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2007 DIGILAW 543 (CAL)

Bikash Sharma v. Sudama Majhi

2007-07-20

MANIK MOHAN SARKAR

body2007
Judgment :- (1.) THIS is an application under Article 227 of the Constitution of India preferred against Order No. 9 dated July 24, 2006 passed by Mr. S.A. Ansari, learned Single Judge (Junior Division) at jalpaiguri in Title Suit No. 148/2006. (2.) BRIEFLY, petitioners case is that he brought Title Suit No. 148 of 2006 against opposite party Nos. 2 and 3 as defendant Nos. 1 and 2 and opposite party Nos. 4 to 12 as proforma defendant Nos. 3 to 11, for declaration of tile, perpetual injunction and consequential reliefs. On June 20,2006, the petitioner jointly with opposite party Nos. 2 and 3 (proforma defendants there) filed an application for compromise of the suit under Order 23 Rule 3 of the Code of civil Procedure for passing a compromise decree. On the same day, the petitioner also filed another application under order 6 Rule 17 of the Code of civil Procedure for amendment of the plaint and on the other hand, the proforma defendant Nos. 3 to 12 also filed another application under Order 1 rule 10 (2) of the Code of Civil Procedure for their transposition to the category of co-plaintiffs. Subsequently, on July 14, 2006, the present opposite party no. 1, Shri Sudama Majhi filed an application under Order 1 Rule 10 (2) of the Code of Civil Procedure for adding him as a defendant in that suit. The petitioner and the proforma opposite party Nos. 4 to 12 filed written objection against that application of Sri Sudama Majhi. Ultimately, the learned Civil judge (Junior Division) at Jalpaiguri passed order No. 9 dated July 24, 2006 allowing the said application of Sri Sudama Majhi adding him as a defendant together with a direction to serve amended copies of summons and plaint to the said added defendant and also the learned Trial Judge rejected the application of proforma defendant nos. 3 to 11 (opposite party Nos. 4 to 12) for their transposition as plaintiffs. (3.) THE said Order No. 9 dated July 24, 2006 is under challenge in the present revisional application as the exercise of jurisdiction not vested on the learned Trial Judge and claimed that a miscarriage of justice has been done by adding present opposite party No.1 as a defendant in that suit though he is neither a necessary nor proper party to the suit. (4.) MR. (4.) MR. Sabyasachi Bhattacharya, representing the petitioner, submitted that opposite party No. 1 cannot be called a necessary party in the suit concerned which was filed for declaration of title by the present petitioner against opposite party Nos. 2 and 3 in the suit concerned for declaration of his title together with proforma opposite party Nps. 4 to 12 and the present opposite party No. 1 had no title over the suit property in any capacity though he has claimed that he held an agreement to sale with the petitioner and others. According to Mr. Bhattacharya, the present opposite party No. 1 has no cause of action against the claim of the petitioner for declaration of his title along with opposite party Nos. 4 to 12 in the suit property concerned and that an agreement to sale is not sufficient for his claim to be impleaded as a party in the suit filed by the present petitioner against opposite party nos. 2 and 3. It is claimed that opposite party no. 1 is neither a necessary party nor a proper party and for that reason he is not in a position to claim any right of impleadment as per provision of Order 1 Rule 10 (2) of the Code of Civil Procedure, and he submitted that at best, the present opposite party no. 1 can bring a suit for specific performance against the petitioner if there had been any such agreement to sale though the petitioner denies of any such existence. (5.) MR. Jiban Ratan Chatterjee, learned Senior Counsel for the opposite party No. 1, submitted that the suit filed by the petitioner before the learned trial Judge is nothing but a suit in camouflage for creating title of opposite party Nos. 2 and 3 (defendant Nos. 1 and 2 there)by way of a compromise decree though the opposite party Nos. 2 and 3 have got no document of title over the suit property and by an act of mischief the petitioner has tried to defeat the claim of opposite party No. 1 of a right accrued in him of having execution of the Sale Deed by virtue of the agreement to sale executed in between the petitioner and the opposite party No. 1 prior to filing of the suit concerned being Title Suit No. 148 of 2006. It is further submitted by Mr. It is further submitted by Mr. Chatterjee that the opposite party No.1, Shri Sudama Majhi has already filed a suit for specific performance which is also pending before the learned Trial Judge where suit filed by the present petitioner is also pending. (6.) MR. Chatterjee further submitted that the plaint of the present suit was filed on 20.5.2006 and within a month the application for compromise of the suit by way of creation of title over the suit property of opposite party nos. 2 and 3 has been filed and it is claimed that a false story of invasion over the suit property by opposite party Nos. 2 and 3 has been created for inventing a cause of action for filing of the said suit. (7.) MR. Chatterjee submitted that learned trial Judge made no mistake in allowing the application of the present opposite party No. 1 for his inclusion and impleadment as defendant in the suit brought by the present petitioner since the presence of opposite party no. 1 in the suit concerned is very much needed for complete adjudication in respect of right, title and interest over the suit property. (8.) THOUGH the petitioner has denied the agreement to sale, which opposite party No. 1 holds, it is an admitted position that the opposite party no. 1 has instituted a suit for specific performance of the said agreement to sale against the present petitioner having co-sharers/co-owners and the opposite party No. 2 has also been made party in the said suit. (9.) THE provision of Order 1 Rule 10 (2) of the Code of Civil Procedure provides for adding a plaintiff or defendant who ought to have been joined and whose presence before the Court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit. (10.) ALLEGATIONS and counter-allegations have come from the respective parties in respect of the claims and counter-claims of the respective parties over the suit property. Since the opposite party No. 1 has brought to the notice of the learned Trial Judge about his holding an agreement to sale over the self same property against the present petitioner and unless the said agreement to sale becomes invalid, the right of the present opposite party no. Since the opposite party No. 1 has brought to the notice of the learned Trial Judge about his holding an agreement to sale over the self same property against the present petitioner and unless the said agreement to sale becomes invalid, the right of the present opposite party no. 1 still persists and when a suit has been filed for specific performance of contract, the claim of the opposite party no. 1 cannot be stated of having no base. From the side of the opposite party No. 1, it is submitted that the present suit is in the nature of a camouflage for creation of title of opposite party Nos. 2 and 3 over the suit property who have no document of title in respect of the same and when there is such allegation, presence of opposite party No. 1 cannot be stated to be as not needed in the suit concerned. (11.) FURTHER, when the opposite party no. 1 has got another suit for specific performance for agreement to sale, there is every scope to the learned trial Judge to hear that suit with the present suit analogously and to pass a common judgment and thereby have a scope of adjudication and settle all the questions involved in respect of the disputed property effectually and completely and for that reason I do not find any reason to interfere with the order passed by the learned Trial Judge. The order for impleading the opposite party No. 1 as a defendant in the title Suit No. 148 of 2006 cannot be stated to be an act done by the learned trial Judge in excess of his jurisdiction and it is well protected by the provision of order 1 Rule 10 (2) of the Code of Civil procedure and the learned Trial Judge has correctly passed the said order. (12.) IN the result, the present revisional application is, thus, dismissed. I pass no order as to costs.