Bombay High Court
Cozihom Co-Operative Housing ... vs Tajdar Amrohi S/O Kamal Amrohi And ... on 19 May, 2021
Bench: C.V. Bhadang
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST) NO. 1929 OF 2021
Cozihom Co-operative Housing Society Ltd.
A Cooperative Housing Society registered
under the relevant provisions of Maharashtra
Co-operative Societies Act, 1960, situated
at 251, Pali Hill, Bandra, Mumbai - 400 050. .. Petitioner
V/s.
1. Shri. Tajdar Amrohi s/o Kamal Amrohi
Age 74 years, Occ. Business, an Indian
Inhabitant of Mumbai, R/at. : Rambrant,
Pali Hill, Bandra, Mumbai - 400 050.
2. Mrs. Rukhsare Zehra Noori
Age : adult, Indian Inhabitant of Bombay,
R/at. Flat No.7, Sagar Sameer, Machhimar,
Versova Road, Mumbai - 400 063.
3. Arham Land Developers Pvt. Ltd.
(Formerly known as Dinku Property Private
Limited), a Registered Company incorporated
under the Companies Act, 1956, having its
registered office at 7, Shantinath Shopping
Centre, 1st Floor, S. V. Road, Malad (West),
Mumbai - 400 064. ..Respondents
WITH
WRIT PETITION (ST) NO. 1930 OF 2021
Cozihom Co-operative Housing Society Ltd.
A Cooperative Housing Society registered
under the relevant provisions of Maharashtra
Co-operative Societies Act, 1960, situated
at 251, Pali Hill, Bandra, Mumbai - 400 050. .. Petitioner
V/s.
1. Shri. Tajdar Amrohi s/o Kamal Amrohi
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Age 74 years, Occ. Business, an Indian
Inhabitant of Mumbai, R/at. : Rambrant,
Pali Hill, Bandra, Mumbai - 400 050.
2. Arham Land Developers Pvt. Ltd.
(Formerly known as Dinku Property Private
Limited), a Registered Company incorporated
under the Companies Act, 1956, having its
registered office at 7, Shantinath Shopping
Centre, 1st Floor, S. V. Road, Malad (West),
Mumbai - 400 064. ..Respondents
----
WITH
WRIT PETITION (ST) NO. 4009 OF 2021
WITH
WRIT PETITION (ST) NO. 4011 OF 2021
Shri. Tajdar Amrohi S/o. Kamal Amrohi
Age 74 years, Occ. Business, an Indian
Inhabitant of Mumbai, R/at. : Rambrant,
Pali Hill, Bandra, Mumbai - 400 050. .. Petitioner
V/s.
1. Cozihom Co-operative Housing Society
Ltd. a Cooperative Society registered under
the Maharashtra Co-operative Societies Act,
25 Pali Hill, Bandra, Mumbai - 400 050.
2. Arham Land Developers Pvt. Ltd.
Formerly known as Dinku Property Private
Limited, a Registered Company incorporated
under the Companies Act, 1956, having its
registered office at Shantinath Shopping
Centre, 1st Floor, S. V. Road, Malad (West),
Mumbai - 400 064. ..Respondents
----
Mr. Kevic Setalwad, Senior Advocate with Mr. Farid Karachiwala a/w
Mr. Sandeep Bhimekar and with Ms. Azraa Millwalla i/b J.Sagar &
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Associates for the Petitioner in WP(ST) No.1929/2021 & WP(ST)
No.1930/2021 and Respondent No.1 in WP (ST) No.4009/2021 and
WP (ST) No.4011/2021.
Mr. P.K. Dhakephalkar, Senior Advocate a/w. Mr. Shailendra Singh,
Mr. Vikas Kumbhar and Ms. Samruddhi Warang i/b M/s. P.V. Nichani
& Co. for the Petitioner in WP (ST) No.4009/2021 & WP (ST)
No.4011/2021 and Respondent No.1 in WP(ST) No.1929/2021 &
WP(ST) No.1930/2021.
Mr. Sharan Jagtiani, Senior Advocate a/w Mayur Khandeparkar with
Bhavin Gada and Ms. Najafiya i/b Harukhchand & co. for the Arham
Land Developers / Respondent No. 2 in WP (ST) No.1930/2021, WP
(ST) No.4009/2021 and WP (ST) No.4011/2021 and Respondent
No.3 in WP (ST) No.1929/2021.
