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Orissa High Court · body

2016 DIGILAW 601 (ORI)

Bansidhar Nayak (Dead) v. Priya Ranjan Mohanty

2016-08-08

A.K.RATH

body2016
JUDGMENT : A.K. RATH, J. This petition challenges the correctness of the order dated 26.3.2016 passed by the learned 1st Additional Civil Judge (Sr. Division), Bhubaneswar in C.S.No.94/1059 of 2013/08 allowing the application filed by opposite party no.3 under Order 1 Rule 10 C.P.C. for impleadment. 2. Bansidhar Nayak, predecessor in interest of the petitioners, instituted suit for declaration that the Registered Power of Attorney No.10971 dated 1.10.2007 as nullity, confirmation of possession, permanent injunction and other consequential reliefs impleading the opposite parties 1 and 2 as defendants. The case of the plaintiff is that the G.A. Department has executed a lease deed in his favour in respect of the suit schedule land on 8.4.1962. He has constructed a residential house over the same and is residing therein with his family members. He has also rented out some portion of his residential house. In the hal settlement operation, the schedule property has been recorded in his name in the R.O.R. By virtue of resolution dated 18.7.2003 of the State Government, it was declared that leasehold property of the G.A. Department would be converted to free hold property on proper application and deposit of requisite fees. Since he is an old man suffering from heart diseases and other ailments, he became unable to pursue the matter. His son was staying outside the State in connection with his service. At this juncture, the defendant no.1, friend of his son, came forward to help him for conversion of the lease hold land to free hold. The defendant no.1 intimated him that he had already contacted the officials of G.A. Department and his personal presence was required for the said purpose. Due to bad health, he was not in a position to move out. The defendant no.1 gave a proposal to him to execute and register a power of attorney in his favour to look after the matter for conversion before the G.A. Department, to which he agreed. When he was ill and not in a fit state of mind and unable to understand anything, the defendant no.1 had managed to take him to the office of Sub-Register, Bhubaneswar. The defendant no.1 had already drafted a deed through his advocate and misrepresented him. On good faith, without knowing the contents of the document, he put his signature and L.T.I. and also admitted the execution. The defendant no.1 had already drafted a deed through his advocate and misrepresented him. On good faith, without knowing the contents of the document, he put his signature and L.T.I. and also admitted the execution. It is further stated that the Land Officer, G.A. Department by letter dated 27.2.2008 informed him to deposit a sum of Rs.61,983/- towards conversion fees and Rs.1,02,273/- towards differential premium in shape of two Bank draft in favour of Land Officer, G.A. Department so as to execute a conveyance deed within 30 days. He gave the above mentioned amount to the defendant no.1 to prepare Bank draft. The defendant no.1 deposited the Bank draft and accordingly a deed of conveyance for conversion from lease hold to free hold had been executed and registered on 22.4.2008. As per the instruction of the defendant no.1, he signed on various papers. The Director of Ex Officio-Joint Secretary to Government vide memo no.12287 dated 12.8.2008 informed him that his land was converted to free hold stitiban status with effect from 22.4.2008. 3. Pursuant to issuance of summons, the defendants entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. It is stated that the suit as laid is speculative one. The plaintiff’s case suffers from inherent inconsistencies and contradictions. The plaint is conspicuously silent regarding specific nature or instance of fraud. There is no averment regarding particulars of fraud. The suit has been instituted to deprive defendant no.2, bona fide purchaser to enjoy the suit property. The plaintiff had executed a registered agreement for sale in favour of defendant no.1 on 5.10.2007, acknowledged receipt of Rs.10,00,000/- in cash from defendant no.1 towards part consideration and subsequently received an amount of Rs.15,00,000/-in cash. He had applied for change of the lease hold status of land into free hold tenure. It is further stated that since the defendant no.1 was not in a position to arrange the total consideration amount immediately and his brother, defendant no.2 was ready and willing to purchase the property, the defendant no.1 as the constituted attorney of the plaintiff, had executed and registered the sale deed, transferring the suit land in favour of defendant no.2 by means of Registered Sale Deed No.8333 dated 3.6.2008 for a valid consideration. Possession of the property was duly delivered to the vendee. 4. Possession of the property was duly delivered to the vendee. 