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2013 DIGILAW 936 (PAT)

Satyendra Tiwary v. Navyug Homes Private Limited

2013-08-05

CHAKRADHARI SHARAN SINGH

body2013
ORAL ORDER 1. Petitioner is defendant no.2 in Title Suit No. 234 of 2010. The suit was filed seeking the following reliefs:- i. “That by decree of Court it be held that the plaintiffs are entitled to enforce the development agreement dt. 29.3.2005 ‘as it is’ against the developer defendant. ii. That by decree of Court it be further held that the developer defendant is liable to deliver possession as per the development agreement the 25% of Schedule II and III property as agreed and shown as per Annexure II and III series. iii. That by decree of mandatory injunction the developer defendant be mandated to deliver possession of Schedule II & III shown in Annexure II and III series property. iv. That during the pendency of the suit the developer defendant be restrained from disturbing the status-quo i.e. the vacant possession of the scheduled property II and II shown in Annexure II & III A. v. That cost the Suit be awarded to the plaintiffs against the defendant. vi. That any other relief or reliefs to which the plaintiffs are found entitled to.” 2. Subsequently by way of amendment in the plaint following reliefs was added:- “That the plaintiffs are entitled to damage at the rate of Rs. 7,50,000 till 1.4.2010 and Rs. 1,00000 for agony and anxiety with interest at the rate of 18% per annum till filing of the suit and Rs. 25,000/- per month’s half of the rental value out of 50% till realization with interest at the rate of 18% per annum.” 3. The reliefs noted above have quoted from the decree passed in said Title Suit No. 234 of 2010 dated 9.7.2012 by learned Sub-Judge-3rd, Patna which has, though not been annexed either with the present application under Article 227 of the Constitution of India or with an affidavit filed by respondent no.2, but a copy of which, as furnished by learned counsel for respondent no.2 has been taken on record. Parties have no dispute about it. 4. Parties have no dispute about it. 4. The present case involves a very short point to be decided; which is, after passing of the decree dated 9.7.2012 by learned Sub-Judge-3rd, Patna, whether the suit is still pending or not with respect to such reliefs upon which there is no adjudication and which are apart from those on which the Court below passed the decree under Order 12 Rule 6 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’). 5. As this is the short point which the present application involves, and I am not going into the facts of the case in detail. 6. The main submission which has been made on behalf of the petitioner while assailing the impugned order dated 9.7.2012 is that once the decree having been passed in the suit, the Court became functus officio as no suit remained pending before it. In such circumstance, allowing an application under Order 1 Rule 10 (2) of the Code and permitting respondents second set to be impleaded as co-plaintiffs would amount to a revival of the suit, which stood disposed of with the passing of the decree. As has been indicated above, the petitioner is the defendant no.2 before the Court below. No other defendant nor the plaintiffs are objecting to such impleadment of Respondents second set as co-plaintiffs. 7. Mr. Vinay Kirti Singh, learned counsel appearing on behalf of the petitioner while laying emphasis on his submission that the Title Suit No. 234 of 2010 stood disposed of completely with the passing of the decree has very fairly accepted that if it is finally held that the suit is pending, impleadment of respondents second set as co-plaintiffs may not be interfered with, in exercise of power under Article 227 of the Constitution of India in facts and circumstances of the case and in view of the nature of dispute. 8. The plaintiffs, who are respondent nos. 6 to 10 in the present application are admittedly owners in possession of the suit land bearing M.S. Plot No. 797, Sheet No.-31 measuring 2.71 Kathas (3686 Sq.Ft.) situated at R.K. Bhattacharya Road (Moharampur), P.S. Kotwali now P.W.- Gandhi Maidan, District-Patna. According to them, they, along with other co-sharers being heirs of Abhilakh Tiwari entered into a development agreement with respondent no.1/defendant no.1 on 29.3.2005. According to them, they, along with other co-sharers being heirs of Abhilakh Tiwari entered into a development agreement with respondent no.1/defendant no.1 on 29.3.2005. The heirs of Jadubnash Tiwari and Hargovind Tiwari (grandfather of this petitioner) also confirmed the said development agreement. 