M/S. Golechha Housing And ... vs Shri. Sanjay S/O. Mohan Rao And ...
2017 Latest Caselaw 5768 Bom

 Judgment                                           1                                wp1457.16.odt




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 

                          NAGPUR BENCH, NAGPUR.


                           WRIT PETITION NO. 1457  OF 2016



 M/s. Golechha Housing and Infrastructure 
 Pvt. Ltd., A Company incorporated under 
 the Indian Companies Act, 1956, having its 
 Registered Office at 2, Arihant Apartment, 
 M-6, Laxmi Nagar, Nagpur-22, through its
 Director Shri Ashwin Golechha. 
                                                                        ....  PETITIONER.

                                     //  VERSUS //

 1. Shri Sanjay S/o. Mohan Rao,
    aged about 50 years, Occu.: Nil, 
    At Post Regunta, Tah. Aheri, 
    Dist. Gadchiroli. 

 2. The Collector, Nagpur,
    Civil Lines, Nagpur. 

 3. Smt. Smita Shrikrishna Choudhary,
    aged about 43 years, Occ.: Business,
    R/o. C/o. Mukta Pandharinath Kadu,
    Plot No.129/C, Deepak Housing Society,
    Dubey Nagar, Hudkeshwar Road,Nagpur.
                                                   .... RESPONDENTS
                                                                     .
  ___________________________________________________________________
 Shri A.G.Gharote, Advocate for Petitioner. 
 Shri Shyamal Kadu, A.G.P. for Respondent No.2.
 Shri M.S.Mendhe, Advocate for Respondent No.3.  
 ___________________________________________________________________


                              CORAM : S.C.GUPTE, J.

DATED : AUGUST 08, 2017.

ORAL JUDGMENT :

Judgment 2 wp1457.16.odt

1. Heard learned counsel for both parties.

2. RULE. Rule made returnable forthwith and taken up for

hearing by consent of the parties.

3. This petition challenges an order passed by the Civil Judge

Senior Division, Nagpur on 19th November, 2015. By this order, the learned

Judge allowed the application for impleadment filed by respondent No.3

herein.

4. The facts in brief leading to the respondent's application for

impleadment and the order passed thereon may be noted as follows:

The suit property in the present case belonged to one

B.Vyankanna Somayya, also known as Hanumantrao, who died in the year

1950. Before his death, Hanumantrao had executed a will in respect of the

suit property. Under this will, the suit property was bequeathed to Narayan

Rangrao, who was the only relation of late Hanumantrao. A probate was

granted in respect of the will by the Additional District Judge, Nagpur. The

order granting probate was challenged in an appeal before this Court. The

appeal was dismissed by the Division Bench of this Court confirming the

finding of the District Judge. Pursuant to this order, Rangrao filed

Succession Case No.1 of 1955, in which a Succession Certificate was issued

by the Civil Judge (Class-I), Nagpur on 2 nd July, 1955. Subsequent to this

Judgment 3 wp1457.16.odt

Succession Certificate, Rangrao executed sale deeds on 13 th February, 1956

and 8th February, 1957 conveying the property to Jaglal Jaiswal for a

valuable consideration. As a result of inter se disputes between members of

Jaiswal family, the matter pertaining to the title of the suit property became

the subject matter of a civil suit between them, being Regular Civil Suit No.

212 of 1991. A decree was passed in this suit on 26 th September, 1996,

restraining one branch of Jaiswal family perpetually from executing any

transfer in respect of the suit property. This decree was based on a judgment

holding that by a family arrangement between Jaiswals, the property was

allotted to one Kishanlal Jaiswal and the plaintiffs being legal representatives

of Kishanlal (since deceased) were legally entitled to the same. The

judgment and decree was challenged by some of the family members of

Jaiswals by way of an appeal. There was a delay in filing that appeal and as

a result, an application for condonation of delay was moved on behalf of the

appellants. That application was dismissed by the District Judge, Nagpur.

