Mr. Abdul Rehman A Latif Patel vs Mr. Rizwan Sayed Abdul Gafoor And ...
2017 Latest Caselaw 6930 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIVIL APPELLATE JURISDICTION

                       WRIT PETITION NO. 291 OF 2016

Mr.Rizwan Sayed Abdul Gafoor & Ors.                           ...Petitioners

         Versus

Aayashabi Mahammed Rafiq Patel
(since deceased) through her legal heirship
Mohammed Rafiq Dawood Patel & Ors.                            ...Respondents

                                  WITH
                    CIVIL APPLICATION NO. 290 OF 2017
                                    IN
                      WRIT PETITION NO. 291 OF 2016

Mr. Abdul Rehman A Latif Patil                                ...Applicant

IN THE MATTER BETWEEN

Mr.Rizwan Sayed Abdul Gafoor & Ors.                           ...Petitioners

         Versus

Aayashabi Mohammed Rafiq Patel & Ors.                         ...Respondents
                           ......

Mr.S.S.Kanetkar i/b.Mr.Sumit S.Kothari   a/w Ms.Shivani S.Samel
for the Petitioners.
Mr.Balkrishna D. Joshi for Respondent Nos. 1 (a) to 1 (d).
Mr. P.S. Dani, Senior Advocate for Respondent No.2.
Mr.S.S.Punde for Respondent Nos. 3.
Mr.R.S.Apte,   Senior   Advocate   a/w   Mr.   S.J.Chaurasia   a/w.   Mr.
Ashok Kharwar i/b. Ashoka Law Firm for Respondent Nos. 2,5,6,8
and 10.




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Mr.Virendra V. Pethe for Respondent Nos. 11 to 16, 17 (A) and 17
(B).
Mr.V.S.Talkute i/b. Mr. Prashant D. Jadhav for Respondent No.7 in
Writ Petition No. 291 of 2016 and the applicant in Civil Application
No. 290 of 2017.
Mr. Rohit P. Sakhadeo for Respondent No.18.
                               ......

                                    CORAM    : MRS.MRIDULA BHATKAR, J. 
                                    RESERVED ON: JULY 17, 2017
                                    PRONOUNCED ON: SEPTEMBER 08, 2017

JUDGEMENT :

1. Rule. Rule made returnable forthwith. By consent, petition is

heard finally and disposed of at the stage of admission.

2. This Writ Petition is directed against the order dated

19.12.2015 passed by the Civil Judge, Senior Division, Panvel,

thereby rejecting the application below Exhibit 148 filed by the

present petitioners for impleading them as a party to the

proceedings. Respondent No.1/original plaintiff had filed Suit No.

109 of 1999 for a declaration that she has 1/18th share in the suit

property and also the land which was given to the original owner

under 12.5 scheme by the respondent-CIDCO. She has filed the

Suit also for partition and injunction against the defendants. The

petitioners herein (who are the applicants in Exhibit 148 filed in

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Special Civil Suit No. 109 of 1999) are third party and have

claimed their right and share in the suit property and the land

which is going to be alloted under 12.5. scheme by CIDCO on the

basis of Memorandum of Understanding dated 10.05.2005 and the

Deed of Assignment dated 03.07.2013, which was executed in their

favour and, therefore, they moved an application at Exhibit 148 on

13.04.2015 in the said Suit that they be impleaded as a party. The

facts of the case in brief are as follows:

3. During the pendency of Special Suit No. 109 of 1999, the

original plaintiff Aayashabi (i.e. the deceased) executed the

Memorandum of Understanding in favour of the petitioners in

respect of her share in the land and she had accepted Rs. 5 lakhs at

the time of execution of Memorandum of Understanding. She

expired on 21.01.2006. Her legal heirs were brought on record as

plaintiff nos. 1 (A) to 1 (D). Thereafter, the plaintiffs in the year

2008 gave pursis at Exhibit 119 for withdrawal of the Suit.

Respondent Nos. 11 and 12 i.e. two sisters of the original plaintiff

had also filed a Special Suit No. 119 of 2008 for partition. In the

said Suit, the application dated 14.04.2013 was filed by the

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petitioners for impleading them as a party in the said proceedings.

The said application was allowed and the present petitioners were

impleaded as party defendants in Special Suit No. 119 of 2008.

