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2012 DIGILAW 324 (UTT)

Atiqur Rehman v. Beena Duggal

2012-06-25

V.K.BIST

body2012
JUDGMENT : Present petition has been filed by the petitioners for quashing the impugned orders dated 06.10.2006 and 22.10.2011 (annexed as Annexure nos.8 & 9 to the writ petition), whereby the application of respondent no.1 for impleadment was allowed. 2. After issuance of notice, Shri Gopal K. Verma, Advocate appeared for the respondent no.1. He made statement that he does not propose to file counter affidavit and requested that petition be heard in absence of counter affidavit. With the consent of learned counsel for the parties, the petition is heard at admission stage itself. 3. Brief facts of the case, as narrated in the writ petition, are that the mother of the petitioners, Smt. Jamila Begum, instituted Suit No.562 of 1999, “Smt. Jamila Begum Vs. Smt. Jamila Khatoon” in the Court of Civil Judge (S.D.), Dehradun, against the respondent no.2 for prohibitory injunction and declaration, on the ground that the respondent no.2 made an oral declaration of Gift (Hiba) in favour of plaintiff. It was alleged that on the basis of oral declaration of Gift, the plaintiff filed application before the Municipal Board, Dehradun for mutation of her name. The defendant also filed an application before the Municipal Board, Dehradun alongwith an affidavit that she had gifted the property to the plaintiff and the name of the plaintiff may be mutated in the Municipal Record. Thereafter, the name of the plaintiff, Smt. Jamila Begum, was recorded in the record of Municipal Board. The respondent no.2 filed her written statement, denying the averments made in the plaint. On 13.08.2011, the learned trial Court framed the issues, but the case was adjourned at the behest of defendant. Thereafter, the respondent no.1 moved an application No.105C to implead her as defendant in the suit, on the ground that there is an agreement to sale dated 07.04.1988 made between Smt. Jamila Khatoon (defendant/ respondent no.2) and respondent no.1 regarding property in dispute. In her application, the respondent no.1 submitted that out of the total consideration of Rs. 50,000/-, she gave Rs. 3,000/- at that time. It was further contended that she had also paid Rs. 90,000/- to the defendant/respondent no.2 and she has an apprehension that the collusive suit has been filed for misappropriation of money, which was paid by her to defendant/respondent no.2. 50,000/-, she gave Rs. 3,000/- at that time. It was further contended that she had also paid Rs. 90,000/- to the defendant/respondent no.2 and she has an apprehension that the collusive suit has been filed for misappropriation of money, which was paid by her to defendant/respondent no.2. The plaintiff filed her objections against the impleadment application stating therein that an agreement to sale does not create any right and third party has no right and title over the property in dispute. She contended that the third party is neither necessary nor proper party, therefore, she cannot be impleaded as respondent in the suit. The defendant/ respondent no.2 filed her objections against the impleadment application and denied the fact of alleged agreement dated 07.04.1988. On 06.10.2006, the learned trial Court allowed the impleadment application. Feeling aggrieved by the order-dated 06.10.2006, the plaintiff Jamila Begum preferred Civil Revision no.97 of 2006 “Smt. Jamila Begum Vs. Smt. Beena Duggal and another”. On 22.10.2011, the learned Revisional Court dismissed the revision filed by the plaintiff. Hence, this writ petition has been filed. 4. Learned counsel for the petitioners submitted that during the pendency of the revision, the plaintiff, Smt. Jamila Begum, died and the petitioners, who are the legal heirs/legal representatives of Smt. Jamila Begum, were impleaded as revisionists in the revision. He contended that both the Courts below did not consider the important legal position that an impleadment application can only be decided on the touchstone of the Order 1 Rule 10 of Code of Civil Procedure and not otherwise. He argued that in the present case, without considering the provision of Order 1 Rule 10 of C.P.C., the impleadment application has been allowed. Learned counsel for the petitioners submitted that a party can be impleaded in a suit, if the party is necessary and proper party, for determining the real controversy and the suit cannot be adjudicated in absence of third party. In support of this submission, learned counsel for the petitioners relied upon the judgment reported in (2004) 8 Supreme Court Cases 706 “Balvant N. Viswamitra and others Vs. Yadav Sadashiv Mule (Dead) through LRS. and others”. He submitted