made returnable and

heard forthwith with the consent of learned Counsel for the

parties.

2. The petitioner has filed the present petition

against order dated 22nd of June, 2016, passed by the

Civil Judge, Senior Division, Shrigonda, in an application at

Exh.17 in Special Civil Suit No.64/2010.

3. The petitioner had filed the aforesaid application

under Order 1 Rule 10 of the Code of Civil Procedure

seeking her impleadment in the aforesaid Special Civil Suit

as defendant no.2. It was the contention of the

petitioner that the property, which is the subject matter of

the aforesaid Special Civil Suit has been purchased by her

vide registered sale deed executed in her favour on

18.11.2010 by the defendant in the aforesaid Special Civil

3 WP NO.7786 of 2016

Suit, namely, Budhmal Dagduram Metha for consideration

of Rs.6,00,000/- (Rs. six lakhs). According to the

petitioner, since the aforesaid Special Civil Suit has been

filed by the present respondent no.1 for cancellation of the

sale deed dated 8.10.2002 executed by him in favour of

present respondent no.2, pertaining to the same subject

property which she has purchased from respondent no.2,

she is necessary party in the aforesaid Special Suit. It

was her further contention that in an appeal filed before

the District Court by the original defendant pertaining to

the same subject property, she had filed an application to

intervene and the same was allowed by the learned

District Judge.

4. The intervention application so filed by the

petitioner was opposed by respondent no.1. According

to respondent no.1, since he has filed the Special Civil Suit

for cancellation of the sale deed executed by him in favour

of respondent no.1, and since the present petitioner is

noway concerned with the said sale deed, she is not a

necessary party to the subject suit. It was the further

contention of respondent no.1 that since the sale deed

4 WP NO.7786 of 2016

dated 8.10.2002, is void and respondent no.2 herein did

not get any right in the subject property on the basis of

the said void sale deed, the transactions, if any, entered

into by respondent no.1, either with the present petitioner

or someone else, were not binding on him or on the

subject property.

5. The learned Civil Judge, after hearing both the

parties, has rejected the application filed by the present

petitioner vide the impugned order. The learned Civil

Court has rejected the application observing that since the

dispute is in relation to the sale deed dated 8.10.2002,

and at that time the present petitioner was noway

concerned with the subject property, she was not having

any right to intervene in the suit. In exception to the

order so passed, the petitioner has preferred the present

writ petition.

6. Shri D.B.Rode, learned Counsel appearing for

the petitioner, criticized the impugned order on plural

grounds. Learned Counsel submitted that the learned

trial Court has failed in appreciating the provisions under

5 WP NO.7786 of 2016

Order 1 Rule 10 of the Code of Civil Procedure. Learned

Counsel further submitted that when the District Judge

had remitted back the matter to the Civil Court for

deciding it afresh, and on the date of passing such order

by the District Court, the present petitioner was appellant

no.2 in the said appeal, the Civil Court ought to have

allowed the application of the petitioner for impleading her

as defendant no.2 in the pending Special Civil Suit.

Learned Counsel further submitted that the learned Civil

Judge did not appreciate that when the subject property is

purchased by the petitioner by way of registered sale deed

and in the property card the name of the present

petitioner appears as the owner and possessor of the

subject property, she must have been allowed to intervene

and resist the suit filed by respondent no.1 in respect of

the same property. Learned Counsel, in support of the

contentions raised by him, relied upon the judgment of the

Honourable Apex Court in the case of Sumatibai and

others vs. Paras Finance Co. ( (2007) 10 SCC 82) and

also the judgment of the learned Single Judge of this Court

in the case of Sushil Kaur Sukhbhirsingh Chhatwal and

others. Vs. Aurangabad Ginning and Pressing Factory and

6 WP NO.7786 of 2016

another ( 2012 (2) Mh.L.J. 295).

7. Shri N.V.Gavare, learned Counsel

appearing for respondent no.1, resisted the submissions

made on behalf of the petitioner. Relying on the judgment

of the Honourable Apex Court in the case of Kasturi vs.

Iyyamperumal and others ( 2005 (5) Bom. C.R.80), it was

sought to be canvassed by Shri N.V.Gavare that in the suit

for specific performance of contract for sale, the persons

who are not party to the said contract, cannot be joined or

allowed to be impleaded as a necessary party to the said

suit. Learned Counsel submitted that the persons who

are not party to the contract of sale are to be treated as

strangers and cannot be allowed to be impleaded in the

said suit and, as such, the trial Court has rightly rejected

the request of the petitioner. Learned Counsel further

submitted that since the dispute raised by the original

plaintiff pertains to the sale deed executed by him in

favour of respondent no.1, and since the petitioner is

noway concerned with the said transaction, the petitioner

is not a necessary party to the said suit.

                                           7                 WP NO.7786 of 2016

  8.               After       having    considered      the      submissions

advanced by the learned Counsel for the respective parties

and on going through the material available on record, the

impugned order, apparently, appears unsustainable.