Against the said order, two Writ Petitions bearing no. 4580 of 2013

and 5513 of 2013 were filed and both the Writ Petitions were

dismissed on merits by the High Court, vide order dated

30.07.2013. On 03.07.2014, a pursis was filed in Special Suit No.

119 of 2008 for withdrawal of the Suit by those plaintiffs, however,

it was rejected. The said order was challenged in Civil Revision

Application No. 66 of 2015 and the High Court allowed the said

Civil Revision Application, vide order dated 11.02.2015. Hence,

Suit No. 119 of 2008 was allowed to be withdrawn, vide order

dated 11.02.2015 by the High Court. On 03.07.2013, respondent

nos. 1 (A) to 1 (D) i.e. the legal heirs of the original plaintiff have

executed separately a registered Deed of Assignment in favour of

the petitioners on the basis of earlier Memorandum of

Understanding dated 10.05.2005 and accepted further amount of

Rs. 50,00,000/-. On 02.09.2013, the legal heirs of the original

plaintiff i.e. 1 (A) to 1 (D) have filed the application for impleading

the petitioners as a party to Suit No. 109 of 1999. However, the

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said application was subsequently withdrawn in September 2016

and 'No Order' was passed by the Court on it. On the basis of the

Deeds of Assignment, the application at Exhibit 148 dated

13.04.2015 was moved by the petitioners to implead them i.e.

assignees as a party to Special Suit No. 109 of 1999. On

02.05.2015, the trial Court had rejected the application at Exhibit

148. Writ Petition No. 5337 of 2015 was preferred against the

said order. The High Court while remanding the said matter

directed the trial Court to consider the provisions under Rule 10

Order 22 of the Code of Civil Procedure, 1908 (hereinafter referred

to as "the C.P.C.") Thereafter, the trial Court heard that

application and again rejected the same. Hence, this Writ Petition.

4. Mr.Kanetkar, learned counsel for the petitioners has

submitted that the learned Judge has not properly considered the

provisions under Rule 10 Order 22 of the C.P.C. He has committed

a factual error in the order holding that Memorandum of

Understanding and the Deeds of Assignment were executed before

filing of the Suit and the application had filed on the basis of the

said documents. Thus, the learned trial Judge has erroneously held

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that Rule 10 Order 22 of the C.P.C is not applicable to the present

case. He has further submitted that the case of the petitioners is

squarely covered under Rule 10 Order 22 of the C.P.C. and,

therefore, specific directions were given by this Court while

remanding the matter, however, the learned trial Judge has failed

to follow the directions of this Court. He has further submitted

that the order dated 11.02.2015 passed by this Court in C.R.A. No.

66 of 2015 was in respect of withdrawal of the Suit and the said

order is not pertaining to the issue of impleading the applicant as a

party to Special Civil Suit No. 119 of 2008 and, therefore, the

observations made in that order cannot be made directly applicable

to the present case. On the point of Rule 10 Order 22 of the C.P.C,

he has argued that it is necessary to take into account the language

used in Rule 10 Order 22 of the C.P.C. If there is devolution of

interest due to assignment, transfer or any other act after filing of

the Suit, then the Suit can be continued by impleading other

person as a party to the Suit. The present petitioners have claimed

their rights on the basis of registered Deed of Assignment executed

by the original plaintiff and also through Memorandum of

Understanding executed by the original plaintiff. He has further

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argued that the plaintiffs themselves had filed the application at

Exhibit 131 requesting the Court that the petitioners be added as

party plaintiffs in the Suit, the said application in September 2016

was withdrawn after the matter was remanded. He has further

submitted that the petitioners had paid total amount of Rs. 55

lakhs (5 + 50 lakhs) to the plaintiffs and purchased undivided

share of the original plaintiff in the suit property. The Suit for

partition was filed by the plaintiffs, in which the petitioners are

necessary and proper parties and the order passed by the learned

trial Judge is to be set aside. He has relied on the following

rulings:-

(1) Dhurandhar Prasad Singh Versus Jai Prakash University

and others., reported in (2001) 6 Supreme Court Cases

534;

(2) Ebrahim Mulla Rasuljis Versus Chhatrasinhji

Samatasinhji & Anr., reported in 1954 AIR (Saurashtra)

20;

(3) C.Wright Neville Versus E.H.Freser, reported in AIR 1944

Nag 137;

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(4) Jawaharlal Shivraj Lunkad Versus Saraswatibai Babulal

Joshi and others, reported in 1986 Mah LJ 225.

