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2012 DIGILAW 839 (CAL)

Ashyana Construction v. Md. Omar

2012-09-06

SOUMEN SEN

body2012
JUDGMENT 1. The present revisional application is arising out of an order passed by the learned trial Judge in rejecting the application filed under Order 1 Rule 10(ii) of the Code of Civil Procedure in connection with an application filed under Order 21 Rule 99 read with Rule 101 of the Code of Civil Procedure. The petitioner claims to have entered into an agreement of tenancy with the Imambara & Trust Estate on 7th September, 1986 and since then the said petitioner-applicant is in possession of the entire suit premises through their respective leave and licence holders upon payment of regular rents to the landlord namely the trust estate of late Aga Karbalai Mahammad. In or about 3rd February, 2012 it is alleged that Md. Omar the applicant in misc. case attempted to enter the suit premises and demanded possession of one of the shop rooms on the basis of some court order which recognised his right as a tenant in respect of the shop room in the said premises. The applicant-petitioner became apprehensive and thereafter made an enquiry wherefrom the petitioner became aware of the misc. case being initiated by Md. Omar against the Imambara estate under Order 2 Rule 99 and 101 of the Code of Civil Procedure. The petitioner states that such information were derived on the basis of the inspection of the court record. The petitioner submits that the claim of Md. Omar in the Misc. case that he was a sub tenant under the defendants is illegal. Moreover, Md. Omar taking advantage of some rent receipts illegally obtained, filed the said proceeding being Misc. case no. 352 of 2001 in order to take possession of the suit premises and in the event such things happened it would amount to dispossession of the applicant-petitioner in respect of one room of the suit premises. On such facts it was contended that in deciding the said misc. case the presence of the proposed applicant is necessary. 2. The learned trial Judge after considering the rival contentions observed that the petitioner was neither a party to the impugned suit nor has been dispossessed from the suit premises by the decree holder. He is also not a party to the execution proceeding. On such facts the said application was dismissed. 3. Mr. 2. The learned trial Judge after considering the rival contentions observed that the petitioner was neither a party to the impugned suit nor has been dispossessed from the suit premises by the decree holder. He is also not a party to the execution proceeding. On such facts the said application was dismissed. 3. Mr. Aniruddha Chatterjee, learned counsel appearing for the petitioner in assailing the said judgment submitted that in the said misc. case Md. Omar claimed declaration of tenancy and in the event such declaration is allowed the same is going to affect the right of the proposed applicant. In this regard he relied upon a decision in the case of Razia Begum vs. Sahebzadi Anwar Begum & Ors. reported in AIR 1958 Supreme Court 886 and in the case of Savitri Devi vs. District Judge reported in (1999) 2 Supreme Court Cases 577. 4. Per contra, it is submitted by the learned counsel appearing for the opposite parties that in deciding the issues the presence of the proposed applicant is not at all required. It is submitted that the said proposed applicant is neither a necessary party nor a proper party. In making reference to Order 21 Rule 99 of the Code of Civil Procedure, it is contended that since Md. Omar was not the person other than the judgment debtor the said applicant approached the Court under Order 21 Rule 99 of the Code of Civil Procedure. It is the contention of the said applicant that all the rents were tendered to the landlord but the said landlord obtained a collusive decree and on the basis of the said collusive decree ousted the applicant from the suit premises through the Court bailiff. It is the case of the said applicant that he has been lawfully inducted as a subtenant and in the event the Imambara estate has accepted the rent from Omar directly the said decree for eviction against the tenant is not enforceable as against Md. Omar since his induction as a tenant has already been recognised by acceptance of rents by Imambara estate. It is submitted that since he has been dispossessed from the property illegally by the decree holder, he has asked for possession of such property by exercising his right under Order 21, Rule 99 and Rule 101 of the Code of Civil Procedure. It is submitted that since he has been dispossessed from the property illegally by the decree holder, he has asked for possession of such property by exercising his right under Order 21, Rule 99 and Rule 101 of the Code of Civil Procedure. It is submitted that in deciding the issues involved in the said application, the presence of the proposed applicant in whose favour it is alleged the tenancy has been created is not required. In fact having regard to the scope of Section 21 Rule 99 of the Code of Civil Procedure the applicant cannot claim any right for addition in such proceeding. It is contended that the addition of the proposed applicant would unnecessarily enlarge the scope of trial and in any event the issues that are sought to be raised by the proposed applicant is not at all required to be gone into or considered in deciding the application filed by Md. Omar. In this regard he relied upon a decision in the case of Narayan Chandra Garai and Others vs. Matri Bhandar Pvt. Ltd and Anr. reported in AIR 1974 Calcutta 358 and in the case of Niyamat Ali Molla vs. Sonargon Housing Cooperative Ltd. reported in AIR 2008 Supreme Court 225 . 