Gauhati High Court

M/S Perfect Motors Pvt. Ltd vs Md. Saifuddin Ahmed And 15 on 10 February, 2021

Page No.# 1/9

GAHC010008532014

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

I.A.(Civil)/4266/2018

M/S PERFECT MOTORS PVT. LTD.
A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES
ACT
1956 AND HAVING ITS REGISTERED OFFICE SITUATED AT G.S. ROAD
GUWAHATI-781005.
REPRESENTED BY ITS MANAGING DIRECTOR
SHRI VIDYA SAGAR SARIN
S/O LATE RAI BAHADUR BASHAN DAS SARIN C/O PERFECT MOTORS PVT.
LTD.
G.S. ROAD
GUWAHATI-781005
IN THE DISTRICT OF KAMRUP (METRO)
ASSAM.

VERSUS

MD. SAIFUDDIN AHMED AND 15
S/O LATE HAFIZ @ HAFIZUDDIN AHMED
R/O ULUBARI
HAFIZANAGAR
MOUZA-ULUBARI
P.S.-PALTANBAZAR
GUWAHATI-781007
IN THE DISTRICT OF KAMRUP (METRO)
ASSAM

2:MD. HABIBUR RAHMAN
S/O LATE HAFIZ @ HAFIZUDDIN AHMED
R/O ULUBARI
HAFIZANAGAR
MOUZA-ULUBARI
P.S.-PALTANBAZAR
GUWAHATI-781007
Page No.# 2/9

IN THE DISTRICT OF KAMRUP (METRO)
ASSAM
3:MD RAJIBUDDIN AHMED
S/O LATE HAFIZ @ HAFIZUDDIN AHMED
R/O ULUBARI
HAFIZANAGAR
MOUZA-ULUBARI
P.S.-PALTANBAZAR
GUWAHATI-781007
IN THE DISTRICT OF KAMRUP (METRO)
ASSAM
4:MD REKIBUDDIN AHMED
S/O LATE HAFIZ @ HAFIZUDDIN AHMED
R/O ULUBARI
HAFIZANAGAR
MOUZA-ULUBARI
P.S.-PALTANBAZAR
GUWAHATI-781007
IN THE DISTRICT OF KAMRUP (METRO)
ASSAM
5:ON THE DEATH OF NURJAHAN BEGUM HER LEGAL HEIRS MAKIBUR
RAHMAN
S/O LATE NABABJAN ALI
R/O KUMARPARA
GUWAHATI-781001
IN THE DISTRICT OF KAMRUP (METRO)
ASSAM
6:MD IMRAN HUSSAIN
S/O LATE NABABJAN ALI
R/O KUMARPARA
GUWAHATI-781001
IN THE DISTRICT OF KAMRUP (METRO)
ASSAM
7:MD FARUK HUSSAIN
S/O LATE NABABJAN ALI
R/O KUMARPARA
GUWAHATI-781001
IN THE DISTRICT OF KAMRUP (METRO)
ASSAM
8:MUSTT. NURNAHAR BEGUM
D/O LATE NABABJAN ALI
R/O KUMARPARA
GUWAHATI-781001
IN THE DISTRICT OF KAMRUP (METRO)
ASSAM
9:MUSTT. BIALKISH BEGUM
D/O LATE NABABJAN ALI
R/O KUMARPARA
Page No.# 3/9