----
CORAM : C.V. BHADANG, J.
RESERVED ON : 03rd FEBRUARY, 2021
PRONOUNCED ON : 19th MAY 2021
(Through Video Conferencing)
JUDGMENT.
. All these petitions are between the same parties and
essentially challenge the impleadment of Arham Land Developers
Private Ltd (formerly known as Dinku Property Private Ltd) 'Arham
Developers' for short as a party in the appeals before the Appellate
Bench of the Small Causes Court. The petitions involve common
questions of law and facts. The petitions are heard finally and they
are being disposed of by this common judgment.
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WP St No. 1929/2021 and WP St. No.1930/2021
2. The petitioner Cozihom Cooperative Housing Society
Ltd ('Society' for short) is having five buildings A to E at Palli Hill
Bandra Mumbai. The buildings A to C are situated on Land leased
out to the petitioner society by the predecessor in title of the first
respondent Tajdar Amrohi. RAE & R Suit no 184/525 of 1991 was
filed by Kamal Amrohi, father of the first respondent for eviction
against the petitioner, on the ground of arrears of rent under section
12(2) of the Bombay Rent,Hotel & Lodging Houses Rates Control
Act 1947 ( Act for short) which suit has been decreed by the learned
Small Causes Court on 16/17 October 2007. The petitioner has
challenged the said judgment and decree in Appeal No.41/2008
which is pending before the Appellate Bench of the Small Causes
Court at Mumbai. The execution of the eviction decree has been
stayed on conditions.
3. The first respondent has filed another suit being TE &R
suit no 14/24/2004 against the petitioner which has been dismissed
on 16 April 2008. That is subject matter of challenge at the instance
of the first respondent in Appeal No.193/2008 pending before the
Appellate Bench, of the Small Causes Court at Mumbai.
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4. During the pendency of the appeals the first respondent
has executed a deed of conveyance dated 19 May 2010 in favour of
the third respondent Arham developers. According to the petitioner
by the said deed the first respondent has not transferred the rights
as landlord nor the benefit of the decrees which are subject matter
of challenge in the two appeals. The tenancy rights have also not
been attorned in favour of Arham Developers.
5. Be that as it may, on the basis if the said deed Arham
Developers filed an application ( Ex 40) for impleadment in appeal
no 41/2008 on 23 July 2012.
6. The first respondent claims to have "terminated" the
deed of conveyance vide notice dated 15 April 2019. The first
respondent has filed Suit (Lodging) No.1145/2019 challenging the
said deed. Arham Developers has also filed Suit (Lodging) No
9811/2020 against the first respondent and the petitioner for a
declaration that the deed of conveyance is valid and subsisting and
binding between the parties. Both these suits are pending before the
original side of this Court. By an order dated 4 January 2021 in IA
(L) no 9993/2020 injunction is granted in favour of 'Arham
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Developers' restraining the first respondent from creating third
party rights in the suit property.
7. On 14 January 2021 the petitioner and the first and the
second respondents filed an application/ pursis in Appeal no
41/2008 for disposal of the appeal as the dispute is settled between
the parties. According to the petitioner it was not necessary for the
Appellate Bench to have called say of Arham Developers on the said
application, in as much as 'Arham Developers' was not yet impleaded
as a party respondent.
8. The Appellate Bench however allowed application
Exh.40 on 14 January 2021 for impleadment and granted time to
'Arham Developers' to file say to the application for disposal of the
appeal in view of the settlement between petitioner and the first and
the second respondent. It is this order which is subject matter of
challenge in WP St No.1929/2021.
9. A similar order passed in Appeal No.193/2008 is
challenged in WP St No.1930/2021, by the petitioner society.
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WP St. No.4009/2021 and WP No. 4011/2021
10. In Writ Petition No.4009/2011 petitioner Tajdar Amrohi
(the appellant in Appeal No.193/2008) is challenging the order
dated 14 January 2021 and is seeking permission to withdraw the
appeal on the basis of the application/pursis filed before the
Appellate Bench.
11. In WP St No.4011/2021 petitioner Tajdar Amrohi is
challenging the order dated 14 January 2021 passed in Appeal No.
41/2008. The petitioner is seeking an order for allowing the appeal
on the basis of the settlement and setting aside of the Judgment and
decree dated 16/17 October 2007 passed in RAE & R Suit
No.184/525 of 1991.
