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2008 DIGILAW 1092 (CAL)

Anindya Das Gupta v. Debasish Baisya

2008-12-23

PARTHA SAKHA DATTA

body2008
JUDGMENT:- (1). Order No. 28 dated 10th June, 2008 passed by the learned Civil Judge (Junior Division), 1st Court at Alipore in T. S. No. 219 of 2006 whereby the learned trial Court allowed the application under Order 1 Rule 10(2) read with Order 22 Rule 10, CPC dated 05-12-2007 of the added defendant/ opposite party us under challenge. (2). The plaintiffs instituted a suit against the defendant Nos. 1 and 2/ opposite party No.-1 and 2 praying for a decree for redemption-of mortgage by deposit of dues upon granting, decree for reopening of the accounts in respect of the occupational charges in respect of the ground floor of the suit property as described in schedule B to the plaint for adjustment with simple interest in terms of the deed of mortgage and for a decree for cancellation of the deed dated 16th of June, 1993 on the ground of he said deed being fraudulent and for other consequential reliefs. The plaintiffs purchased the A schedule property i.e. 48 Sarat Ghosh Garden Road, Calcutta -31 from one Smt. Aparna Debi sometime in the year of 1981. A two-storied building was raised thereupon and by a deed of mortgage the plaintiffs mortgaged the suit property by securing a loan of Rs. 50,000/- from the defendants payable with interest and 18% p.a. and the mortgage was redeemable by 26th of December, 1993. After the execution of mortgage the defendants requested for letting them to possess the property which is the ground floor of the premises No. 48C Sarat Ghosh Garden Road on condition that occupational charges payable by the defendant would be adjusted towards payment of interest per month and, accordingly, the defendants enjoyed the property since 1992. Then taking advantage of the discomfortable family condition of the plaintiffs the defendants compelled the plaintiffs to fully part with possession; and they allegedly prepared a draft deed of lease which purported to show the defendants to be lessee therein under the plaintiffs who executed the said deed allegedly in good faith without perusal of the contents of the deed. It was discovered that the documents on which the plaintiff signed was a deed of conveyance which was got executed by the defendants on 16th June, 1993. (3). The defendants 1 and 2 entered appearance and have been contesting the suit in the trial Court. (4). It was discovered that the documents on which the plaintiff signed was a deed of conveyance which was got executed by the defendants on 16th June, 1993. (3). The defendants 1 and 2 entered appearance and have been contesting the suit in the trial Court. (4). During the pendency of the suit one Shri Situ Dutta @ Arun Dutta filed an application under Order 1 Rule 10(2) read with Section 151, CPC praying for being added as a party defendant to the suit on the ground that he had purchased the property from the defendant No. 2 by a deed of conveyance dated 21st of June, 2006 and after such purchase he has been in exclusive possession of the property. Therefore, he should be made a party to the suit. Alternatively, a petition under Order 22 Rule 10, CPC was filed praying for his addition as a party defendant on the ground that interest in the property devolved upon them. The learned trial Court by the order dated 10th June, 2008 allowed the application although the order is without any reasonings. The question is whether the opposite party No. 3 should have been added as a party defendant in the suit on his prayer. (5). Mr. Sabyasachi Bhattacharya, learned Advocate appearing for the petitioner submit that the prayer sought for in the plaint against the opposite party Nos. 1 and 2 who are the defendants in the suit was for redemption of mortgage, and for declaration that the deed of conveyance dated 21st June, 1993 is fraudulent, and that with regard to the question whether mortgage was redeemable or not or whether the deed of conveyance dated 21st of June, 1993 suffered from fraud or not are questions in between the plaintiffs and the defendant Nos. 1 and 2 to which the party added by the trial Court cannot have any say. The added defendant has no locus standi to challenge the plaintiffs prayer for redemption of mortgage or to oppose the plaintiffs prayer for cancellation of the deed of conveyance inasmuch as he was not a party to the mortgage nor was he a party to the deed of conveyance. The added defendant has no locus standi to challenge the plaintiffs prayer for redemption of mortgage or to oppose the plaintiffs prayer for cancellation of the deed of conveyance inasmuch as he was not a party to the mortgage nor was he a party to the deed of conveyance. A third party allegedly having purchased the property sometime later cannot be allowed to be added as party defendant particularly when he will have no role to play with regard to the adjudication of the issues with respect to the pleadings between the plaintiffs and the defendant No. 2. Therefore, it is submitted that the learned trial Court committed illegaiity in allowing the application. (6). Mr. J. Islam, learned Counsel appearing for the opposite party Nos. 2 and 3 submitted that the allegations in the plaint are themselves fraudulent, for the plaintiffs would not have instituted the suit had not the defendants transferred the property to the defendant No. 3 on 21st June, 2006 ; and 13 years after the plaintiffs had executed the deed of sale the suit has been instituted just to thwart the defendant No. 3 to continue in possession of the property by virtue of his deed of conveyance dated 21st June, 2006 executed by the defendant No. 2. It is submitted that since the defendant No. 3 (O.P. No. 3) has a subsisting interest in the property his presence is necessary for complete adjudication of the dispute. (7). Learned trial Court made a one line observation that there is a nexus between the suit property and the property purchased by the petitioner (O.P. No. 3) from Nantu Dasgupta who is the defendant No. 1. (8). One of the principles underlying Order 1 Rule 10(2) is avoidance of multiplicity of proceedings. A party seeking to be impleaded as a party to a suit has to demonstrate that it has a direct and substantial interest in the subject matter of the suit and such interest may be affected directly by the decree that may be passed in the suit. A party seeking to be impleaded as a party to a suit has to demonstrate that it has a direct and substantial interest in the subject matter of the suit and such interest may be affected directly by the decree that may be passed in the suit. In the instant case it is the case o the opposite party No. 3 that he had purchased the property from the defendant No. 2 in favour of whom the plaintiffs allegedly executed a deed of mortgage and subsequently a deed of lease, and that after such purchase in June 2006 he has been in exclusive possession of the property and that neither the plaintiffs nor the defendants 1 and 2 does had any subsisting interest or possession in the property. In view of such a position the presence of the opposite party No. 3 may not be improper although he may no necessarily be a necessary party because of the fact that he was not a party either to the deed of mortgage or to the purported deed of lease or to the purported deed of sale dated 16th June, 1993. It cannot be contradicted that the opposite party No. 3 is a proper party in view of his alleged purchase of the property before the institution of the suit and of his alleged possession therein and his presence is necessary in order to have a complete and fina decision of the questions involved in the proceeding. It is the settled proposition of law that the parties having an interest by purchase are prope parties. Reference in this connection may be had to Sahadev Kundu v. Jogesh Sekhar as reported in (1993)1 Cat HN 408. As said above, if for the present the opposite party No. 3 is excluded there will be multiplicity o proceedings because in the event a decree is passed against the defendan Nos. 1 and 2 without his presence in the suit he would be eligible to make an application under Order 21 Rule 99, CPC on the ground that before institution of the suit he had already purchased the property and his vendo put him into possession thereof. That the date of purchase of the added defendant is anterior to the date of the institution of the suit and the plaintiffs do not claim possession of the property are the facts to be reckoned with. (9). That the date of purchase of the added defendant is anterior to the date of the institution of the suit and the plaintiffs do not claim possession of the property are the facts to be reckoned with. (9). In such circumstances, the opposite party No. 3 has been rightly included though the trial Court did not assign any reason for such inclusion. (10). The application is dismissed. Interim order is vacated. (11). A copy of this judgment shall be sent to the learned Civil Judge, Junior Division, 1st Court, Alipore for information and necessary action.