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2014 DIGILAW 1910 (RAJ)

Arun Kumar v. Smt. Chhoti Devi

2014-11-26

BANWARI LAL SHARMA

body2014
JUDGMENT : 1. Though the matter is listed for orders on I.A. No. 44826/2014 under Article 226(3) of the Constitution of India for vacating the stay order passed on 09.09.2014 but with the consent of the learned counsel for the parties, the matter was heard finally. 2. The petitioners have preferred this writ petition invoking extraordinary jurisdiction vested in this court under Articles 226 and 227 of the Constitution of India against the order dated 31.07.2013 passed by the learned Additional District Judge, No. 18, Jaipur Metropolitan, Jaipur in Civil Suit No. 769/2012, whereby the learned court below dismissed the application filed under Order 1, Rule 10 CPC for impleading them as parties in the suit. 3. The brief facts giving rise to the case are that the respondent No. 15 Shri Mahaveer Swami Grah Nirman Sahakari Samiti Ltd. (hereinafter referred to as 'the Society') planned a residential scheme in the name of Prabhu Vihar Vistar Yojna in Village Mahal, Tan Jagatpura, Tehsil Sanganer, District Jaipur on a land ad measuring 10 bighas, 3 biswas in pursuance of execution of agreement to sale dated 25.03.1989 executed between the society and late Damodar S/o Bhonrya (now being represented through respondents Nos. 1 to 6) and Chhaju Ram S/o Bhonrya (respondent No.7). The society made full payment to the above said khatedars and also made division of the said land in plots and got demarcated them. The plot No. 23, ad measuring 500 sq. yards was allotted by the society to the petitioner No. 1 vide allotment letter dated 31.03.1992 against a total consideration Rs. 1,00,000/-. The petitioner No. 2 was allotted plots Nos. 45 and 46, ad measuring 266.66 sq. yards. The petitioner No. 3 was allotted plot No. 44, ad measuring 266.66 sq. yards and plot No. 34 was allotted to petitioner No. 4, ad measuring 450 sq. yards. A list of allottees of the said Prabhu Vihar Vistar Yojna was submitted by the society to the JDA (respondent No. 14) on 23.04.1997. The Department of Cooperative Societies recommended for liquidation of the society and the Joint Registrar (Banking), Cooperative Societies, Jaipur was appointed as Administrator of the Society who took-over the charge. yards. A list of allottees of the said Prabhu Vihar Vistar Yojna was submitted by the society to the JDA (respondent No. 14) on 23.04.1997. The Department of Cooperative Societies recommended for liquidation of the society and the Joint Registrar (Banking), Cooperative Societies, Jaipur was appointed as Administrator of the Society who took-over the charge. The possession of the major part of the said land as handed-over by the khatedars of the society at the time of execution of agreement to sale dated 25.03.1989 but possession of some part was not handed over and they were failed to execute registered sale-deed the same in favour of the society, therefore, a suit for specific performance and possession of part of the land was filed by the society against the khatedars on 01.04.2002, which was dismissed for want of evidence by the learned Additional District Judge, No. 2, Jaipur District, Jaipur vide judgment and decree dated 27.08.2004, which was challenged by the society before this court in regular first appeal being SB Civil Regular First Appeal No. 772/2004, which was admitted vide order dated 26.10.2004 and interim order on the same day in respect of the status quo of the said land was also passed. An application for impleadment as necessary party under Order 1, Rule 10 CPC was moved by the petitioner No. 1 in the aforesaid appeal on 25.07.2005, which was registered as SB Civil Misc. Application No. 18012/2005 and during the pendency of the said first appeal, a settlement was arrived at between the khatedars of the subject land and the society and they sold the land through a sale-deed dated 14.09.2006 to the respondent No. 11. An application for withdrawal of the first appeal on account of the settlement was filed by the society on 12.09.2006, which was decided by this court vide order dated 22.09.2006 and the said appeal was dismissed as withdrawn. On account of the sale-deed dated 14.09.2006, respondent No. 11 obtained an order under Section 90B of the Rajasthan Land Revenue Act in his favour of 19.12.2006. The Administrator of the society challenged the order Under Section 90B of the Rajasthan Land Revenue Act before the learned Divisional Commissioner, Jaipur in appeal where petitioner No. 1 also moved an application for impleadment on 10.12.2007 and the said application came to be allowed by the Divisional Commissioner vide its order dated 09.02.2009. The Administrator of the society challenged the order Under Section 90B of the Rajasthan Land Revenue Act before the learned Divisional Commissioner, Jaipur in appeal where petitioner No. 1 also moved an application for impleadment on 10.12.2007 and the said application came to be allowed by the Divisional Commissioner vide its order dated 09.02.2009. Thereafter, the appeal was dismissed vide order dated 18.09.2009. The said order was challenged by the Administrator of the society in writ petition before this court, which was registered as SB Civil Writ Petition No. 17197/2010, wherein notices were ordered to be issued to the respondents and an interim order of status quo was passed on 14.02.2011. After coming to know about the withdrawal of the appeal by the society, an application for recalling of the said order was also moved by the society through Administrator before this court on 24.05.2007, which was registered as SB Civil Misc. Application No. 55/2007 in SB Civil First Appeal No. 772/2004, wherein notices were issued and the application is pending for final adjudication. 