Bombay High Court

Ayyub Shah Haidar Shah And Others vs Ajay Dhananjay Daware And Others on 22 June, 2017

Bench: Dr. Shalini Phansalkar-Joshi

2206 CRA  94/2016                             1                        Judgment


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH AT NAGPUR.

              CIVIL REVISION APPLICATION NO. 94/2016 


1]     Ayyub Shah Haidar Shah,
       Aged about 53 years, Occu: Agriculturist,

2]     Omprakash Jagannath Dhannawat,
       Aged about 66 years, Occu: Agriculturist,

3]     Sau. Sheelabai Omprakash Dhannawat,
       Aged about 61 years, Occu: Agriculturist,

4]     Yajurved Omprakash Dhannawat,
       Aged about 33 years, Occu: Agriculturist,

       All are R/o. Bazar Line, Old Nagar Parishad
       Chowk, Deulgaon Raja, Tq. D. Raja,
       District - Buldana.                         PETITIONERS

                                .....VERSUS.....

1]     Ajay Dhananjay Daware,
       Aged about 46 years, Occu: Business,
       R/o. Yashodhara Nagar, Bobdey Colony,
       Khamgaon, Tq. Khamgaon, Distt. Buldana.

2]     Ghanshyamdas Jankidas Mundhada,
       Aged about 56 years, Occu: Business
       and agriculture,
       R/o. Swastik Sadan, Ward No.4,
       Nandura, Tq. Nandura, Distt. Buldhana.

3]     Shivlal Bhaudas Mundhada,
       Aged about 59 years, Occu: Business 
       and agriculture,
       R/o. Mundhada Bhawan, Station Road,
       Nandura, Tq. Nandura, Distt. Buldhana.


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 2206 CRA  94/2016                               2                         Judgment



4]     Dinesh Girdhardas Mundhada,
       Aged about 41 years, Occu: Business
       and Agriculture,
       R/o. Mundhada Bhawan, Station Road,
       Nandura, Tq. Nandura, Distt. Buldhana.

5]     Kushal Daudayal Mundhada,
       Aged about 28 years, Occu: Business
       and Agriculture,
       R/o. Swastik Sadan, Ward No.4,
       Nandura, Tq. Nandura, Distt. Buldhana.               RESPONDE NTS
                                                                        


       Shri F.T. Mirza, counsel for the petitioners.
       Shri H.R. Gadhia, counsel for respondent no.1.


                   CORAM  : DR. SMT. SHALINI PHANSALKAR-JOSHI, J.

                DATE      : JUNE 22, 2017.


ORAL JUDGMENT :

This revision challenges the legality, validity and

propriety of the order dated 16/09/2016 passed by the Civil Judge

(Sr. Dn.), Khamgaon in Special Civil Suit No. 37/2015 below

Exh.21, thereby rejecting the application filed by the petitioners

under Order VII Rule 11 CPC.

2] For the sake of convenience, the parties are referred to

by their original nomenclature, in this revision also.

 2206 CRA  94/2016                                  3                          Judgment


3]              Petitioners   herein   are   original   defendant   nos.5   to   8.

They had filed the application before the trial court submitting that

respondent-plaintiff has filed the suit for specific performance of

contract alleging that defendant nos.5 to 8 have agreed to sell the

property to the plaintiff. It is submitted that in fact the suit property

is owned by the defendant nos.5 to 8 and they had never agreed to

sell the suit property to the plaintiff. Thus, there is no privity of

contract between plaintiff and defendant nos.5 to 8, and in such

situation, plaintiff cannot have any claim against them. Therefore,

they should not have been joined in the instant suit. They are not at

all necessary and proper party to the suit. There is no cause of

action for filing the suit against them, and hence, on this count,

plaint should be rejected under Order VII Rule 11(a) CPC and these

defendants be discharged from the suit by deleting their names from

the plaint.

4] This application came to be resisted by plaintiff

contending inter alia that defendant nos.5 to 8 had previously

entered into an agreement regarding their respective fields with

defendant no.3 Dinesh Mundada and thereafter Dinesh Mundada

has executed a written agreement of sale in favour of the plaintiff

2206 CRA 94/2016 4 Judgment

and obtained substantial amount of consideration. Now in order to

deprive the plaintiff from getting the specific performance of

contract and possession of the suit land, defendant nos.5 to 8 had

entered into different sale deeds of their respective portions with

defendant no.1, 2 and 4. Thus, it was submitted that the present

defendants are necessary parties to the suit. In the alternative, it was

submitted that the averments in the plaint sufficiently disclose the

cause of action against these defendants also, and hence, the plaint

cannot be rejected, at threshold under the provisions of Order VII

Rule 11(a) CPC, especially, as only a part of the plaint cannot be

rejected. It was submitted that application filed under Order VII

Rule 11 CPC, was, therefore, misconceived and liable to be rejected.

