Smt. Saroj Agarwal vs Smt. Kalidassi Das & Ors
2022 Latest Caselaw 6295 Cal

6.9.2022

Ct. no. 652 sb C.O. 1167 of 2019

Smt. Saroj Agarwal Vs.

Smt. Kalidassi Das & Ors.

Mr. Debdut Mukherjee ...for the petitioner

Being aggrieved and dissatisfied with the

impugned order dated 22nd February, 2019 passed by

the Civil Judge (Senior Division), 2nd Court, Barasat in

Title Suit no. 98 of 2011, petitioner herein preferred this

application under Article 227 of the constitution of India.

The petitioner contended that the petitioner

previously filed a suit against the opposite party being

title suit no. 95 of 1994 in the court of learned Assistant

District Judge, 2nd court, Barasat praying for inter alia

specific performance of an agreement for sale dated 3rd

March, 1992 since the opposite parties had refused to

execute or register the necessary conveyance in respect

of the suit property in favour of the petitioner.

In the said suit one Dilip Jaiswal and one Lakhi

Debi Jaiswal (in short Jaiswal) have made an application

under Order 1 rule 10 of the Code of Civil Procedure

(hereinafter referred to CPC) for adding themselves in the

suit on the basis that the opposite party herein had also

entered into a purported agreement for sale of the suit

property with the said Jaiswals and such application

was allowed. Said suit being TS 95 of 1994 subsequently

transferred to the High Court and renumbered as

extraordinary suit no. 1 of 1999 On 3rd October, 1997.

The opposite parties wrongfully and illegally purported to

sell the suit property to Jaiswals by executing a deed of

conveyance and after executing such deed, the Jaiswals

did not pursue the suit filed by the Jaiswals.

The High Court at Calcutta was pleased to pass an

order dated 28th March, 2001 granting leave to the

petitioner to amend the plaint of the said suit to include

appropriate prayers for inter alia execution of the deed of

conveyance dated 3rd October, 1997 purportedly

executed by the opposite parties in favour of the Jaiswals

and by the judgment and decree dated 10th April, 2001,

the High Court was pleased to grant inter alia a decree of

specific performance of the aforesaid agreement in favour

of the petitioner. In the said judgment and decree, the

High Court was pleased to pass a decree of cancellation

of the purported deed dated 3rd October, 1997 executed

by the opposite party in favour of the Jaiswals and

directed the opposite party to execute and register the

deed of conveyance in respect of the suit property in

favour of the petitioner. Such decree was never appealed

against and it is binding upon the parties. On the failure

of the opposite parties to comply with the said decree,

the learned Registrar, Original Side, High Court,

Calcutta duly executed and registered the appropriate

deed of conveyance in favour of the petitioner in respect

of the suit property and by the said judgment, and

decree, the opposite parties were restrained by decree of

perpetual injunction from ousting the petitioner from the

said property. As the opposite party along with anti-

social elements forcibly trespassed to the suit property

by ousting the petitioner from the physical possession of

the suit property thereof, the petitioner constrained to

institute the present Title suit no. 98 of 2011 praying for

decree of Khas possession and injunction.

During pendency of the aforesaid suit, the said

Jaiswals namely Dilip Jaiswal and Lakhi Debi Jaiswal

filed an application in or about July, 2017 for being

added in the said Title suit no. 98 of 2011 in defendant

category, claiming ownership in the property on the

strength of said purported deed of conveyance dated 24th

February, 1998 which was cancelled by the aforesaid

decree of High Court on 10th April, 2001 passed in

extraordinary suit no. 1 of 1999 in which the said

Jaiswals were parties.

The present petitioner filed objection before the

trial court and apprised the trial court about the factum

of cancellation of the deed of conveyance on the basis of

which the Jaiswals has made the application for addition

as a party. But unfortunately by the impugned order

dated 2nd February, 2019, the learned court below was

pleased to allow the said application under 1, Rule 10

C.P.C. filed by the said Jaiswals and allowed them to be

added as parties and directed the plaintiff to amend the

cause title accordingly.

In spite of service of the revisional application, the

opposite parties are not represented.

It is fundamental that plaintiff is the dominus litus

of a suit. The Court is not supposed to add a person as a

defendant in a suit, as a rule, specially when plaintiff is

opposing such addition. The reason behind is that

plaintiff is the master of the suit. He cannot be

compelled to fight against whom he has not claimed any

relief.

The principle behind impleading a third party to a

proceeding is mainly for avoidance of multiplicity of

proceeding and accordingly court has no jurisdiction to

add a party unless he is a necessary or proper party.

In the present case, in the petition for addition of

parties, said Jaiswals namely, one Dilip Jaiswal and one

Lakhi Debi Jaiswal has stated that they have become

owner of suit property by dint of deed No. 1166 and as

such prayed for adding them as necessary party.

However, the opposite party have specifically mentioned

in their objection that though the deed no. has been

correctly stated as 1166 but the deed is actually dated

3rd October, 1997. It further appears from the order of

this court dated 10.04.2001 that the said deed no. 1166

has been declared as cancelled and accordingly it also

appears from certified copy that the fact of cancellation

of said deed, in terms of order of High Court has been

duly noted in the concerned Register of Registry office.

In view of the above, it clearly shows that the

petitioners have suppressed that the deed no. 1166 by

which they have claimed ownership in the suit property

has been cancelled by the High Court and by dint of that

cancelled deed they have prayed for adding them as

necessary party in the said suit. In view of above the

petitioners of said application under order 1, Rule 10

C.P.C. are neither necessary party nor proper party and

therefore there is no requirement that the suit should be

heard or disposed of in their presence.

Having considered the facts and circumstances of

the case, the order no. 60 dated 22.2.2019 passed by the

learned Civil Judge (Senior Division), 2nd court, Barasat,

North 24 parganas in title suit no. 98 of 2011 is hereby

set aside.

The matter is pending since long, the trial court is

requested to make all endeavour for expeditious disposal

of the suit and to conclude the entire proceeding of the

suit, preferably within a period of 10 months from the

date of the communication of this order.

Accordingly, C.O. 1167 of 2019 is disposed of.

Urgent photostat certified copy of this order, duly

applied for, be given to the parties upon compliance of all

requisite formalities.

(Ajoy Kumar Mukherjee, J.)