4. While the matter stood thus, the opposite party no.3 had filed an application under Order 1 Rule 10 C.P.C. to implead it as defendant. It is stated that it has invested a huge amount of money towards purchase of the suit land. The plaintiff had executed and registered irrevocable Power of Attorney along with agreement in favour of the defendants, who in turn, received the money from the intervenor towards sale transaction. The plaintiff is duty bound to execute and register the sale deed in its favour. The plaintiff filed objection to the same. The learned trial court came to hold that as the intervenor’s claim relates to self-same property, which is involved in the suit, it has direct interest in the suit property. It was further held that presence of the intervenor will help the complete adjudication of the dispute and no prejudice will cause to the plaintiff, in the event the application is allowed. On the contrary, if the suit is decided in absence of the intervenor, it may be seriously prejudiced. The intervenor is a proper party to the suit. Though there is delay in filing the application, but the same is not a ground to reject the application when the intervenor has direct interest in the dispute. Held so, the learned trial allowed the application. 5. Heard Mr. B. Bhuyan, learned Advocate for the petitioners and Mr. P.K. Padhi, learned counsel for opposite parties 1 and 2 as well as Mr. M. Pattnayak, learned Advocate for opposite party no.3. 6. Mr.Bhuyan, learned counsel for the petitioners submits that the intervenor is neither necessary nor proper party to the suit. The plaintiff has not claimed any relief against the intervenor. The suit has been filed for declaration of the registered power of attorney executed in favour of the defendant no.1 as nullity. The parties to the said documents are the necessary parties in the suit. The learned trial court brushed aside the same. He further submits that the intervenor filed C.S.No.361 of 2010 for specific performance of contract. He has no right over the suit property. To buttress his submission, Mr. Bhuyan, learned counsel for the petitioners cited the decisions in the case of Kasturi Vrs. Iyyamperumal and others, AIR 2005 S.C. 2813 , Jasobanti Mahakud Vrs. He further submits that the intervenor filed C.S.No.361 of 2010 for specific performance of contract. He has no right over the suit property. To buttress his submission, Mr. Bhuyan, learned counsel for the petitioners cited the decisions in the case of Kasturi Vrs. Iyyamperumal and others, AIR 2005 S.C. 2813 , Jasobanti Mahakud Vrs. Ramesh Padhan & others, Vol.112 (2011) CLT 852 and Panjum Bibi @ Ramjan Bibi and 7 others Vrs. Najma Alim & another, Vol.106 (2008) CLT 731. 7. Per contra, Mr. Pattnayak, learned counsel for opposite party no.3 supports the order. He contends that the intervenor had invested huge amount of money towards purchase of the suit property from the plaintiff. The plaintiff had also executed and registered the irrevocable general power of attorney and agreement to sale with the defendants, who in turn, received money from the intervenor towards sale transaction. The plaintiff is under obligation to execute and register the sale deed in respect of the suit schedule land in favour of the intervenor. He further submits that though the plaintiff had received huge amount of money from the intervenor, but did not execute the sale deed. Further, the intervenor has instituted C.S.No.361/2010 for specific performance of contract impleading the plaintiff and defendants in the same court, which is sub judice. In view of the same, the intervenor has direct interest over the property in question. Hence, it may be added as a party. He relies on the decisions in the case of Laita Singh Samanta Vrs. Prasanna Kumar Senapati and others, 2016 (II) ILR-CUT-130, Mirza Golam Jelani Baig Vrs. Prabir Kumar Samal and others, 2015 (II) OLR 663 , Geetanjali Panda Vrs. Pranaya Ballari Mohanty, Vol.119 (2015) CLT, 148 and Sumatibai and others Vrs. Paras Finance Co. Mankanwar, AIR 2007 S.C. 3166 . 8. Mr. Padhi, learned counsel for the opposite parties 1 and 2, supports the contention of Mr. Pattnayak. 9. Before proceeding further, reference may be to the decisions cited by the learned counsel for the parties. In Kasturi (supra), the apex Court held that in a suit for specific performance of a contract, a stranger to contract is neither necessary nor proper party. The same view was reiterated by this Court in Jasobanti Mahakud (supra). In Panjum Bibi (supra), this Court held that avoidance of multiplicity of litigation cannot be the sole criteria for deciding the application for impleadment. The same view was reiterated by this Court in Jasobanti Mahakud (supra). In Panjum Bibi (supra), this Court held that avoidance of multiplicity of litigation cannot be the sole criteria for deciding the application for impleadment. Generally a party cannot be impleaded against the wishes of the plaintiff. In Lalita Singh Samanta (supra), this Court held that rejection of application under Order 1 Rule 10 C.P.C. is per se not a ground to reject the application for leave to file appeal. The appellate court has to see as to whether the petitioner is aggrieved by a decree or is otherwise prejudicially affected by the decree. The said