12. Before proceeding further it is necessary to state few
more facts. Shandar Amraohi brother of Tajdar Amrohi died on 21
August 2011. The Trial Court by an order dated 27 November 2013
and the order passed by this Court on 18 February 2014 directed
deletion of Shandar Amrohi from the array of parties. The Society,
challenged the said order before the Supreme Court in Special Leave
Petition(C) No.7386-87 of 2014 which is pending. 'Arham
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Developers', sought impleadment before the Supreme Court in the
aforesaid SLP which has been allowed on 11 September 2019 with
liberty to the parties to raise their objections available under the law.
It may be mentioned that Tajdar Amrohi filed an application being
IA No.159743/2019 before the Supreme Court for deletion of
Arham Developers from the SLP which is rejected on 10 February
2020. According to the petitioners, 'Arham Developers' cannot take
shelter of the said order passed by the Supreme Court in seeking
impleadment in the appeals pending before the Appellate bench and
supporting the impugned orders.
13. I have heard the learned counsel for the parties.
Perused record.
14. Mr. Setalwad, the learned Senior counsel for the
petitioner society submitted that the application (Exh.40) was filed
by 'Arham Developers' under Order XXII Rule 10 of CPC. He points
out that Order XXII deals with death, marriage and insolvency of the
party. He submitted that thus the application as framed and filed
was not maintainable under Order XXII, in as much as there is
neither death, marriage or insolvency, pursuant to which such
application could have been filed. He submitted that Rule 10 of
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Order XXII of CPC would apply only during the pendency of the suit.
Thus, the application being filed in the appeal after the suit was
already disposed of was not maintainable. He pointed out that sub-
Rule 1 of Rule 10 of Order XXII deals with substitution and not
addition of party. Thus, the application filed for addition /
impleadment is not maintainable. He pointed out that sub-Rule 2 of
Rule 10 of Order XXII is inapplicable as it deals with attachment of a
decree.
15. It is next submitted that the impugned order is passed
in violation of Section 52 of the Transfer of Property Act, 1882 ('TP
Act' for short). He submitted that the deed of conveyance has been
executed without obtaining any leave, during the pendency of the
appeal. It is submitted that 'Arham Developers' is claiming
impleadment on the basis of the rights based on the purported deed
of conveyance dated 19 May 2010 which is disputed. He submitted
that the said deed of conveyance has been terminated vide notice
dated 15 April 2019 and Suit No.01/2021 (Lodging No.1145/2019)
seeking cancellation of the purported deed of conveyance is
pending. He pointed out that the suit filed by 'Arham Developers'
for declaration that the deed of conveyance is valid and subsisting
and binding on first respondent Tajdar Amrohi is also pending. In
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short, it is submitted that the issue about the transfer / acquisition
of title by 'Arham Developers' on the basis of the deed of conveyance
being pending before the Original Side of this Court, it was not open
for the Small Causes Court to have allowed the impleadment, more
so, when the Small Causes Court cannot go into the question of title.
16. It is submitted that the society and the first respondent
had sought disposal of the appeal in view of the settlement reached
and a prayer was also made for referral of the dispute to mediation.
