Bombay High Court

Reliance Enterprise And 2 Ors vs Vivek Mahadeo Mahale And 2 Ors And ... on 4 January, 2021

Bench: A. K. Menon

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    ORDINARY ORIGINAL CIVIL JURISDICTION


                  INTERIM APPLICATION (L) NO.3211 OF 2020
                                         IN
                               SUIT NO. 135 OF 2013


Reliance Enterprise & Ors.                              .. Applicants/plaintiffs
         Vs.
Vivek Mahadeo Mahale & Ors.                             .. Defendants
          And
M/s. K.D. Estate Developers & Ors.                      .. Respondents.



Mr.       Gautam       Ankhad      a/w    Mr.    Ashwin     Ankhad      for   the
applicants/plaintiffs.

Mr. Arif Doctor a/w Mr. Bimal Bhabhade i/b. Apte & Co. for defendant
no.1.
Ms. Mehek Bookwala i/b. Laxmi Jessai for respondent nos.2 to 23.
Mr. Anirudh Hariani i/b. Ms. Snehal Marathe for respondent nos.24 to
33.

                                           CORAM : A. K. MENON, J.

DATED : 4TH JANUARY, 2021.

P.C. :

1. By this application, the plaintiffs seek amendment in the cause

title of the plaint to join the legal heirs of defendant nos.2 and

3 as additional defendants and to add the respondent no.1 as

Ial-3211-20 wadhwa plaintiff no.4 and deleting plaintiff nos.1 to 3 thereby

substituting the name of present plaintiff nos.1 to 3 with that

of the respondent no.1 M/s. K.D. Estate Developers as more

partiuclarly set out in Exhibit G to the interim application.

Consequential amendments are also being sought. The

application was initially filed by email and is dated 9 th

September, 2020. The application is being opposed by

defendant no.1, defendant nos.2 to 23 and defendant nos.24 to

33.

2. On 25th November, 2020 the matter was heard via Video

Conferencing. The plaintiffs and the contesting defendants

submitted that they would file written submissions. On 14 th

December, 2020, the learned counsel sought and were

granted extension of time to file submissions and stated that

they do not wish to make any oral submissions. The

respondents who are proposed to be impleaded were also

directed to be served with the application. The registry does

not appear to have received any submissions from respondent

no.1.

3. On behalf of the applicants, it is submitted by Mr. Ankhad that

Ial-3211-20 wadhwa defendant nos.2 and 3 having expired, it has become necessary

to bring the heirs on record. It is their case that the plaintiffs

had obtained interim orders dated 21st November, 2012 and 4th

April, 2014 and those orders are in force. Defendant nos.2

and 3 passed away on 9th October, 1988 and 13th August, 1991

respectively but this was not known to the plaintiff when the

suit was filed. The names of the legal heirs were furnished by

Advocate for defendant no.1 some time in December 2012. In

March 2014, Chamber Summons bearing (L) no.435 of 2014

was then taken out which came to be rejected under Rule 986

of the Original Side Rules by a self-operative order dated 8 th

July, 2014. The plaintiffs did not apply for setting aside the

order. The suit later came to be dismissed for want of

prosecution on 9th September, 2019. An interim application

was taken out on 9th January, 2020 seeking restoration and on

9th March, 2020 the suit was restored.

4. Since the suit was restored, the plaintiffs are seeking to implead

the legal heirs. An interim application was filed on 31 st July,

2020 online bearing no.LD/VC/IA/1/2020 seeking restoration

of the Chamber Summons (L)no.435 of 2014. Apparently

there were errors in the interim application and at the

Ial-3211-20 wadhwa plaintiffs request the Court permitted withdrawal of that

interim application on 31st August, 2020 with liberty to file a

fresh application.

