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2010 DIGILAW 637 (ALL)

SUNIL KHAN v. ANUPAM HOUSING (P) LTD.

2010-02-18

P.C.VERMA, R.A.SINGH

body2010
JUDGMENT Hon’ble P.C. Verma, J.—This is an application filed by the applicants, Sunil Khan and Manoj Khan, with the prayer to permit them to file the present first appeal, being First Appeal No. 482 of 2008, against the judgment and decree dated 31.3.2008 passed by the Additional District Judge, Court No. 1, Agra in Original Suit No. 306 of 1998 between Anupam Housing (P) Ltd. v. U.P. Small Industries Corpn. Ltd. and others (in brief, the “UPSIC”). 2. Heard the counsel for the parties and perused the materials on record. The respondents, including UPSIC, opposed the present application. 3. The brief facts giving rise to the present application are that the Original Suit No. 306 of 1998 was filed by M/S Anupam Housing (P) Ltd., Agra (in brief “AHPL”) against UPSIC for specific performance of an alleged contract concluded between UPSIC and AHPL in February, 1997, for the transfer of the leasehold rights of a plot of land, being Block No. 86/4 measuring 606.17 sq. mtrs. situated in Sanjay Place Commercial Complex, Agra. In the said suit, the present applicants, Sunil Khan and Manoj Khan moved an application for their impleadment under Order 1, Rule 10, Code of Civil Procedure on 22.5.1998 (Annexure CA-1 to the Counter-affidavit filed on behalf of AHPL) on the ground that they were the highest bidders of a subsequent auction made on 30.3.1998 by the UPSIC. The said application for impleadment was objected to by AHPL (Annexure CA-2) and it was rejected, after due consideration, by the Trial Court on 16.7.1998 (Annexure CA-3) against which a Revision Petition, being Civil Revision No. 332 of 1998, was filed before this Court (Annexure CA-4), which after hearing the parties was rejected by this Court vide its judgment dated 19.5.2000 (Annexure CA-5). In the said judgment, it was held: “In the instant case, if the revisionists are allowed to be impleaded as proper parties to the suit, that would widen the scope of the controversy and a new cause of action shall have to be inquired into and adjudicated as to whether there is a concluded contract in favour of the revisionists.” 4. Admittedly, the above order dated 19.5.2000 (Annexure CA-5) of this Court has attained finality as no SLP was filed against it by the applicants. Admittedly, the above order dated 19.5.2000 (Annexure CA-5) of this Court has attained finality as no SLP was filed against it by the applicants. It is also an admitted fact that the bid of the applicants has not been approved till date, as is apparent from the list of dates filed by the applicants. Further, the applicants are the third party and strangers in so far as the alleged contract of February, 1997 between AHPL and UPSIC is concerned. 5. In view of the above, once the impleadment of the applicants stood rejected by the Trial Court on 16.7.1998 in Original Suit No. 306 of 1998 and the order of rejection was upheld by this Court on 19.5.2000, there is no question of permitting the applicants now to file their appeal against the judgment and decree of the Trial Court dated 31.3.2008 of Original Suit No. 306 of 1998. If the applicants were permitted to file this appeal, it would mean allowing their impleadment, which stood finally rejected as said above. The present application is, therefore, also barred by the principles of res judicata, as they apply not in respect of separate proceedings only but also to the subsequent stage of the same proceedings and the Court is precluded to go into that question again which has been decided or deemed to have been decided by it at an early stage. 