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2012 DIGILAW 1352 (GAU)

Uttam Kumar Saha v. Haradhan Saha

2012-12-19

S.C.DAS

body2012
JUDGMENT S.C. Das, J. 1. Respondent No. 1 as plaintiff instituted Title Suit No. 113 of 2010 in the Court of Civil Judge (Senior Division), Court No. 1, Agartala, West Tripura seeking declaration, perpetual injunction and recovery of possession etc. against respondent Nos. 2 and 3 (herein after mentioned as defendants). The suit is at a concluding stage hearing and now fixed for argument. On 21.04.2012, the present petitioner filed an application under Order 1 Rule 10(2) of CPC before the learned Civil Judge, Senior Division, praying for adding him as defendant No. 3 in the suit stating inter alia that the lands described in Schedule 3A and 3B of the plaint is an 'ejmali' common pathway, used by him and other successors of Lt. Rajmohan Saha and that he has an easementary right to have egress in ingress through that pathway. He had no knowledge of the suit, instituted by respondent No. 1, against the defendants and therefore, he could not file a petition for adding him as a party initially when the suit was instituted and since he has a right to use the pathway, he is a necessary party to the suit and so, he must be impleaded as a defendant. 2. The plaintiff seriously objected the contention of the petitioner inter alia stating that the plaintiff instituted the suit for a definite cause of action against the defendants seeking certain definite relief/decree and that the petitioner is a stranger and has got no cause of action for impleading him as a defendant in the suit. The learned Civil Judge (Senior Division) by impugned order, dated 22.5.2012, rejected the prayer of the petitioner and accordingly, dismissed the petition. Having aggrieved with the order, passed by learned Civil Judge (Senior Division), Court No. 1, Agartala, West Tripura, the petitioner filed the present petition under Article 227 of the Constitution seeking setting aside and quashing order, dated 22.05.2012, passed by the Court below and also seeking direction to incorporate him as defendant in the suit. 3. Heard learned counsel, Mr. D.R. Choudhury for the petitioner and learned senior counsel, Mr. K.N. Bhattacharjee for the respondent No. 1 (plaintiff) and learned senior counsel, Mr. S.M. Chakraborty for the respondent Nos. 2 and 3 (defendants). 4. 3. Heard learned counsel, Mr. D.R. Choudhury for the petitioner and learned senior counsel, Mr. K.N. Bhattacharjee for the respondent No. 1 (plaintiff) and learned senior counsel, Mr. S.M. Chakraborty for the respondent Nos. 2 and 3 (defendants). 4. The short questions involved in this petition are: (i) Whether the petitioner is a necessary or proper party in the suit and whether the suit cannot be effectively decided in his absence? (ii) Whether this court should interfere in the order, passed by the Court below, exercising its power under Article 227 of the Constitution? 5. Admittedly, the plaintiff instituted the suit seeking declaration and permanent injunction restraining the defendants from entering into the possession of the plaintiff's lands, as described in the schedule 3A and 3B of the plaint and also prayed for recovery of possession of the land described in schedule 3C of the plaint. It is inter alia stated by the plaintiff that the land described in Schedule 3B of the plaint is his Jote land and that the land described in Schedule 3A of the plaint also belonged to him which the plaintiff under an agreement permitted his vendees namely, one Purnima Choudhury and Sikha Saha for using the same as a pathway. Neither in the pleadings of the plaintiff nor in the pleadings of the defendants' involvement of the petitioner is transpired, in any manner, for impleading him as a necessary or proper party in the suit. 6. Learned counsel, Mr. D.R. Choudhury for the petitioner, has made a lengthy submission stating that the petitioner, the plaintiff and the defendant No. 1 are full-blood-brothers and that the suit land along with other lands were purchased by their father, Lt. Rajmohan Saha and that the father by executing several gift deeds distributed the land amongst the petitioner, the plaintiff and the defendant No. 1 and their other brothers and they have been possessing their respective lands. The suit land is an 'ejmali' pathway left by their deceased father which is used by all the brothers for their egress and ingress. Rajmohan Saha and that the father by executing several gift deeds distributed the land amongst the petitioner, the plaintiff and the defendant No. 1 and their other brothers and they have been possessing their respective lands. The suit land is an 'ejmali' pathway left by their deceased father which is used by all the brothers for their egress and ingress. The plaintiff instituted the suit with a view to construct a boundary wall to occupy the pathway and if the suit is decreed in favour of the plaint, he will raise boundary wall covering the pathway, mentioned in schedule 3B of the plaint and that in that event the only passage used by the petitioner, as common pathway, will be closed and so, the petitioner is a necessary party and he must be impleaded as a defendant in the suit for an effective decision of the Court on the issues framed in the suit. 7. Per contra, learned senior counsel, Mr. Bhattacharjee has submitted that the petitioner is a stranger in the subject matter of the suit. The plaintiff instituted the suit with a definite cause of action against the defendants and the plaintiff nowhere sought any relief against any other persons including the petitioner. The petitioner only to cause delay in disposal of the suit has arrived with a petition seeking his inclusion, as party, in the suit having no cause of action for his such impleadment. Learned counsel further submitted that the petitioner has no scrap of paper to show that the suit land is an 'ejmali' pathway or that he has a right to use it as a pathway. The petitioner only claimed his easementary right for which the remedy is open to the petitioner, if he has any cause of action, according to law and that he is neither a necessary party nor a proper party in the suit instituted by the plaintiff. 