that without considering the settled preposition of law, the learned trial Court committed manifest error of law in allowing the impleadment application on surmises and conjectures. Yadav Sadashiv Mule (Dead) through LRS. and others”. He submitted that without considering the settled preposition of law, the learned trial Court committed manifest error of law in allowing the impleadment application on surmises and conjectures. He argued that the respondent no.1 is neither proper nor necessary party, therefore, she has illegally been impleaded as defendant in the suit and submitted that the impugned orders are manifestly erroneous and are liable to be quashed. He also cited cases reported in AIR 1997 P& H 40 and AIR 1989 P& H 185. 5. On the other hand, Shri Gopal K. Verma, learned counsel for the respondent no.1 submitted that suit is collusive suit without impleading respondent no.1 a party. He further submitted that since the respondent no.1 entered into registered agreement with respondent no.2 on 07.04.1988 regarding property in question and since her valuable interest is involved in the property, she has rightly been impleaded as party. He further submitted that in case property is transferred in the name of petitioners, the respondent no.1 will not be in a position to recover her money from the property in question. 6. I have considered the arguments advanced by the learned counsel for the parties and have perused the papers annexed with the writ petition. 7. Order 1 Rule 10 of C.P.C. provides that 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 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. The Hon’ble Supreme Court in the matter of Udit Narain Singh Malpaharia Vs. Addl. Member, Board of Revenue, Bihar 1963 (Supp) 1 SCR 676 has held as under: “The law on the subject is well settled: it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.” Respondent no.1 has not filed counter affidavit. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.” Respondent no.1 has not filed counter affidavit. Much emphasis has been given by the counsel of respondent no.1 on the agreement-dated 07.08.1988. Copy of the agreement-dated 07.08.1988 has been filed alongwith the writ petition. Incomplete copy of mortgage deed dated 18.04.1990 has also been filed. However, at the time of hearing, complete copy of mortgage deed alongwith typed copy has been supplied by the counsel for the petitioners. I have perused the agreement to sale dated 07.08.1988 and mortgage deed dated 18.04.1990. By agreement to sale dated 07.08.1988, Smt. Jamila Khatoon (respondent no.2) agreed to sell her house with land to respondent no.1 for a consideration of Rs. 15,000/- and also took advance of Rs. 3,000/-. This agreement does not speak anything about the period under which sale deed was to be executed. By mortgage deed dated 18.04.1990, respondent no.2 took Rs. 15,000/- from respondent no.1 and mortgaged the property for a period of two years. In clause 4 of the mortgage deed, it was mentioned that in case amount of Rs. 15,000/- is not returned in two years, the respondent no.1 will have right to recover the same from the property in question. Thus, it appears that after execution of mortgage deed dated 18.04.1990, earlier agreement has no relevance. It is also not clear from mortgage deed that property was mortgaged with possession. The respondent no.1 slept over the matter for about 20 years and woke up only when she came to know about the present suit. For violation of agreement dated 07.08.1988 or mortgage deed dated 18.04.1990, she did not avail any remedy for a period of twenty years. It cannot be said that respondent no.1 has valid right over the property in question unless she gets such relief from the competent court for violation of agreement dated 07.08.1988 or deed dated 18.04.1990. 8. It is settled law that impleadment of a person cannot be allowed unless such person is a proper and necessary party or if the issue involved in the suit cannot be properly decided without impleading him. 8. It is settled law that impleadment of a person cannot be allowed unless such person is a proper and necessary party or if the issue involved in the suit cannot be properly decided without impleading him. In the present case, simply because of mortgage deed dated 18.04.1990, it cannot be said that respondent no.1 is proper and necessary party in the suit. It also cannot be said that controversy in issue of the suit cannot be properly decided without impleading respondent no.1. 9. In view of above discussion, writ petition deserves to be allowed. Same is allowed. Orders dated 06.10.2006 and 22.10.2011 are quashed. Application of respondent no.2 for impleadment stands rejected. 10. No order as to costs.