It is submitted that the Appellate Bench was in error in refusing to
act on the application / pursis filed on the basis of the settlement
which would have put an end to a long standing dispute mostly
involving Senior citizens. It is pointed out that 'Arham Developers'
cannot place reliance on the order passed by the Hon'ble Supreme
Court in as much as the Supreme Court has granted liberty to the
parties to raise their objection available under the law by order
dated 11 September 2019. On behalf of the petitioner reliance is
placed on the decisions in (i) Ranbir Singh Vs. Asharfi Lal1
1(1995) 6 SCC 580
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(ii) Foolchand Vs. Shabbir2 (iii) Kanaklata Das Vs. Naba Kumar 3
(iv) Patna Noorul Hoda Vs. B. N. Prasad 4 (v) Ramchandra
Bhikachand Nahar Vs. Narhar Maruti Udavant & Ors. 5 (vi) Anil
Dinmani Shankar Joshi and Anr. Vs. Chief Officer, Panvel Municipal
Council, Panvel and Anr.6
17. Mr. Dhakephalkar, the learned Senior Counsel
appearing for the petitioner Tajdar Amrohi has also challenged the
impugned order on similar grounds. In so far as the withdrawal of
Appeal No.193/2008, it is submitted that the petitioner as an
appellant has every right to withdraw the appeal and once the
appeal stood withdrawn, the Appellate Bench could not have
directed impleadment of Arham Developers in the appeal. The
learned Senior Counsel took strong exception to the Appellate Bench
permitting Arham Developers to be impleaded as co-appellant
without the permission of the petitioner. It is pointed out that no
party can be directed to be added / impleaded as a plaintiff /
appellant without consent of the plaintiff or the appellant as the
case may be. The learned Senior Counsel was at pains to point out
21998(1) Mh.L.J. 429
3(2018) 2 SCC 352
4MANU/BH/1884/2017
5AIR 1996 Bom 338
62003 SCC Online 24
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that the impugned order in so far as impleadment in Appeal
No.193/2008, would lead to a situation where the petitioner as an
appellant is desirous of withdrawing the appeal while 'Arham
Developers' as co-appellant is desirous of prosecuting the appeal. It
is submitted that such a situation cannot be conceived and the
Appellate Bench was oblivious of such a incongruous situation
resulting from the impugned order.
18. In so far as the Appeal No.41/2008 is concerned, it is
submitted that the society and the petitioner having settled their
interse dispute had sought disposal of the appeal by setting aside
decree dated 16/17 October 2007 and the same ought to have been
allowed. It is pointed out that Rule 10 of Order XXII, speaks about
continuation of suit / proceeding in the eventuality of assignment or
devolution or any interest in the suit and does not mandate addition
/ impleadment of the party on account of such assignment /
devolution. It is pointed out that 'Arham Developers' is neither a
necessary nor a proper party to the appeal or the suit.
19. The learned Senior Counsel has extensively taken me
through the impugned order passed in order to submit that the
Appellate Bench has exceeded its jurisdiction by dwelling on the
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nature and the effect of the deed of conveyance and the notice of
cancellation when the Appellate Bench was not entitled to go into
the question of title more so when the validity and the binding
nature of deed of conveyance is subject matter of dispute before this
Court. It is pointed out that the Appellate Bench was in error in
coming to the conclusion that the parties had intended that 'Arham
Developers' would be a beneficiary of the decree dated 16/17
October 2007 particularly when the eviction was granted by the said
decree on the basis of the arrears of rent for the period prior to the
alleged purchase of the suit property by 'Arham Developers'. In
short, it is submitted that by virtue of the alleged deed of
conveyance Arham Developers was not vested with any right, title or
interest to prosecute the suit or the appeal or to claim the benefit of
the decree of eviction. It is submitted that the Appellate Bench by
virtue of "convoluted reasoning" has arrived at a wrong conclusion
permitting impleadment.
20. Mr. Sharan Jagtiani, the learned Senior Counsel and
Mr. Mayur Khandeparkar, the learned Counsel for the 'Arham
Developers' has supported the impugned order. It is submitted that
there is a registered deed of conveyance executed in favour of the
'Arham Developers' which still subsists. It is pointed out that the
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party to a registered deed of conveyance cannot conceivably
"terminate" the same as has been purported to be done by a notice
dated 15 April 2019. It is submitted that in any event, the suit filed
by the society seeking cancellation of the said deed of conveyance is
still pending and in the absence of any order being passed in respect
of the said deed of conveyance, 'Arham Developers' was entitled to
seek impleadment. It is submitted that such impleadment has also
been allowed by the Supreme Court in the SLP filed by the society.
It is submitted that the impleadment has rightly been allowed on the
basis of the deed of conveyance.
21. In so far as the ground based on the Arham Developers
being allowed to be joined as co-appellant in Appeal No.193/2008 is
concerned, it is pointed out that there is also an application for
deletion/transposition of the appellant Tajdar Amrohi which is
pending before the Appellate Bench. It is submitted that the
impugned order does not suffer from any infirmity much less results
into any manifest injustice on the parties and no case for
interference is made out under Article 227 of the Constitution of
India.
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22. I have carefully considered the rival circumstances and
the submissions made.