The matter rested at that and there was no further challenge to the title of

the plaintiffs in that suit, who were legal representatives of the deceased

Kishanlal. On or about 2 nd November, 2006, the present petitioner claims to

have purchased this property from the plaintiffs in Regular Civil Suit No. 212

of 1991. Sometime in 2008, respondent No.1 herein filed a civil suit along

with an application in forma pauperis before the Civil Judge Senior Division,

Nagpur. The suit was registered as Special Civil Suit No. 101 of 2013.

Respondent No.1 impleaded legal representatives of deceased Kishanlal, who

Judgment 4 wp1457.16.odt

were all plaintiffs in Regular Civil Suit No.212 of 1991, as defendant Nos. 1

to 20 and the present petitioner is defendant No.21. The prayer of

respondent No.1 in that suit was for a declaration of his ownership of the suit

property. He claimed to be a successor of the suit property by way of

intestate succession from the deceased-Hanumantrao. He prayed for delivery

of possession of the suit property based on his title. A compromise was

arrived at in this suit between respondent No.1 herein (plaintiff in that suit)

and the petitioner herein (defendant No.21 in that suit). (Jaiswals who were

arrayed as defendant Nos. 1 to 20 already deleted from the array of parties

as respondent No.1 did not desire to prosecute them). When the

compromise was presented to the Civil Judge Senior Division for passing a

decree in terms thereof, the present respondent No.3 applied for intervention

in the suit, praying for addition as a party defendant. This application was

allowed by the learned Judge in the impugned order. The learned Judge

held that for effectual and complete adjudication of the dispute about the

ownership of the property, the applicant was required to be added as a party

defendant, such addition would help the parties to settle all the questions

involved in the suit. This order is challenged in the present petition.

5. It is trite to say that the plaintiff being dominus litis always has

an option to choose his opponents. The plaintiff cannot ordinarily be

compelled to sue any person against whom he does not seek any relief.

There are, of course, some well-known exceptions to this ordinary rule and

Judgment 5 wp1457.16.odt

those are contained in the provisions of Order 1 Rule 10(2) of the Code of

Civil Procedure. The plaintiff's choice apart, the Court has the discretion to

add or strike out any party to the suit under Rule 10(2) of Order 1. Insofar

as addition is concerned, a party which ought to have been joined (necessary

party), that is to say, a party in whose absence no decree can be passed in the

suit, or a party whose presence before the Court is necessary in order to

enable the Court to effectually and completely adjudicate upon and settle all

the questions involved in the suit (proper party), may be added by the Court

in its discretion as a party to the suit.

6. In the present case, it cannot obviously be suggested that

respondent No.3 herein is a necessary party in the sense that in her absence

no decree could be passed in the suit for declaration filed by the plaintiff

(respondent No.1 herein).

7. Let us now consider if the applicant can be impleaded as a

proper party. The suit filed by respondent No.1 herein seeks a declaration of

his rightful ownership of the suit property. It also seeks a declaration that the

defendants, who include the Jaiswals claiming through the deceased

Kishanlal (defendant Nos. 1 to 20) as well as the petitioner herein

(defendant No.21 to the suit) claiming a transferee of the Jaiswals, are not

legal owners of the suit property. The sale-deed executed by Jaiswals in

favour of the petitioner herein was sought to be challenged in the suit as

Judgment 6 wp1457.16.odt

illegal, null and void. The question now is, can it be said that the presence of

respondent No.3 who claims as agreement purchaser under respondent

No.1(plaintiff to the suit) is necessary to effectually and completely

adjudicate upon and settle the questions raised by respondent No.1 in the

suit and contested by the Jaiswals and the petitioner herein.