The learned Civil Judge has rejected the request of the

petitioner to implead her as a party defendant in the

Special Civil suit on the ground that the petitioner was

noway concerned with the subject property on 8.10.2002

when the plaintiff had executed the sale deed of the said

property in favour of respondent no.1 which has been

sought to be cancelled by the plaintiff by filing the Special

Civil Suit. The learned trial Court has also observed that

the petitioner is neither having any nexus with the subject

property nor with the relief sought by the plaintiff in the

Special Civil Suit and, as such, cannot be impleaded as a

party to the said suit. Considering the facts involved in

the present matter, the finding so recorded by the trial

Court is erroneous and deserves to be set aside.

9. It is the case of the petitioner that she has

purchased the subject property from the defendant in the

said Special Civil Suit, namely, Shri Budhmal Dagduram

8 WP NO.7786 of 2016

Metha by way of registered sale deed duly executed on

18.11.2010. On the said date the subject property was

admittedly standing in the name of said Budhamal Metha.

It is further not in dispute that respondent no.1 filed the

suit seeking cancellation of the sale deed executed by him

on 8th of October, 2002, on 9th of December, 2010. In

the Special Civil Suit, respondent no.1 had sought

following two reliefs; first that the sale deed dated

8.10.2002 executed by him in favour of respondent no.2

be declared void and the other that the defendant in the

Special Civil Suit be permanently restrained from causing

interference in his peaceful possession of the subject

property either by himself or through his agents, friends

or relatives. Since the petitioner is the bona fide

purchaser of the subject property, in respect of which

certain declaration is sought by the present respondent

no.1 and had also sought the permanent injunction in

relation to the said property, the petitioner is necessary

and property party to the said suit.

10. In an application filed under Order 1 Rule 10 of

Code of Civil Procedure, the Court is not expected to go

9 WP NO.7786 of 2016

into the merits of the case as set up or the contentions

raised in oppose of the said application. Prima facie, it is

to be seen whether the party who claims intervention

possesses any interest in the subject matter and all other

questions in regard to the rival claims made by the parties

as about the title, etc. should be left for decision to be

taken after regular trial.

11. In the instant case, the petitioner is definitely

having an interest in the subject property since she has

purchased the said property by registered sale deed for

valuable consideration of Rs.6,00,000/- ( Rs. six lakhs).

Petitioner has placed on record the copy of the said sale

deed. Petitioner has also placed on record the property

card evidencing that on the basis of the said registered

sale deed, her name has been mutated to the subject

property as the owner and possessor of the said property.

12. The object of sub rule (2) of Rule 10 of Order 1

of Civil Procedure Code is to bring before the Court all the

persons who are parties to the dispute relating to one

subject matter so that the disputes may all be determined

10 WP NO.7786 of 2016

at the same time without delay, inconvenience and

expense of separate actions so that the Court may be in a

position to adjudicate upon and settle all the questions

involved in the suit and dispute between the parties attain

finality. As has been held by the Honourable Apex Court

in the case of Sumatibai and others (cited supra), if a

party can show a fair semblance of title or interest in the

property which is the subject matter of the suit, he can

certainly file an application for impleadment and ought to

be impleaded being a necessary party.

13. As is contended by the petitioner, respondent

no.1 is well aware of the fact that the present petitioner

had purchased the suit property from respondent no.2.

The petitioner in an application filed by her before the trial

Court has specifically averred that the respondent no.1

had on 19.11.2010 raised an objection in the office of

Deputy Superintendent of Land Records, Shrigonda, for

mutating the name of the petitioner to the subject

property. It is thus evident that respondent no.1 was well

aware of the fact that the subject property has been

purchased by the present petitioner before she filed the

11 WP NO.7786 of 2016

suit.

14. The judgment relied upon by Shri N.V.Gavare,

learned Counsel appearing for respondent no.1, in the case

of Kasturi (cited supra), may not be applicable to the facts

of the present case since the Special Civil Suit filed by

respondent no.1 against respondent no.2 is not the suit for

specific performance of contract for sale.

15. In view of the facts as above, the finding

recorded by the Civil Court in the impugned order that the

petitioner neither have any nexus with the subject

property nor with the relief sought by the plaintiff in the

Special Civil Suit cannot be sustained. Considering the

facts on record, the petitioner is a proper and necessary

party to the Special Civil Suit filed by respondent no.1

against respondent no.2. The trial Court has manifestly

erred in rejecting the application filed by the present

petitioner. The impugned order, therefore, deserves to

be set aside. Hence, the following order:

                                      12                 WP NO.7786 of 2016

                                   ORDER

1. The impugned order is quashed and set aside.

Consequently, the application at Exh.17 in Special Civil

Suit No.64/2010 filed by the petitioner is allowed.

2. The writ petition is allowed in aforesaid terms.

Rule made absolute accordingly.

( P.R.BORA ) JUDGE

...

AGP/7786-16wp