5. The question of addition of parties under Order 1 Rule 10 of the Code of Civil Procedure is generally not one of initial jurisdiction of the Court, but of judicial discretion which has to be exercised in view of the facts and circumstances of a particular case. In a suit relating to property in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest in the subject-matter of the litigation. Where the subject-matter of the litigation, is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the Court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy. Where the subject-matter of the litigation, is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the Court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy. In Razia Begum (supra) the rule was relaxed since a declaratory decree on the question of status, such as in controversy in the said case, affects not only the parties actually before the Court but generations to come, and in view of that consideration, the rule of present interest, as evolved by case law relating to disputes about property does not apply with full force. The rule laid down in Section 43 of the Specific Relief Act is not exactly a rule of res judicata. It is narrower in one sense and wider in another. Applying such propositions and having arrived at a conclusion that the Courts below did not exceed their power in directing the respondent Nos.1 and 2 as parties defendants in the action nor could it be said that such exercise of discretion was not sound the Hon’ble Supreme Court refused to interfere with the said order of the Courts below having not found it to be a fit case for interference by special leave. 6. The primary object of Order 1 Rule 10(2) of the Code of Civil Procedure is to bring before the Court at one and the same time of the persons interested in the dispute so that all the controversies in the suit may be finally determined once and for all in the presence of the parties without delay, inconvenience and expenses of several actions, trials and inconclusive adjudication. Notwithstanding the fact that the said provision confers wide discretion but such discretion has to be exercised judicially and on sound legal principle. Notwithstanding the fact that the said provision confers wide discretion but such discretion has to be exercised judicially and on sound legal principle. In Anil Kumar v. Shivnath reported in 1995 (3) SCC 147 , considering the provisions of Order 1 Rule 10(2), the Supreme Court observed that “though the court may have power to strike out the name of a party improperly joined or add a party either on application or without application of either party, the condition precedent is that the court must be satisfied that the presence of such party would be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit….. The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject-matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid multiplicity of proceedings.” 7. The said power can be exercised on either of the two grounds:- (a) Such person ought to have been joined, either as a plaintiff or as a defendant, but is not so joined; or (b) Without his presence, the question involved in the suit cannot be decided finally and effectively. 8. In Razia Begum v. Anwar Begum (supra), the Supreme Court noted “two currents of judicial opinion”, one taking what may be called the narrower view, and the other, the wider view. Then referring to several English and Indian decisions on the point, the majority observed:- “It is no use multiplying references bearing on the construction of the relevant rule of the Code relating to addition of parties. Each case has to be determined on its own facts, and it has to be recognized that no decided cases have been brought to our notice, which can be said to be on all fours with the facts and circumstances of the present case. There cannot be the least doubt that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit, he should have a direct interest in the subject-matter of the litigation whether it raises questions relating to movable or immovable property.” 9. There cannot be the least doubt that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit, he should have a direct interest in the subject-matter of the litigation whether it raises questions relating to movable or immovable property.” 9. Under sub-rule (2) of Rule 10,only two classes of persons may be added as parties to a suit: (I) necessary party, i.e. a person who ought to have been joined as a party and in whose absence no decree or order can be passed; or (ii) proper party, i.e. a person, whose presence is necessary for complete and effectual adjudication of the questions involved in the suit. If a person is neither a necessary nor a proper party, he cannot be impleaded in a suit. 10. A person cannot be impleaded merely because he would be incidentally affected by the judgment, or is interested in the fruits of the litigation, or his presence may enable the court to come to a correct solution of the dispute before the court. What is to be seen in allowing or disallowing an application for addition of a party is whether such addition would be consistent with the scope of the inquiry necessitated in the pending suit and in the absence of such a party it would not be possible to completely and effectively adjudicate the controversy raised before the court. The main object of the rule is not to prevent multiplicity of actions or avoid fresh litigation, but to consider whether the person is directly or legally in the action. 11. The said decision in Razia Begum was considered in H.M. Kassim Vs. South Indian Bank reported in AIR 1991 Kerala 221. In the said decision it was held that the petitioners have no claim that they are necessary parties to the suit. They seek to come on record only as proper parties. A person may be impleaded as a defendant in a suit, though no relief may be claimed against him, if his presence is necessary for a complete and final adjudication of the questions involved in the suit. It is well established that questions involved in the suit are those which arise between the parties to the suit. (Vaithilinga v. Sadasiva AIR 1926 Mad. It is well established that questions involved in the suit are those which arise between the parties to the suit. (Vaithilinga v. Sadasiva AIR 1926 Mad. 836 , Somiah v. Amina Begum, AIR 1976 AP 182 , among others). Only a person, who has a direct interest in the subject matter of the litigation, whether it raises questions relating to moveable or immoveable property, can however be impleaded as a party. 