9. With a grievance of breach of development agreement, the plaintiffs filed the said Title Suit No. 234 of 2010. They complained that the developer was selling his share whereas plaintiffs and branch of Abhilakh Tiwari were being deprived of benefit of their share. 10. The developer/respondent no.1 appeared and filed his written statement. He admitted development agreement dated 29.3.2005. He also admitted that there was distribution agreement as asserted in the plaint and showed his willingness to deliver/handover possession of the share to the plaintiffs as claimed by them. In view of the written statement, the plaintiffs filed a petition dated 14.9.2010 under Order 12 Rule 6 of the Code for passing a decree on admission in favour of the plaintiffs, as per the reliefs sought for in paragraph 26 of the plaint reflected in relief Nos. I, II, and III pending the reliefs no. V and VI. 11. The Court below allowed the said application under Order 12 Rule 6 of the Code by judgment dated 30.6.2012 holding that the plaintiffs would be entitled to enforce the development agreement dated 29.3.2005 ‘as it is’ against the developer/defendant. On the basis of said judgment passed on a petition under Order 12 Rule 6 of the Code, the decree dated 9.7.2012 was prepared. 12. This is to be noted that two First appeals, namely, F.A. No. 144 of 2012 filed by this petitioner and others and F.A. No. 174 of 2012 filed by the developer/defendant have been filed before this Court and are pending against the said judgment and decree dated 30.6.2012 and 9.7.2012. 13. There is no dispute about the facts that the persons i.e. respondents second set who are being sought to be brought on record as co-plaintiffs are parties to the development agreement. 14. Mr. 13. There is no dispute about the facts that the persons i.e. respondents second set who are being sought to be brought on record as co-plaintiffs are parties to the development agreement. 14. Mr. Vinay Kirti Singh, learned counsel appearing on behalf of the petitioner has referred to Order 20 Rule 1 and Rule 5 of the Code to submit that once the trial Court pronounced its judgment, it is to be presumed that judgment is upon all the issues framed touching all the reliefs prayed for in the suit and after passing of the judgment it cannot be said that anything remained pending with the Court. He has placed reliance on a Supreme Court judgment reported in AIR 1985 SC. 736 (M/s Fomento R & H. Ltd. Vs. Gustavo Ranato da Cruz Pinto) to submit that Court should, when dealing with any matter, dispose of all the points and the judgment should not rest on decision of one single point. He has also relied upon judgment of this Court reported in AIR 1973 Patna 389 (R.P. Singh Vs. Baidyanath Prasad) to reiterate that all the points are required to be decided by the trial Court and once it has delivered the judgment, nothing can be said to have remained pending, before the Court below and, therefore, there was no question of entertaining the said application under Order 1 Rule 10(2) of the Code for their impleadment as co-plaintiffs. 15. Mr. Jitendra Kishore Verma, learned counsel appearing on behalf of respondent no.2, on the other hand, has drawn my attention towards certified copy of the order-sheet of the said Title Suit No. 234 of 2010 to show that the said title suit is still continuing, without there being any objection raised from any party as regards its continuance after passing of the judgment dated 30.6.2012. He has contended, with reference to several orders passed by the Court below from 9.8.2012 to 25.7.2013 to demonstrate that the suit is continuing before the Court below. He further submits that the petition under Order 12 Rule 6 of the Code was confined to relief nos. I, II and III sought for in paragraph 26 of the plaint and in view of the admission made by the defendant/respondent no.1, the judgment dated 30.6.2012 also was confined to such relief. He further submits that the petition under Order 12 Rule 6 of the Code was confined to relief nos. I, II and III sought for in paragraph 26 of the plaint and in view of the admission made by the defendant/respondent no.1, the judgment dated 30.6.2012 also was confined to such relief. He submits that there is no illegality in the impugned order and that the suit is pending and rightly continuing for the rest of the reliefs. He submits that question of pronouncement of judgment on all the issues would arise only if the case is ‘heard’ within the meaning of Order 20 Rule 1 of the Code. In the present case, he submits that there was no hearing and the judgment was passed