decision is distinguishable inasmuch as this Court has to consider whether the intervenor is a necessary or proper party to the suit. In Mirza Golam Jelani Baig (supra), after the preliminary decree in the suit for partition was passed, an application for impleadment was filed on the ground that the intervenor has purchased certain properties from one of the co-sharer. This Court held that events happening subsequent to the passing of the preliminary decree can also be taken into consideration and decided at the stage of final decree proceeding and the petitioner has direct interest in the subject matter of litigation. In a suit for partition, purchase of a piece of property from one of the co-sharers stands on a different footing than an intervenor in a suit for declaration that power of attorney executed by the plaintiff in favour defendant is null and void. The decision is distinguishable. In Geetanjali Panda (supra), this Court held that eventual interest of the party in the fruits of a litigation cannot be held to be true test of impleading the intervenor a party. The said decision is also distinguishable. In Sumtibai (supra), the apex Court distinguished the earlier decision in the case of Kasturi and held that it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed, third party can never be impleaded as party in a suit. 10. The contention of the learned counsel for the opposite party no.3 that opposite party no.3 has filed a suit for specific performance of contract and as such he is a necessary party, is difficult to fathom. In the case of Atish Chandra Sinha and another Vrs. 10. The contention of the learned counsel for the opposite party no.3 that opposite party no.3 has filed a suit for specific performance of contract and as such he is a necessary party, is difficult to fathom. In the case of Atish Chandra Sinha and another Vrs. Smt. Manjushree Dash and another, 2016 (I) ILR-CUT-520, this Court taking a cure from the decision of the apex Court in the case of Anil Kumar Singh Vrs. Shivnath Mishra @ Gadasa Guri, (1995) 3 SCC 147 and Kasturi (supra) held that in a suit for specific performance of a contract for sale of a property, a stranger or a third party to the contract is neither necessary nor proper party to the suit. 11. The distinction between a necessary party and a proper party is well known. In Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another, AIR 1963 SC 786 , the apex Court held that 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. 12. In Razia Begum v. Sahebzadi Anwar Begum and others, AIR 1958 SC 886 , the apex Court held 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 moveable or immoveable property. 13. The suit has been filed for a declaration that Registered Power of Attorney No.10971 dated 1.10.2007 as nullity, confirmation of possession and permanent injunction. The plaintiff had executed the power of attorney in favour of the defendant no.1. The assertion of the plaintiff is that by playing fraud on him, the defendant no.1 managed to execute the deed in his favour when he was not in a fit state of mind. In the said power of attorney, the defendant no.2 was witness. Further, the defendant no.1 had executed a registered sale deed of the suit property in favour of his brother-defendant no.2. In the said power of attorney, the defendant no.2 was witness. Further, the defendant no.1 had executed a registered sale deed of the suit property in favour of his brother-defendant no.2. Interpreting the words “all the questions involved in the suit” appearing in sub Rule-(2), Order 1 Rule 10 of C.P.C., the apex Court in Kasturi (supra) in no uncertain terms held that the legislature clearly meant that the controversies raised as between the parties to the litigation must be gone into only, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiff and defendants inter se or questions between the parties to the suit and a third party. It was further held that the plaintiff is the dominus litus. He cannot be forced to add a party against whom he does not want to fight unless it is a compulsion or rule of law. The suit for declaration of power of attorney as void and permanent injunction, if impleadment is allowed, will lead to a complicated litigation by which the trial and decision of serious questions, which are totally outside the scope of the suit, would have to be gone into. The same cannot be. The assertion of the intervenor that it has filed the suit for specific performance of contract impleading the defendants as well as plaintiff for which its presence is necessary for decision of the case is difficult to fathom. As held by this Court in Gitanjali Panda (supra), eventual interest of the appellant in the fruits of a litigation cannot be held to be the true test of impleading as a party. The intervenor has no direct interest in the subject matter of the litigation. 14. In the wake of aforesaid, the order dated 26.3.2016 passed by the learned 1st Additional Civil Judge (Sr. Division), Bhubaneswar in C.S.No.94/1059 of 2013/08 is quashed. Accordingly, the petition is allowed. There shall be no order as to costs.