5. Mr. Joshi, learned counsel for the original plaintiffs, has

opposed this petition and submitted that the petitioners have

played fraud on the original plaintiffs under pressure and false

promise. They got Deeds of Assignment executed in their favour by

the original plaintiffs. He has further submitted that the plaintiffs

did not receive any amount of Rs. 50 lakhs, but the plaintiffs were

cheated by the petitioners and, therefore, they had filed a

Declaratory Suit No. 375 of 2015 and also lodged a criminal case

with the police before the Magistrate, wherein the investigation is

directed. He has further submitted that the original plaintiffs had

filed two pursis, one in the year 2007 at Exhibit 119 and thereafter

on 27.02.2013 at Exhibit 128 for withdrawal of the said suit. He

has further submitted that as soon as such pursis are filed,

permission of the Court is not required for withdrawal of the Suit

and it is deemed to be withdrawn on that day. In support of his

submission, he relied on the following rulings:-

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     (1)      Anil   Dinmani   Shankar   Joshi   &   Another   Versus   Chief

Officer, Panvel Municipal Council & another, reported in

2003 (3) Bom. C.R.856;

(2) Anil Kumar Singh Versus Shivnath Mishrar ALIAS GADASA GURU, reported in (1995) 3 Supreme Court Cases 147.

6. Mr. Dani and Mr. Apte, learned senior counsel, have

submitted that under Rule 10 Order 22 of the C.P.C., it is not

mandatory for the Court to pass an order of continuation of the

Suit in the case of devolution of interest, even though, there is a

devolution of interest in the suit property to the third party. He has

further submitted that alongwith the original plaintiffs, other

sharers cannot be made sufferer when the original plaintiffs want

to withdraw the Suit.

7. Mr. Apte, learned senior counsel for respondent nos. 2,5,6,8

and 9 has adopted the submissions made by Mr. Dani so also Mr.

Talkute has adopted the submissions of Mr. Joshi and Mr. Dani. Mr.

Talkute, learned counsel, relied on the judgment of Akka Bai and

Anr. Vs. Gowrawwa reported in AIR 1990Kant.278. Mr.Talkute

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has further relied on the judgment in the case of Hulas Rai Baij

Nath Versus Firm K.B.Bass and Company, reported in 1968 AIR

(SC) 111.

8. Learned counsel for the CIDCO has relied on the affidavit

filed by one Kishan N. Jawale, wherein he has said that entitlement

of Abdul Latif i.e. the original owner, father of Aayashabi is not yet

sanctioned till date.

9. Learned counsel of both the sides have relied on a number of

cases on the point of withdrawal of the Suit under Rule 1 Order 23

of the C.P.C. and so also continuation of the Suit due to devolution

of interest under Rule 10 Order 22 of the C.P.C. It is convenient to

consider the ratio laid down in those cases before dealing with the

merits of the present case. The ratio is culled out as follows:

10. In the case of Dhurandhar Prasad Singh (supra), the

Supreme Court has held as under :-

"Order 22 Rule 10 CPC is based on the principle that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of the suit has devolved upon another during its pendency but such a suit may be continued with the leave of the

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court by or against the person upon whom such interest has devolved. But, if no such step is taken, the suit may be continued with the original party and the person upon whom the interest has devolved will be bound by and can have the benefit of the decree, as the case may be, unless it is shown in a properly constituted proceeding that the original party being no longer interested in the proceeding did not vigorously prosecute or colluded with the adversary resulting in decision adverse to the party upon whom the interest had devolved".

11. In the case of Ebrahim Mulla Rasuljis (supra), the learned

Single Judge of the Saurashtra High Court has referred the case of

Rai Charan v. Biswa Nath, reported in AIR 1915 Cal 103 (B),

wherein it is held as under :-

"3..... The litigation will continue in his name for the benefit of his successor. In the alternative the Civil Procedure Code, O. 22, R.10, provides that by leave of the Court the successor in interest may get himself substituted as plaintiff. This is a provision against the danger that the original plaintiff being no longer interested in the proceedings may not vigorously prosecute them or may even collude with the adversary. In such a case the successor in interest who has not got himself substituted is bound by the decision and has no remedy. No doubt O. 22 R.10, gives the Court a discretion in allowing or refusing such an application by the successor in interest but leave should not be unreasonably refused".