4. Thereafter, a fresh suit was filed by the society being Civil Suit No. 887/2009 (769/2012) before the District Judge, Jaipur City, Jaipur for specific performance of contract, declaration and for cancellation of sale-deed and patta, possession and permanent injunction, wherein an application under Order 7, Rule 11 CPC was filed by the defendants Nos. 1 to 7 and an application under Order 1, Rule 10 CPC was filed by the petitioner No. 1 Arun Kumar and one Rajesh wherein while deciding the application under Order 7, Rule 11 CPC, the learned Additional District Judge No. 1, Jaipur Metropolitan, Jaipur, instead of rejecting the plaint under Order 7, Rule 11 CPC, ordered to s substitute elected President of the society and disposed of the application accordingly and vide order impugned dated 31.07.2013, the application of the petitioner for impleading them as parties under Order 1, Rule 10 CPC was dismissed against which this writ petition has been filed. 5. Heard learned counsel for the parties. 6. The learned counsel for the petitioners has submitted that the elected office bearers of the society are playing fraud and the petitioners are the allottees of plots over which they are having possession and the office bearers are not watching their interests, therefore, they are the necessary and proper parties. 5. Heard learned counsel for the parties. 6. The learned counsel for the petitioners has submitted that the elected office bearers of the society are playing fraud and the petitioners are the allottees of plots over which they are having possession and the office bearers are not watching their interests, therefore, they are the necessary and proper parties. The Divisional Commissioner also impleaded them as party in appeal filed against the order passed under Section 90B of the Rajasthan Land Revenue Act. The learned court below, without considering these facts, wrongly dismissed their application for impleadment. Therefore, the impugned order may be quashed and set aside and application of the petitioners filed under Order 1, Rule 10 CPC for their impleadment may be allowed. Learned counsel relied upon the judgments delivered in the cases of Thomson Press (India) Ltd. v. Nanak Builders & Investors Pvt. Ltd. 2013 (1) WLC (SC) Civil 453; Alwyn Housing Colony Welfare Association v. Government of Andhra Pradesh, (2009) is 9 SCC 489; Municipal Council, Hansi v. Mani Raj, 2001 WLC (SC) Civil 473; Sumtibai v. Paras Finance Co. Mankanwar, 2008 (1) WLC (SC) Civil 1; Gopal Sharma v. Ram Prasad, 2014 (1) WLN 159 ; Nisar Mohd. v. Smt. Dhapu Bai, 2014 (3) DNJ (Raj.) 978; Moolchand Bothra v. Addl. 50 District Judge & Ors.; Dashrath Kumar Choudhary v. Rameshwar Goyal, 2013 (3) WLC (Raj.) 143; Baijnath v. Smt. Ganga Devi, 1997 (3) WLC (Raj.) 715 and Shri Niwas Jhanwar v. Hanuman Bux, 2008 (3) DNJ (Raj.) 1544. 7. Per contra, the learned counsel for the respondents supported the impugned order and submitted that the suit is being pursuaded by the society and the petitioners are the members of the society. When the society is party, members of the society are not necessary parties. The petitioners are not the parties in the contract agreement and no relief was sought against them, therefore, they are neither necessary nor proper parties. If they have any grievance against the office bearers of the society, then they can raise the same before the proper forum according to law. Learned counsels relied upon the judgments delivered in the cases of Smt. Ramni Kumari v. Dr. Manju Bhatnager; Prahalad Sikngh & Anr. v. Additional District & Sessions Judge, Sambherlake, District Jaipur & Ors. 2011 (2) WLC (Raj.) 776; Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay & Ors. Learned counsels relied upon the judgments delivered in the cases of Smt. Ramni Kumari v. Dr. Manju Bhatnager; Prahalad Sikngh & Anr. v. Additional District & Sessions Judge, Sambherlake, District Jaipur & Ors. 2011 (2) WLC (Raj.) 776; Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay & Ors. (1992) 2 SCC 524 and Mumbai International Airport Private Limited v. Regency Convention Centre & Hotels Private Limited & Ors. 2010 (2) WLC (SC) Civil 207 : (2010) 7 SCC 417 . 8. I have considered the rival submissions made at the Bar and perused the available record. 9. In the matter of Thomson Press (India) Ltd. (supra), the suit for specific performance of contract was filed where the order was passed by the trial court restraining the vendor from selling the property and the vendor, despite the injunction of court, sold the property and the purchaser purchased the property with the knowledge of the said injunction. The purchaser filed application under Order 1, Rule 10 CPC as party defendant wherein the Hon'ble Supreme Court held that such a person can be allowed to be arrayed as party defendant. 