with respect to relief Nos. I, II and III under Order 12 Rule 6 of the Code. He had relied upon Supreme Court judgment reported in AIR 1971 SC 1081 (Bai Chanchal V. S. Jalaluddin) to contend that the Supreme Court has recognized passing of judgment at any stage in terms of Order 12 Rule 6 of the Code on the basis of admission/compromise without waiting for determination of other question. He submits, with reference to the said judgment, that there can be more than one decree in a suit. 16. Having taken note of the rival submissions made on behalf of the petitioner as well as respondent no.2, I am of the view; firstly that the judgments relied upon by Mr. Singh as noted above are not applicable in the facts and circumstances of the present case primarily for the reason that these judgments do not deal with the provisions of Order 12 Rule 6 of the Code. The Supreme Court, in case of M/s Fomento R. & H. Ltd. V. Gustavo Ranato da Cruz Pinto (supra) has held in paragraph 27 that it is desirable that the Court should dispose of all the points and not merely rest its decision on one single point so as to avoid delay and protraction of litigation. Supreme Court in that case was dealing with desirability of complete decision on all the issues with reference to Order 20 Rule 5 of the Code. Supreme Court in that case was dealing with desirability of complete decision on all the issues with reference to Order 20 Rule 5 of the Code. It did not deal with a circumstance where the Court could pass a judgment under Order 12 Rule 6 of the Code on the basis of admission made by the parties without waiting for determination of other questions in dispute. Similarly, this Court in case of R.P. Singh (supra) held in paragraph 16 that generally the Courts of the first instance are required to try all the issues including the preliminary issue as regards the maintainability. This Court in that case again was not dealing with Order 12 Rule 6 of the Code. This provision of the Code itself requires giving judgment by a Court at any stage without waiting for the determination of other questions, on the basis of admission on fact, made either in pleadings or otherwise. 17. Mr. Jitendra Kishore Verma, learned counsel has rightly relied upon the case of Bai Chanchal V. S. Jalaluddin (supra) in which Supreme Court in paragraph 8 of its judgment laid down as follows:- “8 The third point raised by learned counsel was that, since there was one single suit based on the lease of 1895 for ejectment of persons in possession, there could be only one single decree in that suit and the Court was incompetent to pass two separate decrees on 8th July, 1946 and 28th January, 1949. Counsel, in this connection, relied on the provisions of Rule 1 and 12 of Order XX of the Code of Civil Procedure which relate to the pronouncement of judgment and the Court passing a decree in a suit. These rules have really no relevance. On the other hand, Rule 3 of Order XXIII, C.P.C. clearly envisages a decree being passed in respect of part of the subject-matter of the suit on a compromise, and Rule 6 of Order XII, C.P.C. permits the passing of a judgment at any stage without waiting for determination of other questions. Thus, it is clear that in the same suit, there can be more than one decree passed at different stages. Thus, it is clear that in the same suit, there can be more than one decree passed at different stages. (emphasis added) In the present case, the first decree of 8th July, 1946 was based on a compromise between the plaintiffs and some of the defendants, while the second decree dated 28th January, 1949 decided the rights of the remaining defendants. The two decrees were separate and independent and neither of them could be treated as a nullity.” 18. In view of the above, I have no hesitation in holding that passing of the judgment dated 30.6.2012 in Title Suit No. 234 of 2010 on a petition filed under Order 12 Rule 6 of the Code did not result into complete disposal of the suit as the said judgment under Order 12 Rule 6 of the Code was confined to relief nos. I, II and III as sought in paragraph 26 of the plaint. With respect to other reliefs, as mentioned in the said petition under Order 12 Rule 6 of the Code. The suit remained pending for determination/adjudication. As has been indicated above, since respondents second set are admittedly parties to the development agreement, the impugned permitting their impleadment as co-plaintiffs cannot be faulted with, in the facts and circumstances of the case. 19. The impugned order, therefore, needs no interference. 20. This application is accordingly, dismissed.