8. Learned senior counsel, Mr. Chakraborty, has submitted that plaintiff-respondent No. 1 and the defendants are all full-blood brothers and since the petitioner, being a brother, claiming that he has an easementary right to use the suit land, as pathway, he may be impleaded as a defendant in the suit and there is no legal bar in such impleadment. 9. 8. Learned senior counsel, Mr. Chakraborty, has submitted that plaintiff-respondent No. 1 and the defendants are all full-blood brothers and since the petitioner, being a brother, claiming that he has an easementary right to use the suit land, as pathway, he may be impleaded as a defendant in the suit and there is no legal bar in such impleadment. 9. Order 1 Rule 10(2) of CPC prescribes thus: (2) Court may strike out or add parties - The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. In view of the above provision the Court may at any stage of the proceedings, either strike out or add parties for just and proper decision of the suit. It is necessary for the Court to take a decision as to whether the petitioner is a necessary or proper party for his impleadment as a defendant in the suit. Order 1 Rule 3 prescribes who may be joined as defendants. The provision reads as fellows: 3. Who may be joined as defendants - All persons may be joined in one suit as defendants where- (a) Any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and (b) If separate suits were brought against such persons, any common question of law or fact would arise. Admittedly, the plaintiff instituted the suit seeking declaration, perpetual injunction and recovery of possession of the land described in Schedule 3C against the defendants. Involvement of the petitioner in the subject matter of the suit, instituted by the plaintiff against the defendants, has in no way transpired in the pleadings of the parties to the suit. Admittedly, the plaintiff instituted the suit seeking declaration, perpetual injunction and recovery of possession of the land described in Schedule 3C against the defendants. Involvement of the petitioner in the subject matter of the suit, instituted by the plaintiff against the defendants, has in no way transpired in the pleadings of the parties to the suit. The plaintiff claimed that the suit land belonged to him and that the defendants illegally made a construction which is described in Schedule 3C of the suit land and the plaintiff prayed for recovery of possession from the defendants of that piece of land. Plaintiff also alleged that the defendants disturbing the possession of the plaintiff and trying to encroach upon the schedule 3B land and therefore, he prayed for declaration and permanent injunction against the defendants. There is nothing in the pleadings of the parties to the suit that the petitioner is either a necessary party or a proper party and that in his absence the issues involved in the suit cannot be effectively decided. 10. The petitioner claimed that he has been using the suit land as an 'ejmali' establish since long and that he has got an easementary right. To establish an easementary right of the petitioner he has to approach the appropriate Court of law with a definite cause of action if his such right is in any way infringed. By way of impleading himself, as defendant, the petitioner cannot avail a decree in his favour. Admittedly, the petitioner and plaintiff as well as the defendants residing in the close vicinity and they are full-blood-brothers. If the petitioner is apprehending, in any manner, that his right is affected or likely to be affected he would approach the Court of law when the suit was instituted in the year 2010. When the suit is at a concluding stage of decision, he appeared with an application for adding him as a defendant in the suit, whereas in support of his contention no document is placed by him to show that suit land is a common 'ejmali' pathway belonged to all brothers. I find nothing wrong in the order passed by the Court below. Learned Civil Judge (Senior Division) has rightly arrived at a conclusion that the petitioner is neither a necessary party nor a proper party for impleading him as a defendant in the suit. 11. Learned counsel, Mr. I find nothing wrong in the order passed by the Court below. Learned Civil Judge (Senior Division) has rightly arrived at a conclusion that the petitioner is neither a necessary party nor a proper party for impleading him as a defendant in the suit. 11. Learned counsel, Mr. Choudhury, has contended that the petitioner prima facie placed before the Court a fact that he has right to use the pathway and if a decree is passed in favour of the