10. In Alwyn Housing Colony Welfare Association (supra), the case pertains to allotment/alienation of acres of land wherein the respondent No. 5 allotted and handed over the plots in the said property to various persons who claimed to be members of the respondent No. 5 society and they were not impleaded in the writ petition and the Hon'ble Supreme Court, considering the fact that the appellant challenged the alienation/allotment of the aforesaid land to respondent No. 5, held that the allottees are necessary parties as they were in possession of the plots. 11. In the case of Municipal Council, Hansi (supra), there was suit for possession on the basis of earlier award and orders of the court, wherein the Hon'ble Supreme Court held that the person in possession, whose valuable rights were likely to be affected, was a necessary party and his application for intervention could not have been dismissed on the ground of delay. 12. In the case of Sumti Bai & Ors. (supra), in a suit for specific performance, it was held that a third party can be impleaded in the suit where third party shows some semblance of title or interest in the property. 13. In the matter of Gopal Sharma (supra), the respondents Nos. 12. In the case of Sumti Bai & Ors. (supra), in a suit for specific performance, it was held that a third party can be impleaded in the suit where third party shows some semblance of title or interest in the property. 13. In the matter of Gopal Sharma (supra), the respondents Nos. 6 to 17 claimed ownership to the disputed land and the suit was filed for seeking cancellation of registered sale-deed. A Coordinate Bench of this I court, considering the fact that any decision in the suit may prejudice the I financial interest of the applicants, held that they are necessary parties to the suit. 14. In the matter of Nisar Mohd. (supra), the applicant purchased the property in question through registered sale-deed and received the possession of the property, in such facts, Coordinate Bench of this court held that the applicant is a subsequent purchaser of the property in question and have all the rights to be impleaded in the proceedings and to be heard therein. He stepped into the shoes of the vendor and thus his application for impleadment was allowed. 15. In the matter of Moolchand Bothra (supra), considering the fact that the application was having semblance of title and interest over the property held that the applicant should be allowed to be impleaded as party. 16. In the matter of Dashrath Kumar Choudhary (supra), in the suit for specific performance where the plea in written statement was taken that wife is owner of part of the property and under such circumstances, it was held that her presence would be necessary to enable the court to effective and completely adjudicate upon and settle all the questions involved in the suit and application for impleadment was allowed. 17. In the matter Baijnath (supra), married daughter of the deceased defendant was claiming to have right, title and interest in the property in dispute submitted application for impleadment as party wherein a Coordinate Bench of this Court held that greater prejudice would be caused to the said party as a result of not impleading while no prejudice or loss would be caused to the plaintiff and her application was allowed. 18. 18. In the matter of Shri Niwas Jhanwar (supra) the plaintiff filed suit for cancellation of lease-deed and during pendency of suit, lease-deed was executed by the defendant in favour of applicant and the applicant claiming collusion between the defendant and plaintiff, filed application for impleadment, which was allowed by the trial court, wherein a Coordinate Bench of this court did not interfere. 19. In the case in hand, admittedly till date neither the title vests in the society nor in the petitioners. The suit for specific performance of contract was filed by the society and the petitioners are the members of the cooperative society and respective allotment letters were issued in their favour by the society. The complete title of land still vests in the khatedars and subsequent purchasers for which society has filed suit for specific performance of contract and cancellation of sale-deed in pursuance of agreement to sale. 20. In the matter of Arun Kumar Jain v. Divisional Commissioner, Jaipur & Ors. [DB Civil Special Appeal (Writ) No. 1518/2014, decided on 09.10.2014] , appellant Arun Kumar Jain (who is petitioner No. 1 in the present case) submitted that a fraud was played by the cooperative society and khatedars on the petitioner and other allottees, who were bona fide purchasers of land for valuable consideration. The cooperative society and khatedars entered into a collusion and after the suit was dismissed, the society did not pursue the appeal. After considering the submission, the Division Bench of this court observed that the petitioner has not filed any suit for protection of his own rights and for claiming reliefs on the ground of fraud played on him and observed that in view of the above proceedings for protecting the rights of the petitioners are entirely ill advised and are misconceived. The plea of fraud can be proved by evidence for which, remedy must be in a civil suit. Instead of filing civil suit for protection of his rights, the petitioner has relied on negligence of the cooperative society in pursing the civil suit filed by the society and held that the entire proceedings initiated by the appellant in this court are misconceived and the special appeal filed by the petitioner was dismissed with liberty to the petitioner to pursue the remedies open to him by filing a civil suit in the court of competent jurisdiction. 