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2011 DIGILAW 183 (JK)

Mehar Chand v. Central Bank of India & Ors.

2011-04-20

MANSOOR AHMAD MIR

body2011
1. This Civil Revision is directed against an order of the learned Additional District Judge (Bank Cases), Jammu dated 29th of September, 2010 in a civil suit titled Central Bank of India v. M/S Rattan Wires and others, in terms of Order 1 Rule 10 of the Code of Civil Procedure (CPC for short), whereby the application for impleadment of Mehar Chand, petitioner herein, came to be rejected, therefore, he has moved this Court for setting aside the same. 2. To appreciate the controversy, it will be apt to give brief resume of facts of the case. A suit for recovery of money came to be filed by the Plaintiff-Bank (hereinafter referred to as respondent 1) before the learned Additional District Judge (Bank Cases) Jammu against Defendant - Rattan lal (hereinafter referred to as Respondent 2). During the pendency of civil suit, Respondent 1 filed an applica­tion for appointment of Receiver under Order 38 Rule 5 read with Order 40 of the Code of Civil Procedure, which constrained the petitioner to file an application for impleadment. It is that application which came to be rejected vide the impugned order. That is why the present Civil Revision has been preferred in this Court. 3. Precisely, the case of the petitioner is that he is in possession of the suit/mortgaged property and in case application for appointment of receiver is allowed that will prejudice the rights of the petitioner because that will amount to his dispossession. The Plaintiff-respondent contested the motion which came to be rejected on the ground that in a suit for recovery of money question of title cannot be gone into. 4. The trial Court after hearing arguments of learned counsel for the parties dismissed the application on the ground that plaintiff has filed a suit for recovery of money and in case application is allowed the character of the suit will be changed from suit for recovery of money to suit for determination of title, which is beyond the scope of the suit. It is further stated at the bar that the petitioner is ready to deposit the entire suit amount along with the interest in order to protect his possession. 5. The question which arises for consideration is as to whether the application for impleadment can be granted in a suit for recovery of money. It is further stated at the bar that the petitioner is ready to deposit the entire suit amount along with the interest in order to protect his possession. 5. The question which arises for consideration is as to whether the application for impleadment can be granted in a suit for recovery of money. Besides that, the issue involved is as to whether the money is to be recovered from the defendant-respondent No. 2. In case application is allowed, in such eventuality, the issue to be decided is as to whether the petitioner is in possession of the suit property and has title of the same. In that event, the dispute will be vis-a-vis the title, which is beyond the controversy raised in the suit. Thus, the trial Court has rightly dismissed the application. My view is fortified by the Apex Court judgement, reported in 2005 SAR (Civil) page 500. It is apposite to reproduce relevant paragraph of the judge­ment as under: "We have carefully considered sub-sections (a to (e) of Section 19 of the Act. From a careful examination of the aforesaid provisions of sub-sections (a) to (e) of the Specific Relief Act we are of the view that the persons seeking addition in the suit for specific performance of the contract for sale who were not claiming under the vendor but they were claiming adverse to the title of the vendor do not fall in any of the categories enumerated in sub sections (a) to (e) of Section 19 of the Specific Relief Act. ..This apart, there is another principle which cannot also be forgotten. The appellant, who has filed the instant suit for specific performance of the contract for sale is dominus litus and cannot be forced to add parties against who he does not want to fight unless it is composition of the rule of law, as already discussed above. For the reasons aforesaid, we are therefore, of the view that respondent Nos. 1 and 4 to 11 are neither necessary parties nor proper parties and therefore they are not entitled to be added as party-de­fendants in the pending suit for specific performance of the contract for sale." 6. This Court, in a case of which incidentally, I am the author (Reported in 2007 (2) JKJ HC-243: AIR 2007 J&K 48 ) has laid down the same principle of law. This Court, in a case of which incidentally, I am the author (Reported in 2007 (2) JKJ HC-243: AIR 2007 J&K 48 ) has laid down the same principle of law. It is apt to reproduce paragraph 7 of that judgement which reads as under: "No-doubt petitioners have pleaded that they are co-sharers and are in possession of the suit property. Whether they are co-sharers or in posses­sion of the property in dispute is a question of title which falls beyond the controversy raised in the suit and such a question cannot be decided in the suit in hand. However, if the suit is decreed after plaintiff succeeds and establishes all the ingredients which are pre-requisite for passing decree in a suit for specific performance of contract, then question is whether peti­tioners can be dispossessed. The answer to this question is in negative because, they can at that time resist the execution petition and also file a suit for cancellation of decree. It is profitable to reproduce relevant portion of para 14 of the judgment referred to hereinabove, hereunder:" 7. It is valuable to mention here that the petitioner has offered to deposit the entire suit amount is an important circumstance to be kept in view. While keeping in view the mandate of Order 1 Rule 10 of CPC, and in the given situation, I deem it proper to direct the Trial Court to decide the main suit as expeditiously as possible preferably within six months, which period shall begin from the date copy of this order is made available to the Trial Court, and to defer the determination of the application for appointment of Receiver/attachment. 8. With these observations, this Revision petition is dismissed. Interim direc­tion is vacated. Registry shall remit the record back forthwith. 9. It goes without saying that the petitioner is at liberty to seek the appropriate remedy from appropriate forum, if he so chooses. However, any observation made hereinabove shall not be construed as an expression of opinion on the merits of the controversy involved in the suit.