plaintiff his right may be affected and therefore, he is a proper party. In support of his contention learned counsel referred the case of Amit Kumar Shaw & Anr. Vs. Farida Khatoon & Anr. reported in (2005) 11 SCC 403 and the case of Savitri Devi Vs. District Judge, Gorakhpur & Ors. reported in AIR 1999 SC 976 . On going through both the cases, referred by learned counsel, Mr. Choudhury, I am of the considered opinion that the factual aspects of those cases are distinctly distinguishable from that the facts of the petitioner's case and the ratio of those decisions can in no way be applied in the present case at hand. In Amit Kumar Shaw (supra) the property originally belonged to one Mr. Khetra Mohan Das who subsequently transferred it to Birendra Nath Dey and Kalyani Dey. Troubles cropped up between the original owners and a suit was filed. Another Fakir Mohammad claimed to have right, title and interest in respect of the property in question by way of adverse possession. During pendency of the litigation Birendra Nath Dey and Kalyani Dey transferred the suit land to the appellants, who thereafter, intended to be impleaded in the suit which was rejected and subsequently, the Supreme Court allowing their petition has held that either under Order 22 Rule 10 or Order 1 Rule 10 of CPC the impleadment of those appellants were necessary for proper decision of the suit. It was decided on the doctrine of lis pendens. Whereas, in the present suit the petitioner is completely a stranger and can in no way be treated as proper or necessary party and so, the ratio of that decision cannot be applied in the facts and circumstances of the present case. The case of Sabitri Devi (supra) also stands on same principle. Whereas, in the present suit the petitioner is completely a stranger and can in no way be treated as proper or necessary party and so, the ratio of that decision cannot be applied in the facts and circumstances of the present case. The case of Sabitri Devi (supra) also stands on same principle. In that reported case the appellant instituted the suit against her sons for decree for maintenance and creation of charge over ancestral properties in respect of which an injunction order was passed by the Court restraining alienation, whereas violating the order the property was sold by one of the respondents and in that circumstances of the case the Apex Court directed impleadment of the purchasers as necessary party under Order 1 Rule 10 of CPC. The factual situation of that case is quite distinguishable from the facts of the case at hand and hence the ratio of that decision cannot be applied in the present case. 12. Learned senior counsel, Mr. Bhattacharjee has contended that impleadment of the petitioner, as a respondent, at this stage of the suit, where it is waiting for final disposal will amount to denovo trial which is not encouraged by the law of the land. In support of his contention learned senior counsel relied on the decision of the Apex Court in Anokhe Lal Vs. Radhamohan Bansal & Ors. ( AIR 1997 SC 257 ). In para 5 of the judgment this Court held thus: 5. As no suit was pending either in the trial Court or in the appellate Court when the High Court took up the revision of the first respondent for argument what was the need or occasion to pass an order for impleading a person as a new party in the suit? The revision should only have been dismissed as infructuous. Even otherwise, the Court should have been very circumspect in dealing with the application of a third party seeking leave to become party in the suit, when the plaintiff, who is the dominus litis of the suit, is opposed to it. If the consequence of such addition would involve a de novo trial, the Court should normally have disallowed the application. If the consequence of such addition would involve a de novo trial, the Court should normally have disallowed the application. Way back in 1931 the Privy Council did not allow the application for impleadment on the ground that such a course might throw open a de novo trial of the suit, even after noticing that the party sought to be impleaded was not merely a proper party but a necessary party in the suit. (Naba Kumar Hazra V. Radhashyam Mahish, AIR 1931 PC 229). Here, even the first respondent has no case that he is a necessary party to the suit. In the above reported case the appellant-landlord filed a suit of eviction against the partnership firm and the written statement was filed by one of its partner. During pendency of the suit, one of the partners of the firm died and his son filed an application under Order 1 Rule 10(2) of CPC for impleading him as an additional defendant in the suit and that application was dismissed by the trial Court against which a revision was filed but that was also dismissed. The respondent thereafter filed a second application under order 30 Rule 4 of CPC which was dismissed by the trial Court but on an application filed before the High Court under Article 227 of the Constitution the prayer was allowed. During pendency of that petition before the High Court under Article 227 of the Constitution the suit was decreed by the trial court and decree was confirmed by the district Court in appeal. In the circumstances, the Supreme Court made the above observation discouraging such impleadment of parties. In the present case, where the plaintiff instituted the suit against the defendants seeking definite and specific relief, the petitioner, as a stranger, cannot claim to be a party, as defendant and to have a denovo trial of the case after such impleadment. The claim of the petitioner, therefore, has been rightly rejected by the trial Court. 