23. At the outset, it is necessary to note that although
certain allegation have been made as to the manner in which the
appeals have been conducted and the parties were allegedly not
allowed to go for mediation, I do not propose to go into these
allegations more so, for the reason that an application for transfer
was filed and was said to be pending at the relevant time. The
learned counsel for the Petitioners submitted that the concerned
Presiding Officer has since retired and therefore, nothing survives in
the transfer application. As indicated earlier, it is not necessary to
go into these allegations.
24. It further appears that initially the dispute was between
the landlord Tajdar Amrohi and tenant Cozihom society. The deed
of conveyance is dated 19 May 2010 and the impleadment was
sought on 23 July 2012 and the application was pending.
WP St. No.1929/2021 & WP St. No.4011/2021
25. The challenge in both these petitions is to the order
dated 14 January 2021 passed by the Appellate Bench of the Small
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Causes Court in Appeal No.41/2008. By the impugned order, the
Application (Exh.40) filed by the 'Arham Developers' seeking
impleadment as respondent No.1 (D) has been allowed. The facts
which are undisputed and/or which are matters of record are that
the predecessor-in-title of petitioner Tajdar Amrohi had leased out
the land to the Cozihom Co-Operative Society and the suit filed for
eviction against the society has been decreed on 16/17 October
2007 on the ground of arrears of rent which judgment and decree is
subject matter of challenge in the appeal. It is a matter of record
that during the pendency of the appeal, a Power of Attorney, re-
development agreement and a registered deed of conveyance has
been executed in favour of the 'Arham Developers' and on the
strength of the same, the impleadment is sought. It is also a matter
of record that there are two suits filed and pending before the
Original Side of this Court. In one of the suit, there is a challenge to
the deed of conveyance on the ground that the same has been
cancelled by virtue of a notice dated 15 April 2019. The second suit
is by Arham Developers seeking declaration that the deed of
conveyance is subsisting and binding between the parties. It is
further a matter of record that this Court by an order dated 4
January 2021 in Interim Application (L) No.9993/2021 in Suit (L)
No.9811/2020 has granted interim relief in favour of Arham
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Developers by which Tajdar Amrohi (Defendant No.1) or anybody
on his behalf has been restrained from disposing of and/or creating
any third party rights / interest in the suit property. A perusal of
para 6 of the said order would indicate that this Court had prima
facie found that the property "has admittedly passed". It would be
worthwhile to reproduce para 6 of the said order as under.
6. Having heard parties, I am of the view that
ad-interim relief would have to be granted since the
property has admittedly passed. Pendency, if any, of
a suit being Suit (Lodging) No.1145 of 2019 filed
by the first defendant for cancellation of the deed of
conveyance will be of no consequence at this ad-
interim stage. In the meantime, Mr. Purohit
submits that in the suit filed by defendant No.1 all
office objections have been complied.
26. It is true that application (Exh.40) was filed under
Order XXII Rule 10 of CPC. Although, Order XXII pertains to death,
marriage and insolvency of the parties, Rule 10 provides for
procedure in case of assignment before final order in suit. Sub-Rule
1 of Rule 10 of Order XXII which is relevant for the purpose reads
thus-
10(1) - In other cases of an assignment, creation or
devolution of any interest during the pendency of a
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suit, the suit may, by leave of the Court, be continued
by or against the person to or upon whom such
interest has come or devolved.
It can thus be seen that it provides for assignment,
creation or devolution of any interest during the pendency of
the suit.
27. The Supreme Court in the case of Amit Kumar Shaw
and Another Vs. Farida Khatoon and Anr.7 has interalia held that
under Order XXII Rule 10, no detailed inquiry at the stage of
granting leave is contemplated. The Court has only to be prima
facie satisfied for exercising its discretion in granting leave "for
continuing the suit by or against the person on whom the interest
has devolved by assignment or devolution". It has further been held
that the power of Court to add the party to a proceeding cannot
depend solely on the question whether he had interest in the suit
property. Para 10 and 12 of the judgment are apposite and may be
reproduced thus-
10. The power of a Court to add a party to a
proceeding cannot depend solely on the question
whether he has interest in the suit property. The
question is whether the right of a person may be
affected if he is not added as a party. Such right,
7(2005) 11 SC 403
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however, will necessarily include an enforceable legal
right.
12. Under Order XXII Rule 10, no detailed
inquiry at the stage of granting leave is contemplated.
The Court has only to be prima facie satisfied for
exercising its discretion in granting leave for
continuing the suit by or against the person on whom
the interest has devolved by assignment or devolution.