5. The plaintiffs apparently sought further information from the

defendants Advocates as to whether there was any change in

the particulars of legal heirs of defendant nos.2 and 3

furnished by them earlier. The Advocates for defendant no.1

who were unable to contact their clients, stated that particulars

known to them had already been furnished in 2014. In these

circumstances, the present interim application seeks to bring

on record the respondent nos.2 to 23 as defendant nos.2(a) to

2(v) being the legal heirs of original defendant no.2 and to

join respondent nos.24 to 33 as defendant nos.3(a) to 3(j)

being legal heirs of late defendant no.3.

6. It is further contended that during the pendency of the suit, the

plaintiffs 1 to 3 had sold the suit property to defendant no.1

vide a Deed of Conveyance dated 21st July, 2013 which is said

to be registered. The plaintiffs contended they could not make

this application earlier due to the pandemic but have now filed

this present application to complete the necessary pre-trial

Ial-3211-20 wadhwa formalities. Undoubtedly, there is considerable delay which the

plaintiffs recognize, however, they submit that gross and

irreparable loss, harm and injury will be caused to the

plaintiffs if the reliefs in this application are not granted.

7. The defendant no.1 has filed an affidavit dated 14 th September,

2020 opposing the application. Respondent nos.2, 5, 6, 8, 9,

12 to 18 and 21 have relied upon an affidavit filed by

defendant no.6 on their behalf. Respondent no.29 has also

filed an affidavit and seeks to oppose the interim application.

According to defendant no.1, the plaintiffs have intentionally

suppressed the correct facts. When the suit was filed, the

plaintiffs had already agreed to sell the property to respondent

no.1. The respondent no.1 would have therefore to file an

independent suit and cannot be substituted as plaintiff no.4.

The Deed of Conveyance in favour of respondent no.1 dated

21st July, 2013 reveals that the agreement to sale had been

arrived at in September 2012, monies had also changed hands.

The defendant has pressed into service the delay in

approaching this Court for the reliefs in this Interim

Application and has contended that the plaintiffs are not

diligent in prosecuting the suit. The affidavit however admits

Ial-3211-20 wadhwa of without prejudice negotiations between the defendant no.1

and deponent and admits the fact that respondent no.1 appears

to have acquired rights under the Deed of Conveyance dated

21st July, 2013 but the respondent no.1 would have to file a

fresh suit to agitate its rights if any. Respondent no.6 in his

affidavit has contended that the application is collusive as

between the plaintiff and the respondent no.1. He has opposed

the application. Respondent no.9 has also sought to oppose the

application on grounds similar to that of respondent no.6. It is

in this background that I have considered the submissions filed

by parties.

8. On behalf of the plaintiffs, it is submitted that the application is

liable to be allowed under Rule 10(1) read with Order 22 Rule

10 since there has been a or devolution of interest and transfer

of title in the property from plaintiff nos.1 to 3 to proposed

plaintiff no.4. It is contended that at the interim stage and in

the written submissions, defendant no.1 dated 28 th March,

2020 has stated that they are concerned with the property

bearing survey no.120 Hissa no.2B and not the suit property

which bears Hissa no.1 and Hissa no.2A. This is recorded in

the ad-interim order dated 21st November, 2012 and interim

Ial-3211-20 wadhwa order dated 4th April, 2014. It is contended that the title of the

suit property has devolved on respondent no.1 upon execution

of Conveyance dated 21st July 2013 and during the pendency

of the suit. Respondent no.1 is vitally interested in the

litigation and any orders passed would affect the respondent

no.1. The applicants have therefore invoked the courts

jurisdiction to permit the amendment. Reliance is placed by

the applicants on the following judgments;

1) Amit Kumar Shaw v/s. Farida Khatoon (2005) 11 SCC 403;

2) Shardamma v/s. Mohammed Pyrejan (Dead) through LRs

and another (2016) 1 SCC 730;

3) Dhurandhar Prasad Singh v/s. Jai Prakash University

(2001) 6 SCC 534;

9. On behalf of defendant no.1, it is contended that the interim

application seeks deletion of three original plaintiffs' and

substitution of respondent no.1 as the sole plaintiff. The

averments in the application are to the effect that the plaintiffs

interest has devolved upon respondent no.1 during the

pendency of the suit and that the suit be continued by the

respondent no.1.