12. The Court would also not permit the addition of party where it would result in introducing a new cause of action with which the plaintiff has nothing to do. The Court would also not permit addition of a party which would alter the nature and character of a suit. Thus, a simple suit for arrears of rent cannot, by granting application to implead a party, be converted into a suit for title, even if the question of title may have to be incidentally investigated in a suit for recovery of rent. (Bhagirathmall v. Ramricklal, AIR 1977 Cal 346 ). 13. The Court would also decline addition if it appears that the addition of a new party would necessitate the commencement of the proceeding de novo. 14. In Ratnesh Hirachand Kundanmal (supra) the Hon'ble Supreme Court refused to give undue importance of prevent to multiplicity of proceeding as a consideration for allowing an application for addition of party. The Hon'ble Supreme Court in para 14 consider this aspect of the matter, which is as follows: "14. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objective. The person to be joined must be one whose presence is necessary, as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct, solution of some question involved and has thought of relevant arguments to advance. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct, solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered in Amon vs. Raphael Tuck & Sons Ltd., wherein after quoting the observations of wynn-Parry, J. in Dollfus Mieg et Compagnie SA vs. Bank of England, that their true test lines not so much in an analysis of what are the constituents of the applicants' right, but rather in what would be the result on the subject matter of the action if those rights could be established, Devin, J. has stated : "The test is 'May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights'."" 15. In Antony Devaraj v. Aralvaimozhi (Kurusadi) Devasahayam Mount Oor and Thuya Viagula, Annai Church rep by the Trustee, reported in 2004(2) C.T.C. 183 the Madras High Court considered the right of a third party to claim addition of party. It was held as follows:- “(iii). The person to be added as one of the parties must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to given on some of the questions involved, but it should make him as necessary witness. (iv). It was held as follows:- “(iii). The person to be added as one of the parties must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to given on some of the questions involved, but it should make him as necessary witness. (iv). The third party cannot be considered to be a necessary party for deciding the main issue framed in the suit. Mere ground that inclusion of the proposed third party would not alter the structure of the suit may not entitle the party to ask the Court to implead the third party as a defendant. (v). The Court may upon an application or suo motu, in a fit and proper case, implead a new party as defendant, even against the plaintiff’s consent under certain circumstances. The discretion vested with the Court though wide is however circumscribed by the limitations which are built in the provisions contained in Order 1 Rule 10(2), C.P.C. Where a person is neither necessary nor proper party, the Court has no jurisdiction to add him as a party. If the question at issue between the parties can be worked out without anyone else being brought in, the stranger should not be added as a party. (vii) A person is not to be added as a defendant merely because he or she would be incidentally affected by the judgment. The main consideration is whether or not the presence of such a person is necessary to enable the Court to effectually and completely adjudicate upon and settle the questions involved in the suit. (viii) Persons whose interest would be affected by the litigation are entitled to come on record to protect their interest when those are jeopardized by the persons already on record.” 16. The said rule provides for addition of proper or necessary parties and the striking out of improper and unnecessary parties. Addition of parties should not be made merely to avoid multiplicity of suits if their presence is not necessary for determining the real questions ILR 1946 (1) Cal 656 (Gosto Vs. Sur’s Estate Ltd). 17. The said rule provides for addition of proper or necessary parties and the striking out of improper and unnecessary parties. Addition of parties should not be made merely to avoid multiplicity of suits if their presence is not necessary for determining the real questions ILR 1946 (1) Cal 656 (Gosto Vs. Sur’s Estate Ltd). 17. The Hontile Supreme Court in Mumbai International Airport Pvt. Ltd. vs. Regency Convention Centre & Hotels Pvt. Ltd. & Ors., reported in 2010(7) SCC 417 considering a plea as to whether the appellant is a necessary or proper party to a suit for specific performance held: "13. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, my choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But his general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure ("the Code", for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below: "10.(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." 14. The said provision makes it clear that a Court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the Court may be necessary in order to enable the Court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the Court is given the discretion to add as a party, any person who is found to be a necessary party or proper party. 15. A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. A "proper party" is a party who, though not a necessary party, is a person whose presence would enable the Court to completely, effectively and adequately, adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the Court has no jurisdiction to implead him, against the wishes of the plaintiff, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance. 23. This Court in Ramji Dayawala & Sons (P) Ltd. vs. Invest Import reiterated in SCC p.96, para 20 classic definition of "discretion" by Lord Mansfield in R. vs. Wilkes (ER p.334) that "discretion" "when applied to a Court of justice, means sound discretion guided by law. It must be governed by rule, not by humour: it must not be arbitrary, vague, and fanciful; but legal and regular." 