5] On this application, learned trial court heard both the

parties and vide its impugned order, rejected the said application

holding that averments in the plaint which are to be taken at face

their value at the stage of deciding the application under Order VII

Rule 11 CPC, sufficiently disclose the cause of action against the

present defendants also, therefore, the application was not tenable,

and hence, liable to be rejected.

 2206 CRA  94/2016                                 5                          Judgment


6]              While   challenging   this   order   of   the   trial   court   before

this court, submission of learned counsel for the petitioners is that

the respondent-plaintiff has filed this suit for specific performance of

contract. As per Section 19 of the Specific Relief Act, 1963, such suit

can be filed, only against the person who has executed the

agreement or any other person claiming under it by title arising

subsequently to the contract or any person claiming under a title

which though prior to the contract and known to the plaintiff, might

have been displaced by the defendant. Here it is urged that these

defendant nos.5 to 8 are neither the party to the contract nor they

are claiming under defendant no.3 who had allegedly executed

agreement with the plaintiff nor the present defendants are claiming

under a title though prior to the contract and known to the plaintiff,

might have been displaced by the defendants. To substantiate this

submission, learned counsel for the petitioner has relied upon the

land mark judgment of the Hon'ble Supreme Court in the case of

Kasturi -Vs- Iyyamperumal and others, (2005) 6 Supreme Court

Cases 733, wherein while considering the provisions of Section 19

of the Specific Relief Act and the provisions of Order 1 Rule 10(2)

CPC, it was held that "Two tests are to be satisfied for determining the

2206 CRA 94/2016 6 Judgment

question who is a necessary party for the suit for specific performance

of contract and those two tests are (1) there must be a right to some

relief against such party in respect of the controversies involved in the

proceeding, (2) no effective decree can be passed in the absence of such

party".

7] It is submitted that none of these conditions or tests are

satisfied in respect of the present defendants, and hence, there is no

cause of action for filing the suit against them.

8] At this stage, learned counsel for respondents has relied

upon the later decision of the Hon'ble Supreme Court in the case of

Sumtibai and others -Vs- Paras Finance Co. and others, 2007

DGLS (SC) 1110, wherein this decision of the Hon'ble Apex Court in

the case of Kasturi -Vs- Iyyamperumal (supra) was distinguished

and it was held that, "In our opinion it cannot be laid down as an

absolute proposition that whenever a suit for specific performance of

contract is filed by A against B, a third party C can never be impleaded

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

2206 CRA 94/2016 7 Judgment

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."

9] In my considered opinion, reliance placed by learned

counsel for petitioner on the provisions of Section 19 of the Specific

Relief Act, 1963 and also on the judgment of Kasturi -Vs-

Iyyamperumal (supra) is totally misplaced because the very

application filed by the petitioner before the trial court was not

under Order 1 Rule 10(2) CPC, but for rejection of the plaint on the

ground that it does not disclose the cause of action against the

present petitioners-defendants. Therefore, it was necessary for the

petitioner to show that plaint is conspicuously silent about any cause

of action or averment against these defendants. Perusal of the plaint,

however, clearly reveals that in para no.3, it is specifically averred as

follows :-

"3. It is submitted that, the defendant nos.5 to 8 previously entered into an agreement regarding to their respective fields with defendant no.3 Dinesh Mundhada by way of written agreement deed. After entered into an agreement regarding the suit field by defendant no.3 with defendant no.5 to 8, the said defendant no.3 intending to

2206 CRA 94/2016 8 Judgment

transfer of said field by way of sale transaction with another person on the basis of that written agreement deed. Therefore, the defendant no.3 asked to the estate brokers and public nearby regarding his intention."

There are also averments in para no.11, as follows :-

"11. That, the doubt is created in the mind of the plaintiff regarding the act of the defendant no.3, hence the plaintiff personally made enquiry before the revenue authority as well as Sub-Registrar, Khamgaon, that time the plaintiff surprised after getting knowledge that the defendant nos.1 to 4 get executed a registered sale deed from the defendant nos.5 to 8 without given any knowledge and behind the back of plaintiff. That after collecting the copies of concerned sale deeds, the plaintiff came to know that, there are in all four sale deeds of the suit property bearing field Gut No.58. In this way the defendant nos.5 to 8 executed sale deeds of whole suit field in favour of defendant nos.1 to 4."

Again in para no.15, there are averments as to the exact

cause of action. Therefore it cannot be said that the plaint was

conspicuously silent about the cause of action against the present

petitioners. The law is well settled that at the stage of deciding the

application for rejection of the plaint under Order VII Rule 11 CPC

on the count that it does not disclose the cause of action, the

averments in the plaint are to be taken at their value value and for

that purpose, entire plaint as a whole is required to be read.

 2206 CRA  94/2016                                 9                          Judgment


10]             Here in the case, wholistic reading of the plaint clearly