Ial-3211-20 wadhwa

10. According to the defendant, no application for joinder as a

party has been filed by defendant no.1 and therefore this

application ought not to be permitted. Order 22 Rule 10

provides that the suit may be continued by order against the

person to or upon whom such interest has come or devolved.

Reliance is placed on the observations of the Supreme Court in

Shardamma (supra) which records that it is at the option of the

assignee to move an application for impleadment. Secondly, in

the case of Kripal Kaur v/s. Jitender Pal Singh and others

(2015) 9 SCC 356 the Supreme Court observed that leave can

be obtained by that person upon whom interest has devolved

during the pendency of the suit and that the initial duty lies

upon the person on whom such an interest has devolved upon

any such property must apply for leave. In the case at hand,

respondent no.1 had not filed any application therefore the

application is misconceived. It is contended that by transfer in

favour of respondent no.1 was made during the pendency of

the suit but without leave of the court and under Section 52 of

the Transfer of Property Act, the subject matter of suit cannot

be transferred except under the authority of the Court.

Ial-3211-20 wadhwa

11. The defendant had contended that the power of attorney of the

deponent granted to the deponent is only on behalf of the firm

not of the other plaintiffs. Secondly the power of attorney was

not in respect of the suit land. The defendant no.1 complained

of gross delay and latches on the part of the applicants and the

reasons given in the application for delay were far from

satisfactory.

12. On behalf of respondent no.2 to 23, the objection that the

power of attorney being restricted to plaintiff no.1 has been

repeated. Reliance is also placed on decisions of the Supreme

Court in Malabar Fisheries Co. v/s. Commissioner of Income

Tax, AIR 1980 SC 176, Comptroller and Auditor General v/s.

Kamlesh Vadilal Mehta 2003 (2) SCC 349, N. Khadervali

Saheb (Dead) by LRs. and another v/s. N. Gudu Sahib (Dead)

and others (2003) 3 SCC 229 in support of the plea that

partners ought to have signed the power of attorney.

13. It is then contended that under Order 22 Rule 4 of the CPC the

applicants/ plaintiffs are required to bring on record the heirs

of deceased within time failing which the suit abates. Time had

expired and the suit stood abated. It is contended that the

Ial-3211-20 wadhwa application was time barred since more than 60 days have

been gone by from the date of abatement. The first Chamber

Summons taken out in 2014 was rejected and this application

was filed only on 9th September, 2020 eight years after the

plaintiffs became aware that defendant nos.2 and 3 had

expired and six years after the Chamber Summons (L) no.435

of 2014 was rejected. Moreover, the relief of setting aside of

abatement has not been sought. Lastly, it is contended that

there are no reasons for not having filed the application

earlier. No case has been made out for condoning gross delay

and only relying upon the lockdown is of no consequence in

the facts of the case. That no prejudice would be caused to the

plaintiffs if the interim application is dismissed, on the other

hand, prejudice will be caused to the respondents if it is

allowed.

14. On behalf of defendant nos.24 to 28 and 30 to 33 also

submissions have been filed. The said defendants have

reiterated the objections on the ground of abatement of the suit

that the failure to apply for setting aside abatement within

time. The bar of limitation has pressed into service as in the

case of respondent nos.2 to 23. Lack of reasons for delay in

Ial-3211-20 wadhwa approaching the Court have also been canvassed. The failure

to make out sufficient cause has been emphasized. Reliance is

placed on the decision of the Supreme Court in Balwant Singh

(Dead) v/s. Jagdish Singh and others (2010) 8 SCC 685 .

