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2010 DIGILAW 1231 (CAL)

Suraj Kumar Jain v. S. M. Shahid Alam

2010-10-01

PRASENJIT MANDAL

body2010
Judgment :- Prasenjit Mandal, J This application is at the instance of the plaintiff and is directed against the order no.105 dated March 3, 2004 passed by the learned Civil Judge (Senior Division), Third Court, Alipore, District: South 24 Parganas in Title Suit No.16 of 1989 thereby rejecting an application for addition of party under Order 1 Rule 10(2) of the Code of Civil Procedure. The plaintiff filed the suit for specific performance of contract and injunction stating, inter alia, that the executive committee of the Mysore Family Cemetry was empowered to sell, exchange and transfer of the properties of the Mysore Family including the suit properties and the said committee executed an unregistered deed of agreement for lease dated May 27, 1985 in favour of the plaintiff to let out the suit property, as described in the schedule of the plaint for a period of 75 years with option to renew for another period of 75 years on payment of selami as determined between the parties. In consideration of such agreement for lease, the plaintiff made a payment of Rs.30,000/-but the said deed of agreement was not effected as yet and for that reason, the plaintiff filed the suit for specific performance of contract. In that suit, one S. M. Shahid Alam filed an application under Order 1 Rule 10(2) of the C.P.C. for impleading him as defendant because he was one of the Mutwallis of the defendant, Mysore Family Fateha Fund Committee. That application was allowed by the impugned order. Being aggrieved by the said impugned order, this application has been preferred by the plaintiff. Mr. Bhattacharyya, learned Advocate appearing on behalf of the petitioner, submits that this is a suit for specific performance of a contract of lease of immovable property for a period of 75 years between the parties as mentioned in the body of the plaint and as such, any third party to the contract cannot have any say in the matter of specific performance of contract. So, the application is not maintainable. So, the application is not maintainable. He also contends that the proposed added defendant, that is, S. M. Shahid Alam, is neither a necessary party nor a proper party to the suit to determine the prayer for specific performance of contract between the parties and so Mutawalli of the defendant no.1 is in no way concerned with the transaction between the parties to the suit and as such, the learned Trial Judge has committed a wrong in allowing the said application in the suit between the parties to the agreement. The application for addition of party is a belated one and it should not have been allowed by the learned Trial Judge. On the other hand, Mr. Srivastava, learned Advocate appearing on behalf of the opposite party no.1, supports the judgment and he submits that according to the provisions of the Wakf Act, 1995, the Mutawalli is entrusted to look after the wakf property and as such, the learned Trial Judge has rightly allowed the application for addition of party. Therefore, the point that emerges for decision is whether the impugned order can be sustained. Upon hearing the learned Advocate for the parties and on perusal of the materials on record, I find that the suit filed by the plaintiff/petitioner was for specific performance of contract and injunction in respect of the property of the Mysore Family Fateha Fund Committee. The secretary of the defendant no.1 was entrusted to deal with the property of the Mysore family and this is a registered society to deal with the property of the Mysore family. An agreement was held between the plaintiff and the defendant no.1 for lease of the property, as described in the schedule of the plaint between the plaintiff and the defendant no.1 for granting lease of the suit property for a period of 75 years on May 27, 1985. But the agreement could not be effected because of certain formalities to be complied with. In the meantime, the Mutawalli (secretary of the defendant no.1) was changed and as per contention of the petitioner, namely, S. M. Shahid Alam claims to be the one of the present Mutawallis (secretary) of the defendant no.1. But the agreement could not be effected because of certain formalities to be complied with. In the meantime, the Mutawalli (secretary of the defendant no.1) was changed and as per contention of the petitioner, namely, S. M. Shahid Alam claims to be the one of the present Mutawallis (secretary) of the defendant no.1. He claims to have been empowered by a resolution dated November 2, 2000 passed by the Board of Wakfs, West Bengal appointing him as one of the joint Mutawallis having right, title and interest in the suit property. The Wakf Act, 1995 has come into force for proper management of the wakf property and accordingly, the Board of Wakfs, West Bengal appointed the Mutawallis for management of the Mysore Family Fateha Fund Wakf Estate. It is also observed by the learned Trial Judge that in a proceeding under Section 9 of the Arbitration and Conciliation Act, 1996 the petitioner was allowed to be added as respondent by an order dated April 23, 1998 passed by Hon’ble Mr. Justice Altamas Kabir (as His Lordship then was) with regard to the Mysore Family Fateha Fund Wakf Estate. Under the circumstances, the learned Trial Judge has observed that the intervenor, that is, the applicant of Order 1 Rule 10(2) of the C.P.C. petition was not totally a stranger in consideration of the nature of the suit. The agreement for lease was not held between the two private parties; but the plaintiff on one hand and the defendant no.1 (Mysore Family Fateha Fund Committee) on the other hand. The intervenor claims as one of the present Mutawallis having interest in the suit property as per provisions of the Wakf Act, 1995. This being the position, the learned Trial Judge observed that the application should be allowed. Therefore, I find that the learned Trial Judge has exercised his discretionary power under the circumstances stated above. In such a situation, there is nothing to interfere with the impugned order. Therefore, this application is dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.