24. We may now give some illustrations regarding exercise of discretion under the said sub-rule." 18. The decisions in Ramesh Harichand (supra) and Anil Kumar (supra) were also considered in the said judgment. 19. It must be governed by rule, not by humour: it must not be arbitrary, vague, and fanciful; but legal and regular." 24. We may now give some illustrations regarding exercise of discretion under the said sub-rule." 18. The decisions in Ramesh Harichand (supra) and Anil Kumar (supra) were also considered in the said judgment. 19. In Niyamat Ali Molla (supra) the Hon’ble Supreme Court was considering an application for correction of the decree and in the said proceeding the application was filed for addition of party on the ground that in the event the said decree is corrected, the same could be enforced against the appellant and accordingly in considering the said application the presence of such applicant is required. In that context, the Hon’ble Supreme Court made the following observations in paragraph ‘27’ which is reproduced below : 27. So far as the application for impleadment of the applicants are concerned, they being not parties to the suit are not bound by the decree. They would thus, be entitled to take recourse to such remedies which are available to them in law including filing of an application under Order 21 Rules 97 and 99 of the Code of Civil Procedure, if any occasion arises therefore. As and when the said applicants take recourse to law, the same has to be determined in accordance with law. 20. In Narayan Chandra Garai (supra) the learned single Judge of this Court held that the main consideration in deciding such an application is whether or not the presence of such a person is necessary to enable the Court to effectually and completely adjudicate upon and settle the question involved in the suit. If it appears to the Court that the question at issue between the parties can be worked out without anyone else being brought in the stranger should not be added as a party. In Savitri Devi (supra) in paragraph ‘9’ the Hon’ble Supreme Court has observed as follows: 9. Order I Rule 10 CPC enables the Court to add any person as a party at any stage of the proceedings if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon the settle at the questions involved in the suit. Avoidance of a multiplicity of proceedings is also one of the objects of the said provision in the Code. 21. Avoidance of a multiplicity of proceedings is also one of the objects of the said provision in the Code. 21. The Hon’ble Supreme Court allowed the addition of party who was a transferee pendente lite on the ground that there exists some disputes as to whether the first defendant in the suit was a party to the order of injunction and the plea raised by the respondent nos. 3-5 that they were bona fide transferees for value in good faith may have to be decided before it can be held that the sales in their favour created no interest in the property. A contention was raised that the sale in favour of the respondent nos 3-5 by the first defendant are non-est in the eyes of law and could not convey any interest to the purchasers as they were executed in violation of the court order restraining the defendants from alienating the suit property till the disposal of the suit. The plea that the respondent nos. 3-5 were bona fide transferees for value in good faith is required to be decided either in the suit or in the application filed by the respondent nos. 3-5 for impleadment in the suit. If the application for impleadment is thrown out without a decision on the aforesaid question, it was observed that the respondent nos. 3-5 would certainly come up with a separate suit to enforce their alleged rights which means multiplicity of proceedings and in that context it was observed that it cannot be said the respondent nos. 3-5 are neither necessary party nor property parties to the suit. 22. In the instant case in deciding the application as to whether the applicant in the misc. application has been wrongfully dispossessed or not, the presence of the proposed applicant is not necessary. The addition would also lead to a complicated litigation by which the trial and decisions on issues which re totally outside the scope of the Miscellaneous Applications would have to be gone into. Moreover meticulous case is required to be taken to avoid addition if it is intended merely as ruse to ventilate certain other grievances of one or the other of the parties which is neither necessary or expedient or relevant and it is difficult to say that the rule contemplates joining as a defendant a person where any object is to prosecute his own cause of action. (Mahadeva Rice vs. Chernimalai, reported in AIR 1968 Madras 287, Ramesh Hirachnd vs. Municipal Corporation of Greater Bombay reported in 1992(2) SCC 524 , Kasturi vs. Iyyamperumal, reported in 2005 (6) SCC 793). 23. In view thereof, this Court is of the view that there is no infirmity in the order passed by the learned 3rd Judge, Presidency Small Causes Court, Calcutta in rejecting the application for addition of parties. 24. The revisional application thus stands dismissed. 25. There shall be no order as to costs. 26. This Court however, makes it clear that this Court has not gone into the merits of the claim of the petitioner in relation to the suit property. 27. The observation made in this order is only in relation to the maintainability of the application under Order 1 Rule 10 of the Code of Civil Procedure and this order cannot be construed as a decision on merit of any right of the proposed applicants if there be any in respect of the suit premises. 28. Photostat certified copy of the order, if applied for, be given to the parties on usual undertaking.