15. Having considered all these submissions and the substance of

interim application, I am of the view that the application is

liable to be allowed reserving the right of the defendants and

the respondents agitate the bar of limitation. No doubt, the

lack of diligence on the part of the plaintiffs and the first

respondent is evident. However, what needs to be considered

is whether the respondent no.1 should be added as the plaintiff

and whether the suit should be allowed to continue. The

amendment sought is a pre-trial amendment. The application

seeks amendment in the cause title to implead legal heirs of

defendant nos.2 & 3 as additional defendants by inserting

paragraph 1(a) after paragraph 1 of the plaint and carrying

out consequential amendments, which I am informed includes

adding the Deed of Conveyance dated 21 st July, 2013 as an

Exhibit. The opposition to the amendment is on the ground of

delay and laches, the bar of limitation, the absence of any

application by the first respondent, collusion between the

Ial-3211-20 wadhwa plaintiff and respondent no1 and the bar under Section 52 of

the Transfer of Property Act.

16. Primarily it is contended that no case is made out for

exercising the jurisdiction vested in this Court under Order 1

Rule 10 and Order 22 Rule10. Order 1 Rule 10 sub-rule (2)

empowers the Court to strike out or add parties in order to

enable the Court effectively and completely adjudicate upon

and settle all the questions involved in the suit and Order 22

Rule 10 deals with the procedure in case of assignment or

creation or devolution of any interest during the pendency of

the suit and in such cases the suit may after obtaining leave of

the Court be continued by or against the person to or upon

whom such interest has come or has devolved.

17. It will also be appropriate to consider Section 52 of the

Transfer of Property Act which provides that during the

pendency of any suit or proceeding which is not collusive and

in which any right to immovable property is directly and

specifically in question, the property cannot be transferred or

otherwise dealt with by any party to the suit or proceeding so

as to affect the rights of any other party thereto under any

Ial-3211-20 wadhwa decree or Order which may be made therein, except under the

authority of the Court and on such terms as the Court may

impose. The aforesaid provisions are material for

consideration of the present application. A fair reading of

Section 52, the facts at hand, does not act as an absolute bar to

the execution of the Deed of Conveyance. It is urged by

defendant no.1 and the proposed respondent that an

agreement of sale had already been entered into between the

plaintiff and respondent no.1 prior to the filing of the suit. The

execution of the Deed of Conveyance dated 21 st July, 2013 in

the operative portion reveals that as of 25 th September, 2012

i.e. before the filing of the suit, a sum of Rs.1 crore had been

paid over towards the first installment of consideration. The

balance was payable in two installments first of which, being

Rs.4.50 crores was due on 30th November, 2012 and the 2nd

installment before 11th February, 2014 that is after filing the

suit. The Suit was filed on or about 21st November, 2012.

18. The cause of action is said to have arisen on 12 th November,

2012 when the defendants claimed to be owners of the suit

property. In my view, the intention to transfer was evident

Ial-3211-20 wadhwa from the Deed of Conveyance and as of September 2012 and

as early pointed out by the defendant/respondent, an

agreement of sale had already been arrived at between the

parties. In that view of the matter, I am of the opinion that

there will be no express bar under Section 52 of the Transfer of

Property Act that can be pressed into service. The only

question is whether any terms are to be imposed by the Court

while recognizing such transfer but that does not fall for

consideration at this stage but only at the final hearing of the

suit. It will be open for the defendants to raise this issue in

their written statements or in appropriate proceedings if so

advised.