The question about the existence and validity of the
assignment or devolution can be considered at the
final hearing of the proceedings. The Court has only
to be prima facie satisfied for exercising its discretion
in granting leave for continuing the suit.
28. It has further been held that the application under
Order XXII Rule 10 can be made to the Appellate Court, even though
the devolution of the interest occurred when the case was pending
during the trial.
29. In the present case, the transfer although challenged by
the vendor has happened during the pendency of the appeal.
However, what is relevant is that the Supreme Court has held that
an application under Order XXII Rule 10 can even be made to the
Appellate Court. Even otherwise an appeal is a continuation of the
suit and therefore the contention that Order XXII Rule 10 was
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inapplicable for the reason that it applies to a suit, to my mind,
cannot be accepted.
30. In Amit Kumar Shaw it has further been held that the
transferee, on whom such interest devolves can be joined both
under Order XXII Rule 10 or Order I Rule 10 of CPC, given that such
transferee is bound by the final decree under Section 52 of the TP
Act.
31. It can thus be seen that the principles which can be
deduced are that the transferee can apply and can be joined both
under Order XXII Rule 10 or Order I Rule 10 of CPC, albeit, if
otherwise, a case for addition / impleadment is made out. At the
stage of said addition / impleadment, a detailed inquiry is neither
contemplated nor necessary and prima facie satisfaction of the Court
will be sufficient and the power of the Court to add a party to a
proceeding cannot depend solely on the question whether he has
interest in the suit property. The question is whether the right of a
person may be affected if he is not added as a party. Such right,
however, will necessarily include an enforceable legal right.
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32. It is further well settled that the label under which a
particular application is filed or relief is sought is not decisive and
the Court can always grant relief provided the power to grant relief
otherwise exists albeit on satisfaction of the necessary conditions.
33. Coming to the present case, prima facie, there is a
registered deed of conveyance which is now disputed by the vendors
in respect of which the suit filed by the vendors and the counter suit
filed by the vendee are pending. Prima facie, at this stage, there is
no order about cancellation and/or invalidity of the said deed of
conveyance.
34. It is true that the Small Causes Court and for the matter
of that the Appellate Bench entertaining an appeal arising out of a
suit before the Small Causes Court, cannot go into the question of
title. The suit before the Small Causes Court essentially proceeds on
the basis of existence of landlord-tenant relationship. The learned
Senior counsel for the petitioners have strenuously urged that
notwithstanding the settled position, the Appellate Bench has indeed
dwelt on the aspect of title based on the deed of conveyance. In
order to support the said contention, certain paragraphs from the
impugned order were read out.
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35. In my considered view, it would not be necessary to go
into the said contention, for the reason that the learned Single
Judge of this Court entertaining Suit (L) No.9811/2020 filed by
'Arham Developers' has prima facie found that the property has
'admittedly passed' in paragraph 6 which has been reproduced
above. In my considered view, the Small Causes Court would be
bound by the said prima facie finding particularly when at the stage
of impleadment, no detailed inquiry is contemplated.
36. Prima facie, in my opinion, there is a registered deed of
conveyance in favour of 'Arham Developers' and although it is
sought to be "cancelled" by virtue of a notice dated 15 April 2019,
there is no order of cancellation or even a prima facie finding that
the document is invalid or inoperative at this stage. Quite to the
contrary, there is a prima facie finding that the 'property has passed'
in favour of the 'Arham Developers' on the basis of which interim
relief is granted to 'Arham Developers'.
37. The question is essentially whether prima facie the
vendors have any subsisting interest in the face of the deed of
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conveyance and/or whether the vendor 'Arham Developers' have
acquired an interest thereby entering in the shoes of the landlord.
38. It is further necessary to note that the Hon'ble Supreme
Court by an order dated 11 September 2019 has allowed the
application for impleadment filed by 'Arham Developers' and
permitted it to participate in the proceedings.
39. Coming to the ground based on Section 52 of the TP
Act, it is evident that Section 52 of the TP Act does not contain any
prohibition for transfer of property pendente lite. All that Section
52 provides is that in 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 decree or
order which may be made therein, except under the authority of the
Court and on such terms as it may impose. It can thus be seen that
the transfer pendente lite governed by Section 52 of the TP Act is
subject to the decree or order passed in the suit or proceeding and
such transfer cannot affect the rights of any other party to the suit.