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12. In the case of Jawaharal Shivraj Lunkad (supra), the

learned Single Judge of this Court has held that when the

application is made for continuing the Suit under Rule 10 Order 22

of the C.P.C., a full scale enquiry about the existence and validity of

the assignment or devolution of interest would not be necessary at

the stage of granting leave under Rule 10 Order 22 of the C.P.C.

Similarly, it also relied on the precedent laid down in the case of

C.Wright Neville v. E.H.Freser, reported in AIR 1944 Nagpur

137, in which it was held that the assignment was disputed was no

ground for refusing leave and the Court could enquire into the

factum and validity of the assignment.

13. In the case of Anil Kumar Singh (supra), the Suit was filed

for specific performance of the contract in respect of immovable

property and the application was made that he be impleded as a

party defendant because he got interest as co-owners. Even though,

such decree of co-ownership is acquired in favour of a person, leave

can be refused to add him as a party defendant when no relief is

claimed against him and he was not a party to the agreement of

sale.

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14. In the case of Anil Dinmani Shankar Joshi (supra), the

learned Single Judge of this Court while dealing with Rule 1 Order

23 of the C.P.C. by giving reference to the judgment in the case of

Shiv Prasad v. Durga Prasad, reported in 1975 (1) SCC 405 has

held that withdrawal is not dependent on the order of the Court.

The act of withdrawal is complete as soon as the plaintiff intimates

the Court that he wants to withdraw the Suit. The Court may make

a formal order disposing of the Suit as withdrawn, but the

withdrawal of the Suit is not dependent on the order of the Court

and the Court cannot refuse to allow the withdrawal on the ground

that the person against whom the suit is sought to be withdrawn is

a necessary party.

The present case is not of non-joinder of the necessary parties

as defendants, but the applicant has filed the application below

Exhibit 148 that he be impleaded as a party plaintiff being

assignee.

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15. In the case of Hulas Raj Baij Nath (supra), the Suit was filed

for rendition of accounts and the question was whether the plaintiff

is entitled to withdraw from the suit at the stage when the issues

were framed and the evidence is recorded, however, no preliminary

decree for rendition of accounts was passed in the said matter. The

Supreme Court has held that under Sub Rule (1) Order 23 of the

C.P.C., gives an unqualified right to the plaintiff to withdraw from

a Suit. However, in the said matter, the Supreme Court has given a

reference of Division Bench of the Madras High Court in the case of

Seethai Achi v. Meyappa Chettiar and others, reported in AIR

1934 Mad 337, wherein the Division Bench of the Madras High

Court has held that the plaintiffs right though is unqualified to

withdraw, but due to some exceptions, the suit will not be

dismissed if by reason of withdrawal of the plaintiff for the obvious

reason that the rights declared in favour of the defendants would

be rendered nugatory under the preliminary decree if the Suit is

allowed to be withdrawn. Thus, under certain situations

withdrawal is not to be necessarily permitted if the defendant is

entitled to relief in his favour. In the case in hand, it is not

defendant, but the assignee of the interest of the plaintiff wants to

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be added as a plaintiff under Rule 10 Order 22 of the C.P.C. As

the plaintiffs and the defendants want to compromise the Suit, the

plaintiffs seek to withdraw the Suit.

16. In the case of Akka Bai (supra), the Division Bench of the

Karnataka High Court has held that while deciding the application

under Rule 10 Order 22 of C.P.C., the Court may look into the

aspect of delay and latches and so also when there is a dispute

between the parties, then the Court may reject such applications

and allow the disputed question of fact or law to be decided

elsewhere.

17. It is true that the trial Court has erred in holding that the

Agreement, i.e., Memorandum of Understanding dated 10.05.2005

which is the base of the assignment, has taken place before filing of

the suit as it is factually wrong. The suit is of 1999 and original

plaintiff Aayashabi has executed MOU for Rs.5 lakhs and has

allegedly sold her rights in favour of the applicant. Another Deed

of Agreement dated 03.07.2013 was executed between the present

petitioner and the legal heirs of original plaintiffs for

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Rs.50,00,000/-. Thus, the right and interest in the suit prima facie

is devolved upon the petitioners. The plaintiffs have also made an

Application on 02.09.2013 below Exhibit 131 for impleading

assignee, i.e., petitioner as party plaintiffs. However, the said

application was withdrawn by the applicant in September, 2016.