19. I have considered the maintainability of the application under

the provisions of Order 22 Rule 10. Rule 10 contemplates

three different forms under which a party who claims a

interest in the property may continue the suit by him or for a

plaintiff to continue to suit against such party in whom interest

has come or devolved. The interest in such a recipient comes

into being either by assignment or some other mode of creation

of such interest or by devolution of interest during the

pendency of the suit. In the present case it appears that the

Ial-3211-20 wadhwa respondent no.1 is an assignee and therefore although the

applicants have chosen to use the expression of "devolution of

interest", the term devolution means an act of transferring

rights, duties and powers to another although in legal terms "to

devolve" would indicate passing of rights by transmission or

succession. Assignment appears to be the mode by which the

rights in the property have been transferred thereby creating,

prima facie, rights in favour of the first respondent. In the

light of the fact that none of the respondents are today in a

position to question the fact of assignment and in fact admit

that substantial amounts may have been paid over under the

Deed of Conveyance, the opposition is largely based on the fact

that the first respondent is not applicant herein but it is the

original plaintiff who seeks to bring to add the respondent no.1

as a party plaintiff. Rule 10 of Order 22 empowers the Court

to grant leave to enable party in whose favour interest has

been assigned, created or devolves to continue as a suit and in

the instant case such interest is said to have assigned, created

and devolved in favour of respondent no.1.

20. In my view, the fact that the application is presented by the

Ial-3211-20 wadhwa original plaintiffs cannot be seen to be an absolute bar in the

facts of the present case. On the aspect of impleadment of

legal heirs, the only question to be considered is on the aspect

of delay and the fact of abatement of the suit. Setting aside of

abatement would necessarily have to be considered while

condoning the delay. One important fact of the consideration is

avoidance of multiplicity of proceedings and in that light of the

matter I am inclined to condone the delay as well and permit

the amendment but on terms. Delay is evident from the fact

that the suit was presented in 2012 and the ad-interim order

came to be passed on 21st November, 2012. On 21st July, 2013

the Deed of Conveyance came to be executed in favour of

respondent no.1. This fact is not disputed. On 4 th April, 2014,

the defendants in a suit, Court conceded that they are not

concerned with the suit property. It is thereafter that the aspect

of delay has come to the fore and since the Chamber Summons

was taken out on or about 8 th July, 2014 time was granted till

5th August, 2014 to comply with office objections failing which

the Chamber Summons was to stand rejected. The pleading

indicate that without prejudice negotiations were underway

between respondent no.1 and defendant's family members

Ial-3211-20 wadhwa between February 2018 and February 2019. Meanwhile, the

suit came to be dismissed and was subsequently restored

pursuant to order dated 9th March, 2020. That order is at

Exhibit D to the application. This application has been filed

pursuant to liberty granted vide a separate order dated 31 st

August, 2020 Exhibit E to the application. Delay has no doubt

occasioned. The power to condone delay is wide enough to

justify grant of reliefs in this application. The decision in Amit

Kumar Shaw (supra) observed that an application under Order

22 Rule 10 can be made also to the Appellate Court even

though the devolution of interest occurred when the case was

pending in the trial court and no detailed enquiry is

contemplated at this stage. Prima facie, I am satisfied that

some interest has been created in favour of respondent no.1.

Dismissal of the suit cannot be the answer in the facts of the

present case and that has been considered in Shardamma

(supra) in paragraph 5. Shardamma in fact considered a

situation whether assignor was to continue proceedings

notwithstanding the fact that he had ceased to have any

interest in the subject matter of dispute. It considers a case

where the assignee fails to file an application to continue

Ial-3211-20 wadhwa proceedings and the suit is not liable to be dismissed. These

were cases which had arisen post-trial. The Supreme Court

observed that if the party does not ask for leave he takes the

obvious risk that the suit may not be conducted properly.

21. Dhurandar Prasad Singh (supra) holds that under Order 22

Rule 10 refers a devolution of interest and a suit may proceed

with leave of the Court but it is not obligatory that the person

claiming agreement or devolution must seek leave. If a party

does not ask for leave the interested party takes a chance and

the suit may not be conducted properly by the plaintiff on

record but would be bound by the result.

22. In the present case, leave to continue the suit is being sought

by this application and grant of leave is the only consequence

of allowing this application. In paragraph 26 of Dhurandhar

Prasad (supra), the Supreme Court observed that the plain

language of Rule 10 does not suggest that leave can be sought

only by the person on whom interest has devolved. Therefore

in the instant case, the original plaintiffs have taken such steps.