There is a clear distinction between a transfer pendente lite
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governed by Section 52 of the TP Act and a transfer which is in
breach of any prohibitory order passed by the Court. These two
transfers clearly differ in so far as their effect is concerned. In the
prior case, governed by Section 52, the transfer is only subject to the
outcome or the order or the decree passed in the suit or proceeding
as the case may be.
40. It is necessary to note that prima facie at this stage, the
petitioner society as well as petitioner Tajdar Amrohi have filed a
pursis claiming that there is a settlement amongst them and
therefore, in order to examine the interest of the Arham Developers,
the Appellate Bench was within its bounds to allow the
impleadment.
41. A brief reference may be made at this stage to the
decisions cited on behalf of the petitioner.
42. In Ranbir Singh , the Supreme Court has held that the
question of title of the property is not germane, "however, may be
examined incidentally", in a eviction suit between the landlord and
the tenant. However, the question of title cannot be decided finally
in the eviction suit.
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43. In the case of Foolchand , the non-applicant No.1 had
sought eviction against the non-applicant No.2 claiming that he was
a tenant and had defaulted in the matter of payment of rent. The
applicant before this Court had sought impleadment on the ground
that he was an owner of the suit property. This Court noted that
there was a dispute between the applicant and the non-applicants
regarding the ownership of the said premises. What is significant is
that there was a decree passed in favour of the non-applicant No.1
by the Trial Court on adjudication although, this Court had directed
maintenance of the status-quo. It was in these circumstances found
that the order refusing impleadment did not require any
interference. In the present case, there is no such decree passed in
favour of the vendors and quite to the contrary, there is a prima
facie finding that the property has passed.
44. In the case of Kanaklata Das, in an eviction suit, an
application was filed under Order I Rule 10(2) of the CPC for
impleadment as co-plaintiff on the ground that he was a member of
the plaintiff's family and being so, has a right, title and interest in
the suit premises. The Supreme Court interalia having noted that if
there are co-owners or co-landlords, then one co-owner or co-
landlord can file a suit for eviction, refused to allow the
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intervention, as the respondent No.1 was found to be neither
necessary nor proper party to the suit.
45. In the case of Anurag Mittal , the question was about
validity of marriage contracted during pendency of an appeal
against a decree for dissolution of earlier marriage. The question
was whether the date of dismissal of appeal, against dissolution of
marriage relates back to the filing of the application for withdrawal
of appeal. It can thus be seen that the case is clearly distinguishable
on facts. What is relied upon by the learned counsel for the
petitioner is that Order XXIII Rule 1(1) of CPC gives absolute right
to the plaintiff to withdraw his suit or abandon any part of his claim.
Taking note of the said provision, the Supreme Court held that if
such an application is made, the Court has to grant it.
46. Coming to the present case, in so far as Appeal
No.41/2008 is concerned which was filed by the society against the
judgment and decree dated 16/17 October 2007, the society was
not seeking withdrawal of the appeal but was in fact seeking order
by which the appeal was required to be allowed, thereby setting
aside the decree of eviction passed against the society. I would
revert back to this aspect while deciding the Writ Petition St.
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No.1930/2021 and Writ Petition St. No.4009/2021 in which the
appeal was sought to be withdrawn.
47. Even the decision of this Court in Ramchandra Nahar
would not apply on facts. In that case, it was held that only the
family members residing with the tenant at the time of his death
would get the tenancy rights and no other heir of tenant can be
brought in to bestow upon him the tenancy rights.
48. Lastly, in the case of Pannala Renuka and Anr. Vs. Kavali
(Rajumouni) Venkataiah & Ors.8 , it was found in paragraph 5 that
although purchaser of the property during the pendency of the suit,
as of right, cannot claim to be a necessary or proper party to the
suit, having regard to the circumstances of the each case, the Court
may permit the purchaser pendente lite to come on record.
WP (St) No.1930/2021 and WP (St) No.4009/2021
49. Coming to these petitions, the only distinguishing
feature in these petitions is that the respondent Arham Developers
had sought impleadment by virtue of application (Exh.17) as co-
82006(3) A.P.L.J. 348 (HC)
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appellant No.2. The petitioner Tajdar Amrohi who is the appellant in
Appeal No.193/2008 has sought withdrawal of the appeal in which
such impleadment as a co-appellant has been allowed.