13. Learned senior counsel, Mr. Bhattacharjee further contended that the trial court passed a reasoned order on the application filed by the petitioner. There is no error of law or want of jurisdiction and hence this Court need not interfere in the order invoking special power under Article 227 of the Constitution. Mr. 13. Learned senior counsel, Mr. Bhattacharjee further contended that the trial court passed a reasoned order on the application filed by the petitioner. There is no error of law or want of jurisdiction and hence this Court need not interfere in the order invoking special power under Article 227 of the Constitution. Mr. Bhattacharjee has also submitted that this Court shall exercise its power, vested under Article 226 or 227 of the Constitution, in an exceptional case to ensure justice according to law but it should restrain itself from exercising the special power where the Court of competent jurisdiction passed an order within the purview of law and there is no apparent error in the order. This Court should not interfere in such an order exercising its power under Article 227 of the Constitution. Learned counsel, Mr. Bhattacharjee in support of his contention referred the case of Surja Dev Rai Vs. Ram Chander Rai & Ors. reported in (2003) 6 SCC 675 wherein the Apex Court has observed certain guidelines in respect of exercise of power under Article 227 of the Constitution. In Para 26 the Apex Court held thus: 26. In order to safeguard against a mere appellate or revisional jurisdiction being exercised in the grab of exercise of supervisory jurisdiction under Article 227 of the Constitution, the courts have devised self-imposed to rules of discipline on their power. Supervisory jurisdiction may be refused to be exercised when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved. The High Court may have regard to legislative policy formulated on experience and expressed by enactments where the legislature in exercise of its wisdom has deliberately chosen certain orders and proceedings to be kept away from exercise of appellate and revisional jurisdiction in the hope of accelerating the conclusion of the proceedings and avoiding delay and procrastination which is occasioned by subjecting every order at every stage of proceedings to judicial review by way of appeal or revision. So long as an error is capable of being corrected by a superior court in exercise of appellate or revisional jurisdiction, though available to be exercised only at the conclusion of the proceedings, it would be sound exercise of appellate or revisional jurisdiction, though available to be exercised only at the conclusion of the proceedings, it would be sound exercise of discretion on the part of the High Court to refuse to exercise the power of superintendence during the pendency of the proceedings. However, there may be cases where but for invoking the supervisory jurisdiction, the jurisdictional error committed by the inferior court or tribunal would be incapable of being remedied once the proceedings have concluded. Admittedly, the present application is filed under Article 227 of the Constitution. For having such a petition maintainable, the petitioner is to show that the order suffers from want of jurisdiction, errors of law or it suffers from perverse finding or that principle of natural justice had been violated. 14. In the present case at hand, it is evident that suit arose between the brothers living in the same vicinity. The petitioner is also living in the same vicinity. The plaintiff alleged nothing against the petitioner and no relief claimed against him. The petitioner apprehending that his easementary right, as claimed by him, might be affected if the suit is decreed against the petitioner, prays for impleading him as party which has been rejected by the trial Court assigning sound reasons and under that circumstances, while the order does not suffer from want of jurisdiction or error of law, I find nothing to interfere in the order invoking the special power vested on this Court under Article 227 of the Constitution. The trial Court passed the order, after hearing both side and there is no perversity in the finding. The ratio of the above decisions therefore, in the given facts and circumstance of the case, in my considered opinion, is applicable and this Court is bound to follow the observations. 15. The petitioner is a stranger to the suit, instituted by plaintiff and he has no cause of action for praying before the Court for his impleadment as a party to the suit as defendant. He could not make out a case that he is either a necessary party or a proper party or that the suit cannot be effectively decided in his absence. He could not make out a case that he is either a necessary party or a proper party or that the suit cannot be effectively decided in his absence. If the petitioner has any apprehension about his right, he has the remedy open to approach the appropriate Court according to law. The trial Court has rightly rejected the prayer of the petitioner and the order does not deserve interference. The petition, therefore, stands dismissed and in the circumstances without cost. Send back the LC records along with a copy of this judgment.