18. Albeit these two facts in favour of the petitioners, there are

certain circumstances and factual aspects, which are also to be

taken into account while considering impleadment of the

petitioners -

(i) The petitioners and plaintiffs are singing different tunes as

the plaintiffs have challenged the assignment. The plaintiffs

have filed Declaratory Suit No. 375 of 2015 against the

present petitioners in respect of Deed of Assignment. So

also, criminal case of forgery and cheating is pending

between the petitioners and legal heirs of the plaintiffs.

(ii) The plaintiffs have also filed two applications for withdrawal

of the suit, one in 2008 and other in 2013. Considering the

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provision of Rules 1 and 2 Order 23 of the C.P.C., such

application for withdrawal of suit ought to have been

disposed of by the Court immediately. Surprisingly, first

Application of 2008 was kept pending and then the plaintiffs

filed second Application with similar request in the year

2013 and that was also kept pending. The plaintiffs enjoy

unqualified right to prosecute or withdraw the suit. The

present plaintiffs cannot be compelled to proceed with the

matter, so the application is necessarily to be allowed.

It is also to be mentioned that earlier Special Civil Suit No.

119 of 2008 filed by two sisters of Aayashabi for similar

relief of partition was allowed to be withdrawn. The

Application for withdrawal of the suit was opposed by the

present petitioners, who were defendant nos. 15 to 17.

While allowing the said Application, this Court by order

dated 11.02.2012 has made reference of the pendency of

this suit and the present application made by the assignee.

However, in the present suit also, the plaintiffs have asked

for unconditional withdrawal of the suit, which cannot be

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refused.

(iii) The present suit is for partition and under Order 22 of CPC,

the same old suit to continue with same prayers. However,

considering the nature of the dispute between the parties, it

appears that there may be other cause of action may expand

its scope beyond the present suit of partition. The

petitioners will have to seek relief against the present

petitioners which virtually will amount to putting the

present plaintiffs in a status of defendants. Thus, it will not

be consistent with the present frame of the suit and will be

chaotic due to the conflicting interest and the claim of

forgery and fraud made against each other. However, the

petitioners assignees cannot be rendered remedy-less and

the right to prosecute independently is always available to

them.

(iv)From the affidavit of CIDCO, it appears that the CIDCO has

not yet approved the entitlement of the original land owner.

(v) It was argued that earlier the advocate of the plaintiffs has

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withdrawn his appearance for the plaintiffs and has filed

appearance for the petitioners, i.e., applicants in Exhibit

148. This may not have direct bearing on the merits of the

matter. However, this fact weighs on the mind while

granting discretionary relief.

19. Thus, if leave is granted to the petitioners, then the Suit in

their hands is not a new Suit, it is a old suit carried on at the

instance of the petitioners and they are bound by all proceedings in

the said Suit. However, considering the conflicting interest and the

filing of a separate Suit for declaration by the plaintiffs against the

petitioners, the scope of the old Suit is going to be expanded. In

order to decide the application under Rule 10 Order 22 of the

C.P.C., the Court has to satisfy itself generally whether there is any

assignment or devolution of interest upon the applicant by the

plaintiff. If due to the application for withdrawal of the Suit made

under Rule 1 Order 23 of the C.P.C. by the plaintiff, the said

interest and right of the assignee or the applicant is in jeopardy,

then the Court may allow the application under Rule 10 Order 22

of the C.P.C. and also allow the plaintiff to withdraw from the Suit

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and the proceedings may not be withdrawn and the Suit to

continue. However, in the present case, the petitioners/ assignees

who are going to be substituted for the plaintiffs have conflicting

interest with the plaintiffs. The plaintiffs have denied the execution

of any agreement or any document with the petitioners. Though

Court need not go into the merits and proof of the facts, while

dealing with the application under Rule 10 Order 22 of the C.P.C.,

in view of peculiar facts of the present matter, I find it is not

judicious to use discretion to grant leave.

20. In view of the above, Writ Petition is dismissed.

21 In view of the dismissal of the Writ Petition, nothing survives

in the Civil Application and the same is disposed of as such.

22. The stay granted earlier on 08.01.2016 is extended by eight

weeks from today.

(MRIDULA BHATKAR, J.)