50. Mr. Dhakephalkar, the learned Senior counsel for the
petitioner submitted that such impleadment as a co-appellant could
not have been allowed and it would lead to a situation where Tajdar
Amrohi appellant No.1 is desirous of withdrawing the appeal while
appellant No.2 Arham Developers is interested in prosecuting the
appeal. He also submitted that such impleadment would not be
permissible under Order XXII Rule 10 of CPC.
51. I have gone through para 10 of the impugned order
dealing with the said aspect. The Appellate Bench has found that -
(i) this ground was not raised in the reply filed by the petitioner
herein to the application for impleadment. (ii) the Cozihom society
(defendant No.1) has nothing to do with the impleadment in the
appeal filed by the petitioner Tajdar Amrohi (original plaintiff). (iii)
the effect of such addition and whether there will be conflict of
interest between the existing appellant and the Arham Developers
can be seen at the later stage and not at the sage of considering
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impleadment. (iv) the aggrieved appellant may take appropriate
recourse for transposition amongst them if deemed fit.
For aforesaid reasons, the Appellate Bench has refused
to accept the contention "at this stage".
52. I have given my anxious consideration to the
circumstances and the submissions made. It is true that normally a
person cannot be added or foisted as a plaintiff or as an appellant
without the consent of the plaintiff or the appellant as the case may
be. However, it prima facie, appears that Order I Rule 10 envisages
even the 'continuation of any suit' by such person upon whom such
interest has come or devolved. Thus, prima facie, Order XXII Rule
10 would show that the person can even be added as a plaintiff, in
as much as the said provision envisages continuation of the suit by
or against the person upon whom such interest is devolved. As a
necessary corollary it will also apply to continuation of an appeal, in
as much as an appeal is a continuation of the suit. It transpires that
an application for deletion of the existing appellant is pending
before the Appellate Bench.
53. Having regard to the fact that the Appellate Bench has
also observed that the contention cannot be accepted at this stage, it
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would be open to the parties to urge the same and the Appellate
Bench can consider the same while considering the application for
deletion and/or the application / pursis for withdrawal of the
appeal.
54. I would now propose to briefly deal with the cases on
which reliance is placed by Mr. Dhakephalkar, the learned Senior
counsel for the petitioner. The case of Shiv Prasad Vs. Durga Prasad
and Anr. 9 and Prakash Kaur (Smt) Vs. Sandhooran (Smt) and Anr. 10
involved withdrawal of an application under Order XXI Rule 89(2)
of CPC.
It can thus be seen that both these cases are
distinguishable on facts. In para 12 of Shivprasad , the Supreme
Court has observed that "even on the interpretation of Rule 89(2)
which we have put we are not prepared to accept the contention put
forward on behalf of the appellant that an application under Rule 90
does not stand withdrawn until an order to that effect is recorded by
the Court".
55. It can thus be seen that the said observation is in
context of Rule 89(2) of Order XXI. In the present case, admittedly,
9(1975) 1 SCC 405
10(1993) 3 SCC 312
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there is no formal order passed for withdrawal of the Appeal
No.193/2008.
56. To conclude, prima facie, there is a registered deed of
conveyance executed in favour of Arham Developers. Although the
said deed is sought to be cancelled by virtue of a notice, the suit
filed by the vendors as well as suit filed by the Arham Developers is
pending before this Court. In the suit filed by the later, there is a
prima facie finding while granting interim relief that the property
has passed. That apart, the Hon'ble Supreme Court in the SLP filed
by the society arising out of the suit between the landlord and the
tenant i.e. the society and Tajdar Amrohi has granted impleadment
of 'Arham Developers' permitting it to participate in the proceedings.
At the stage of impleadment, the Court is only required to look at
the prima facie case.
57. In that view of the matter, no case for interference is
made out. The petitions are accordingly dismissed with no order as
to costs.
58. At this stage, the learned counsel for the Petitioners
seeks continuation of the interim relief which was operating in these
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petitions. He seeks the continuation of the interim relief for a
period of eight weeks.
59. Mr. Khandeparkar, the learned counsel for the
respondent/ Arham Developers has opposed the said prayer.
60. Considering the over all circumstances and the fact that
the interim relief was already operating from 3 February 2021, the
same shall continue for a period of eight weeks.
C.V. BHADANG, J.
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