GUWAHATI-781001
IN THE DISTRICT OF KAMRUP (METRO)
ASSAM
10:ON THE DEATH OF MUSTT. NOORATAN BEGUM HER LEGAL HEIRS
MUSTT. SALEHA BEGUM
W/O LATE ABDUL LATIF
R/O HAFIZNAGAR TOWN
ULUBARI
GUWAHATI-781001
IN THE DISTRICT OF KAMRUP(M)
ASSAM
11:MUSTT GULENA BEGUM @ GUL
W/O LATE SAFIQUL HUSSAIN
R/O HAFIZNAGAR TOWN
ULUBARI
GUWAHATI-781001
IN THE DISTRICT OF KAMRUP(M)
ASSAM
12:MUSTT SARIFA BEGUM
W/O MD KASEM ALI
R/O HAFIZNAGAR TOWN
ULUBARI
GUWAHATI-781001
IN THE DISTRICT OF KAMRUP(M)
ASSAM
13:MUSTT RAZIA BEGUM
W/O MD RAHMAN ALI SAKIA
R/O HAFIZNAGAR TOWN
ULUBARI
GUWAHATI-781001
IN THE DISTRICT OF KAMRUP(M)
ASSAM
14:MD. HABIBULLA
S/O LATE MAZUDULLA
R/O HAFIZNAGAR TOWN
ULUBARI
GUWAHATI-781001
IN THE DISTRICT OF KAMRUP(M)
ASSAM
15:MD. AZIZULLA
S/O LATE MAZIDULLA
R/O HAFIZNAGAR TOWN
ULUBARI
GUWAHATI-781001
IN THE DISTRICT OF KAMRUP(M)
ASSAM
16:MD. FAIZULLA
S/O LATE MAZIDULLA
Page No.# 4/9

R/O HAFIZNAGAR TOWN
ULUBARI
GUWAHATI-781001
IN THE DISTRICT OF KAMRUP(M)
ASSAM
------------
Advocate for : MR. D BARUAH
Advocate for : MR. R SARMA appearing for MD. SAIFUDDIN AHMED AND 15

BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA

ORDER

10.02.2021

Heard Mr. D. Baruah, learned counsel for the applicant and Mr. R.K. Bhuyan, learned counsel for the opposite party nos. 1 to 4, who are the appellants in the connected appeal. Also heard Mr. S.J. Sarma, learned counsel appearing for the legal representatives of the deceased respondent no. 4 in the connected appeal, who have filed I.A.(C) 615/2015, I.A.(C) 616/2015 and I.A.(C) 617/2015, inter alia, praying for condonation of delay, for setting aside abatement and for substitution, which are pending adjudication. Also heard Mr. T.G. Baruah, learned counsel for the opposite party nos. 6(1) to 6(3), 7, 8(1) to 8(4) and 13(1) and Mr. M.B.U. Ahmed, learned counsel for the opposite party no. 5 and Mr. B.D. Deka, learned counsel for the legal representatives of the deceased opposite party nos. 12 and 16.

2. By this application under Order XXII Rule 10 read with section 146 and 151 CPC, the applicants are seeking leave to permit the applicant to participate and contest in the connected appeal. It is projected that in the early 1980's, Hafizuddin Ahmed (defendant no.1 in TS 37/1980, since deceased), along with his sons (opposite parties no.1 to 4) had agreed to sell a plot of land measuring about 2K to the applicant, which is described in Schedule-1 to the instant application. It is projected that the land was low and marshy, which was filled up by the applicant and it was made usable and that since early 2000, the applicant made constructions on the said land and started a workshop for vehicles. The said land was sold to Page No.# 5/9

the applicant vide sale deed bearing registered deed no. 8853/2003 dated 11.10.2003. It is claimed that separate registered agreements for sale bearing deed no. 2618/2013 and 2682/2013 dated 01.04.2013 was made between the opposite party no.1 and the applicant in respect of 2K land each morefully described in Schedule-2 and Schedule-3 of the instant application and delivered possession thereof to the applicant. It is projected that from time to time, further money was paid by the applicant to the opposite party no.1. These agreements were executed during the pendency of the T.S. 37/1989 (formerly numbered as TS 18/1979) and Title Appeal No. 1/2010. The learned counsel for the applicant has submitted that while purchasing the said land and entering into the agreement for sale, the applicant was not aware of the pendency of the suit. Accordingly, it is submitted that there was devolution of interest in respect of 2K purchased land and 4K land by virtue of two agreements for sale, which was a part of the suit/ decreetal land and, as such, the applicant seeks to be impleaded in the connected appeal to secure its interest. It is submitted that although the learned trial Court had decreed the suit on 23.11.2009, thereby allowing partition and recovery of possession, but the decree was modified by the learned first appellate Court by common judgment and decree dated 10.10.2013 passed in T.A. No. 1/2010 and T.A. No.2/2010, and the decree for recovery of possession was disallowed. It is submitted that the opposite party nos. 1 to 4 had filed RSA No. 129/2014 against decree in T.A. No. 1/2010, and RSA No. 62/2018 against decree in T.A. No. 2/2010. In support of his submissions, the learned counsel for the petitioner has referred to the case of (i) T.G. Ashok Kumar Vs. Govindammal & Anr., (2010) 14 SCC 370, and (ii) Amit Kumar Shaw & Anr. Vs. Farida Khatoon & Anr., (2005) 11 SCC 403.