8. In a challenge filed by respondent No.1 to the sale deed

executed by Jaiswals in favour of the petitioner herein, Respondent No.3 is a

complete stranger. The question in the suit is whether Jaiswals had the title

to the suit property and whether it was duly conveyed by Jaiswals in favour

of the petitioner herein. Respondent No.3 has nothing to contribute either

by way of defence or attack insofar as this question is concerned. She claims

independently of both, i.e. Jaiswals and the petitioners. Her presence is not

even necessary to convey or pass on any title to any of the parties to the suit,

since she merely claims as an agreement purchaser. She has admittedly filed

her own suit seeking specific performance of her alleged agreement for sale

against respondent No.1(plaintiff). Both Jaiswals as well as the petitioner

herein are parties to that suit. In any event, any decree that may be passed

in the present suit based on the compromise between the parties or otherwise

can never bind respondent No.3. She succeeds or fails on the merits of her

own case as an agreement purchaser under respondent No.1.

Judgment 7 wp1457.16.odt

9. Learned counsel for respondent No.3 relies on the judgment of

the Supreme Court in the case of Baluram vs.. P. Chellathangam, reported in

2010(7) SCC 417, in support of his case that respondent No.1 is a proper

party in the present suit. In fact, the Supreme Court in this case went on to

explain that a person, who is neither necessary nor proper party, cannot be

impleaded as a party to the suit against the wishes of the plaintiff, even if

such a person is likely to secure some right or interest in the suit property

after the suit is decided against the plaintiff. Relying on the principles of law

laid down in the well-known case of Kasturi vs. Iyyamperumal, reported in

AIR 2005 SC 2813, the Supreme Court held the following persons to be

necessary parties :

i) parties to the contract which is sought to be enforced or their legal representatives; and

ii) a transferee of the property, which is the subject-matter of the contract.

No doubt the Court also held that a person who has a direct

interest in the subject-matter of the suit for specific performance of an

agreement for sale may also be impleaded as a proper party on his

application under Order 1 Rule 10. The present suit, though, is not suit for

specific performance. The present suit is for declaration of the plaintiff's title

and for setting aside of the sale-deed executed between the defendants in

respect of the suit property. Respondent No.3 is neither a transferee of the

suit property nor does she have any right to challenge the transfer as

Judgment 8 wp1457.16.odt

between Jaiswals and the petitioner within the framework of the present suit.

10. Even if a compromise decree were to be passed on the

application of the plaintiff and defendant No.21, the applicant/ respondent

No.3 herein would have no right to challenge such a decree. The

compromise decree is merely based on the agreement arrived at between the

parties to the suit which gets a seal of approval from the Court. Any stranger

to the suit is obviously a stranger to the compromise. He cannot file any

application in the suit to challenge the compromise decree, as he is not a

party to the suit. In fact, that is the basis on which the bar under Rule 3A of

Order 23 is not extended to him. That provision is confined merely to the

parties to the suit who are parties to the compromise. I am fortified in this

view by the judgment of a learned single Judge of our Court in the case of

Khalil Haji Bholumiya Salar ..Vs. Praveen Sayyedudin, reported in 2013(6)

Bom.C.R. 841.

11. In the premises, the impugned order of the Civil Judge Senior

Division cannot be sustained. Respondent No.3 being neither a necessary nor

a proper party to the suit as between respondent No.1 on one hand and

Jaiswals and the petitioner herein on the other, cannot be impleaded against

the wishes of respondent No.1 (plaintiff) in his suit.

12. In that view of the matter, the petition is disposed of in terms of

the following order:

            Judgment                                              9                                wp1457.16.odt




                                     i)      The impugned order, dated 19th November, 2013,

passed by the Civil Judge Senior Division, Nagpur is

quashed and set aside.

ii) The application for impleadment moved by

respondent No.3 (being Exh.No.52 in Special Civil Suit

No.101/2013) is dismissed.

13. Rule is accordingly made absolute. There will be no

order as to costs.

14. On the application of respondent No.3, this order is stayed for a

period of four weeks from today.

JUDGE

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