Dhurandhar Prasad (supra) lays down that even if no steps

taken by the assignee, a suit may be continued by the original

Ial-3211-20 wadhwa plaintiff but the assignee would be bound by the decree unless

the decree was based on fraud or collusion.

23. The defendant/respondents have sought to emphasize that

even after restoring the suit the application for restoration of

the Chamber Summons was once again filed and withdrawn.

This alone in my view could not prevent grant of relief in the

present application. Reliance placed by the respondents in the

observations in Shardamma (supra) that it is at the option of

the assignee to move an application for impleadment does not

make it mandatory for the respondent no.1 to make the

application. Although in Kripal Kaur (supra) the Court

observed that it is a rule of prudence the initial duty lies upon

a person on whom interest has devolved to apply for leave. In

the present case, the respondent no.1 has not done so. The

respondent no.1 has not opposed the application and obviously

would not be interested in opposing the opportunity to

continue the suit in view of the deed of conveyance in its

favour.

24. In my view, Kripal Kaur (supra) does not contemplate a

prohibition against the application being made by the original

Ial-3211-20 wadhwa party. In my view, there is no merit in the contention that the

suit cannot be continued. I am unable to agree with the

contention that the application by the plaintiffs is

misconceived. As far as the issue pertaining to the power of

attorney is concerned, the firm is duly represented and these

are not aspects that will fall for consideration at this interim

stage.

25. In Bibi Zubaida Khatoon v/s. Nabi Hassan Saheb and another

(2004) 1 SCC 191, the Supreme Court had found that at the

trial stage, the alienation did not appear bonafide and the

attempt was to transfer so as to complicate and delay the

pending suits. The decisions of the Supreme Court cited by the

defendants to oppose the application were all post trial. The

present case is one of a pre-trial amendment which in my view

must be allowed. The objection on the ground that all partners

had not filed the application is not something that will be come

in the way of amendment being permitted and to that extent,

the decisions in the case of M/s. Malabar Fisheries Co. v/s. The

Commissioner of IncomeTax, Kerala, AIR 1980 SC 176 (supra)

and Controller and Auditor General (supra) will not come to

the assistance of the respondents. Furthermore, the interim

Ial-3211-20 wadhwa orders record that the defendants were not concerned with the

plaintiffs claim to the suit property and the plaintiffs continue

to rely upon that admission. Whether the power of attorney

was to be granted in respect of the land in question or not, is

not material at this stage.

26. On the aspect of sufficient cause, the decision of Balwant Singh

(supra) does emphasize the fact of taking a very liberal

approach should not render provisions of Order 22 Rule 9 (2)

and (3) redundant. In my view considering the delay in the

instant case, an order of costs would clearly be justified. In the

facts of the present case the assignment is not under challenge.

The defendants have at the interim stage contended that they

have no concern with the suit property.

27. Lastly I may observe that in Perumon Bhagvathy Devaswom

v/s. Bhargavi Amma (Dead) Through LRs (2008) 8 SCC 321

the Supreme Court had laid down certain principles to be kept

in mind while considering the applications under Order 22.

One of these is that while considering reasons of delay, courts

are more liberal with reference to application for setting aside

Ial-3211-20 wadhwa abatement than other cases and will not punish appellant with

foreclosure of the appeal for unintended lapses. The Courts

tend to set aside abatement and decide the matter on merits,

rather than terminate the appeal on the ground of abatement.

In the light of the aforesaid I am condoning the delay setting

aside the abatement and allowing the application. However,

applicant shall be put to terms.

28. In view of the aforesaid I pass the following order;

(i) Interim application is allowed in terms of prayer clauses

(a) to (d) subject to payment of costs of Rs.5000/- each of the

defendant no.1 and all the respondents. Plaintiffs are also

permitted to annex Exhibits H & I collectively to the plaint.