3. The opposite parties have all vehemently contested this application. It is submitted that this is not a case to allow impleading under Order XXII Rule 10 CPC. However, it is submitted that the appellant no.1, who was the vendor of the said deed and two agreements for sale has assailed the decree and is taking steps in safeguarding the interest of the applicant.

4. The learned counsel for the opposite party nos. 6(1) to 6(3), 7, 8(1) to 8(4) and 13(1) has also submitted in this application, the applicant has impleaded the opposite Page No.# 6/9

party no. 8, who had died on 13.07.2010. Accordingly, it is submitted that if this application is allowed, it would be an order against a dead person and, as such, a nullity. It is also submitted that as per the case projected by the applicant, it was claimed that the applicant and his son were in possession of a part of the suit/ decreetal land since 1960, which was much prior to the institution of the suit. Hence, it is submitted that this was not a fit case to allow the applicant to be impleaded under Order XXII Rule 10 CPC. The learned counsel has also referred to the affidavit- in- opposition and has made his submission on the merit of the purported claim of the applicant regarding title over a part of the suit/ decreetal land, but as the Court is only examining whether the applicant ought to be impleaded or not, there appears to be no necessity to examine the claim of the parties on merit at this premature stage. By referring to TS No. 144/2019 filed by the applicant for declaration, recovery of possession, etc., it is submitted that it is established that the applicant has no existing right, title and interest over the suit land and, as such, no case was made out for being impleaded in the connected appeal. In support of his submissions, the learned counsel has referred to the case of (i) Mahesh Yadav & anr. Vs. Rajeshwar Singh & ors., (2009) 1 SCC (Civil) 454: (2009) 2 SCC 205 and (ii) Neerja Realtors Pvt. Ltd. Vs. Janglu (Dead) through LRs., (2018) 2 SCC Civil 282: (2018) 2 SCC 649.

5. The learned counsel for the opposite party no. 5 has also vehemently objected to this application. The learned counsel has questioned the legality of the right, title and interest which the applicant claims to have devolved on it, but as this is an application for impleading, the submission on the merit of alleged purchase of a part of the suit land by the applicant is not required to be examined at this stage.

6. The learned counsel for the opposite party nos. 12 and 16 had adopted the submissions made by learned counsel for the other opposite parties. It is further submitted that, the appropriate provision which perhaps could be invoked for impleading the applicant as one of the respondent in the connected appeal would be Order XLI, Rule 20 of the CPC and not the provision of Order XXII, Rule 10 of the CPC. However, by referring to Sub-Rule (2) of Rule 20 of Order XLI of CPC, it is submitted that this Court would have no power to implead the applicant at this stage as the period for limitation prescribed for appeal has Page No.# 7/9

already expired. In this regard it is submitted that it is obvious that the purpose of the applicant to be impleaded in this appeal is not to support this decree. Hence, the intention of the applicant is to support the appellant to assail the decree, which he could not have done directly.

7. At the outset, it is reiterated that this is not the appropriate stage for the Court to examine (i) the question relating to right, title and interest which the applicant might have or might not have acquired by virtue of the four sale deeds, and (ii) as to the legality of the purported sale of a part of the suit/ decreetal land by the appellant no. 1 in favour of the applicant, because at present, the Court is examining whether or not to implead the applicant in the connected appeal. Accordingly, submissions made by the learned counsel for the opposite parties in so far as it touches the right, title and interest of the applicant or any parties to the connected appeal has not been examined at this stage, being unnecessary.