21. In S.B. Civil Misc. 21. In S.B. Civil Misc. Application No. 112/2014 in S.B. Civil First Appeal No. 772/2004 (decided on 10.11.2014), preferred by the petitioner No. 1 Arun Kumar Jain, the contention of the applicant (petitioner No. 1 herein) was that he is also an aggrieved party, hence order of withdrawal of appeal may be called for whereas the respondents have submitted that the earlier suit was dismissed, then appeal was withdrawn, the present applicant has no locus standi in the matter and issue has been decided by the Coordinate Bench of this court considering the order passed in D.B. Civil Special Appeal (Writ) No. 1518/2014 and held that nothing survives in the application and the application was rejected. 22. In the matter of Ramesh Heerachand Kundanmal (supra), the dealer in possession of a service station under an agreement with the lessee thereof was not treated as necessary or proper party and it was held that if : he is being impleaded as party, it would enlarge the issue of the suit. Therefore, the court cannot direct the plaintiff dealer to add the lessee as defendant in the suit. 23. In the matter of Mumbai International Airport Pvt. Ltd. (supra), it was held that the plaintiff may choose defendant and he cannot be compelled to sue a person against whom he seeks no relief. It was further held that mere likelihood of a third party to secure right/interest in suit property in case of dismissal of specific performance suit does not make such party necessary or proper party to that suit. 24. In the matter of Prahald Singh (supra), in a suit for specific performance of contract where the property was in the name of "K" and thereafter entered in the name of "B" and the petitioners were nowhere in picture till agreement for sale was entered into by "B" Their application for impleadment was rejected. In writ, a Coordinate Bench of this court held that impleadment of petitioners was rightly refused. 25. In the matter of Smt. Ramni Kumari (supra), the land was allotted to its members by the society for construction of houses. The land was held only by society and was not held independently by allottees on lease hold or free hold. In such situation, it was held that dispute between two members relating to plot of land can be referred under Section 75 to the Registrar. 26. The land was held only by society and was not held independently by allottees on lease hold or free hold. In such situation, it was held that dispute between two members relating to plot of land can be referred under Section 75 to the Registrar. 26. In the case in hand, the petitioners are claiming their rights against the society as a member of the society on the basis of allotment letters issued by the society. Now the question, which comes for determination is the right of allottee and the meaning of the word "allotment". In ordinary parlance, the word "allotment" is understood as distribution out of the land to its members. The nature of the distribution, character of distribution, class of distribution may differ in the circumstances of each case and may create in some cases narrow interest of the allottees and in some cases, wider interest of the allottees. Therefore, the suit filed by the society for specific so performance of contract, members of the society are neither necessary nor proper parties. Further, the Division Bench, in D.B. Civil Special Appeal (Writ) No. 1518/2014, held as under:- "In view of the above, these proceedings for protecting the rights of the petitioner are entire ill advised and are misconceived. The plea of fraud can be proved by evidence for which remedy must be sought in a civil suit. Instead of filing civil suit for protection of his rights, the petitioner has relied on negligence of the Cooperative Society in pursing the civil suit filed by the Society. The entire proceedings, initiated by the appellant in this Court, are misconceived. The Special Appeal is accordingly, dismissed with liberty to the petitioner to pursue the remedies open to him by filing a civil suit in the court of competent jurisdiction." 27. In view of the above, nothing survives in this writ petition and the petitioners are neither necessary nor proper parties. The learned court below, vide order dated 31.07.2013, while considering all these aspects, dismissed the application of the petitioners, which does not require any interference by this court. The writ petition, being devoid of any merit, is hereby dismissed.Writ Petition Dismissed.