6. Moreover, the applicants in law have no locus standi to intervene in a suit for specific performance of a contract to which they were not parties to and their presence is not needed to determine the dispute of specific performance. If the applicants become parties, it would indisputably widen the scope of the controversy. Recently, the Supreme Court in Bharat Karsondas Thakkar v. M/s Kiran Construction Co. and others, AIR 2008 SC 2134 , held: “Admittedly, the appellant herein is a third party to the agreement and does not, therefore, fall within the category of “parties to the agreement”. The appellant also does not come within the ambit of Section 19 of the said Act, which, provides for relief against parties and persons claiming under them by subsequent title. This aspect of the matter has been dealt with in detail in Kasturi’s Case (supra). The appellant also does not come within the ambit of Section 19 of the said Act, which, provides for relief against parties and persons claiming under them by subsequent title. This aspect of the matter has been dealt with in detail in Kasturi’s Case (supra). While holding that the scope of a suit for specific performance could not be enlarged to convert the same into a suit for title and possession. Their Lordships observed that a third party or a stranger to the contract could not be added so as to convert a suit of one character into a suit of a different character.” 7. Similarly, in Anil Kumar Singh v. Shivnath Mishra alis Gadasa Guru, (1995) 3 SCC 145, the Supreme Court held that in a suit for specific performance of a contract of sale of immovable property, a person who is not a party to the contract though he acquired subsequent interest as a co-owner by virtue of a decree obtained from the Court is “neither a necessary nor a proper party to adjudicate upon the dispute arising in the suit so as to render and effective and complete adjudication of the dispute involved in the suit.” 8. Much stress has been laid on behalf of the applicants on the interim order of the Hon’ble Supreme Court dated 20.3.1998 which was passed in the SLP (C) No. 5671 of 1998 filed by AHPL but this interim order stood discharged when the SLP was dismissed as withdrawn on 30.4.1998. The applicants’ case does not go any further on the basis of the said interim order, which was considered by this Court while passing the aforesaid order dated 19.5.2000 passed in C.R. No. 332 of 1998, and it was said: “It is also not disputed that against order dated 21st February, 1998, the SLP No. 5671 of 1998 was filed before the Hon’ble Supreme Court in which interim order dated 20.12.1998 was passed by the Hon’ble Supreme Court which was to the following effect: “Let the auction take place, if due. In the event of it succeeding, the final bid be not accepted till further orders.” It is further undisputed that the SLP was ultimately dismissed by Hon’ble Supreme Court by order dated 30.4.1998 as withdrawn and the interim injunction was vacated. In the event of it succeeding, the final bid be not accepted till further orders.” It is further undisputed that the SLP was ultimately dismissed by Hon’ble Supreme Court by order dated 30.4.1998 as withdrawn and the interim injunction was vacated. The ultimate result of the writ petition filed by the plaintiff /respondent No. 1 and the SLP filed by it in the Hon’ble Supreme Court is that nothing was decided with regard to the controversy in hand, and in view of the order passed by High Court petitioner was entitled to have recourse to the alternative remedy which may be available to him.” 9. Strangely, the applicants admittedly instituted a suit against UPSIC on 21.7.1998 being Original Suit No. 461 of 1998 on the same cause of action and a copy of a plaint is Annexure CA-7 but the same stood dismissed on 5.8.1999 (Annexure CA-9). As such, the applicants were unsuccessful there also. 10. Moreover, the applicants are not the “person aggrieved” to maintain an appeal against the impugned judgment dated 31.3.2008, as it was neither a decision against them nor their rights were adjudicated. It is settled law that a person for being person aggrieved must have an appealable interest which, as explained in State of U.P. v. Smt. Ramshree and another, AIR 1976 All 121, would mean that “this interest, of course, should not be contingent, speculative or futuritive. It must be substantial, immediate and pecuniary. Such an interest must have invaded legal rights of the person filing an appeal.” Hence, the applicants should fail on this score also as they are not “person aggrieved.” 11. In view of the forgoing, the present application of the applicants, Sunil Khan and Manoj Khan, for grant of permission to file the present appeal, being First Appeal No. 482 of 2008, is totally misconceived and devoid of any substance. Hence, same is accordingly dismissed. Consequently, the memo of appeal filed by the applicants of First Appeal No. 482 is also dismissed as non-maintainable. —————