8. Two cases were cited by the learned counsel for the opposite party nos. 6(1) to 6(3), 7, 8(1) to 8(4) and 13(1) in support his submission that the applicant is not entitled to be impleaded as a respondent in the connected appeal. Both the cases relate to well settled law relating to remedy available to a party suffering ex parte decree. Therefore, the cited case is nowhere near to the point canvassed. The Court fails to understand the purpose for citing the said two cases which are not at all an authority on the point that the parties on whom interest over the suit land is devolved during the pendency of litigation cannot be impleaded as a respondent in the appeal. The case of (i) Mahesh Yadav (supra) and (ii) Neerja Realtors (supra), were cited for no worthwhile purpose, rather, precious Court time was spent to deal with unnecessary citations.

9. It was submitted by the learned counsel for the respondent nos. 6(1) to 6(3), 7, 8(1) to 8(4) and 13(1) that the applicant had impleaded opposite party no. 8, who had died on 13.07.2010 and accordingly, it was submitted that if this application is allowed, it would be an order against a dead person and, as such, a nullity. The said submission shall not come in the way because the order of impleading the applicant as a party respondent Page No.# 8/9

would operate against the appellant and not against a co-respondent.

10. The learned counsel for the opposite party nos. 12 and 16 had submitted that the connected appeal was otherwise not maintainable for non- joinder of the applicant as a necessary party. Hence, it was submitted that this application was in collusion with the appellants with a view to cure the defect in the memo of the connected appeal. In this regard, it would not be out of place to mention that the learned counsel for the applicant had projected that the learned trial Court had passed a preliminary decree for partition and that in so far as the decree for recovery of possession, the first appellate Court had interfered with the decree for khas possession. However, in the proceeding of T.Ex. Case No. 1/2010, the decree for recovery of khas possession was executed on 03.08.2018, which prima facie belies the apprehension of the learned counsel for the respondent nos. 12 and 16 that this application was collusive. The learned counsel for the respondent nos. 12 and 16 had expressed an apprehension that the purpose of the application was to assail the decree and to support the appellants. Assuming that the apprehension is correct, yet, the learned counsel opposing this application could not show any provision of law or a case law on the appoint that such an apprehension was a good ground to deny impleadment of the applicant in the connected appeal.

11. In this present application, the applicant claims that on 26.07.2018, the applicant came to know about the decree passed in the suit and on 29.03.2019, the applicant approached the learned Court of Civil Judge No.1, Kamrup (M), Guwahati by filing T.S. No.144/2019 and on 27.08.2018, the applicant had filed Misc. (J) case no.620/2018 before the learned executing Court, which was filed under section 47 read with section 146, 144 and 151 CPC and by order dated 01.09.2018, status quo with regard to the land was ordered. However, it is claimed that on the said date i.e. 03.08.2018, the decree as passed by the learned trial Court was executed without the appellate decree being brought to the notice of the learned executing Court. Thereafter, the present application was filed on 10.12.2018.

12. Under such circumstances, the applicant has been able to demonstrate that he has a right to appear in the connected appeal as a right has devolved on the applicant by Page No.# 9/9

transfer of a part of the suit land by the appellant no. 1. Under such circumstances, the Court is inclined to invoke the provisions of Order XXII Rule 10 CPC so as to implead the applicant herein as respondent no.8 in the connected R.S.A. 129/2014.

13. In the case of Amit Kumar Shaw (supra), the Supreme Court of India has held that the despite bar under Section 52 of the Transfer of Property Act, 1882, the Court has the discretion to join the transferee pentente lite as a party in the proceeding. Hence, in this case in hand, it is found that to secure his interest, the applicant has a right to be arrayed as a co-respondent in the present appeal. Accordingly, the Court is of the considered opinion that this is a fit and proper case to allow the applicant to be impleaded under Order XXII, Rule 10 CPC as applied for.

14. Before parting with the records, it is clarified that the Court has not adjudicated on the merit of the respective rights or claims of any party to the connected appeal, including claim of right of the applicant, as such, nothing contained in the order would prejudice either side when the connected appeal is heard on merit.

15. The learned counsel for the appellant shall provide a copy of the memo of appeal with all enclosures to the learned counsel for the applicant within a week from today.

JUDGE

Comparing Assistant