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2016 DIGILAW 641 (MP)

Ramesh Kumari Sharma v. Asin Verma

2016-08-01

ROHIT ARYA

body2016
ORDER 1. In this writ petition under Article 227 of the Constitution of India, petitioner/applicant has approached this Court against rejection of the application filed under Order 1 rule 10 read with section 151 CPC by the impugned order dated 15.2.2016 in Civil Suit No.32A/2015 by the trial Court. 2. Facts necessary for disposal of this writ petition are in narrow compass. A suit for specific performance of the agreement dated 7.3.2011 was filed by the petitioner against two persons, namely; Smt. Savitri Verma w/o late Bhanwar Verma and Ms. Neena Singh d/o late Bhanwar Verma (defendants No.1 and 2) in respect of the registered agreement dated 7.3.2011 relating to the suit property. The aforesaid suit has been decreed vide judgment and decree dated 28.1.2005 passed in Civil Suit No.222-A/2013 by Eleventh Civil Judge, Class-I, Gwalior. It appears that no further proceedings as against the aforesaid decree has been either instituted or pending consideration as on date. However, the respondents No.1 and 2 herein who are grand-son and grand-daughter, namely; Asin and Smt. Akshata have filed a suit for declaration and injunction to the effect that the alleged agreement dated 7.3.2011 be declared as null and void as against the plaintiffs'. Further relief for permanent injunction has been sought restraining the petitioner herein not to interfere with the suit property as well as injunction against other defendants' not to alienate the suit property or part therewith without partition of the joint Hindu family property. The family tree has been described in paragraph 3 of the pliant. The suit property is described to be ancestral property of the ownership of one Smt. Lakshmi Bai which was devolved upon her daughter-in-law, Smt. Chandi Bai wherefrom the property was later on devolved upon late Bhanvar Singh Verma and to his wife, Smt. Savitri Bai, son late Narendra Verma, and daughters, Smt.Mona, Kumari Neena Singh and Kumari Seema. Present plaintiffs' are son and daughter of late Narendra Verma. 3. However, the present petitioner was not added as a party to the suit filed by the plaintiffs'. 4. The suit was filed on 22.8.2014. The evidence of plaintiffs' was fixed for 21.4.2015 and thereafter evidence was closed. Defendants' evidence was to commence on 23.4.2015 but on that the Presiding Officer was on leave. However, the evidence on affidavits was submitted by the defendants' on 24.4.2015. 4. The suit was filed on 22.8.2014. The evidence of plaintiffs' was fixed for 21.4.2015 and thereafter evidence was closed. Defendants' evidence was to commence on 23.4.2015 but on that the Presiding Officer was on leave. However, the evidence on affidavits was submitted by the defendants' on 24.4.2015. On that very date (24.4.2015), application under Order 1 rule 10 read with section 151 CPC was filed by the present petitioner to be added as party. 5. Trial Court has rejected the application on the premise that the respondents'/plaintiffs' are dominus litus and they cannot be forced to add the petitioner as party/defendant. Moreover, the application for impleadment has been filed belatedly and, therefore, the same cannot be entertained. Accordingly, rejected the application. 6. Learned senior counsel appearing for the petitioner while criticizing the order impugned contends that the trial Court has committed grave illegality and irregularity in the matter of dealing with the application filed under Order 1 rule 10 read with section 151 CPC. Besides, while dealing with the application, the trial Court was required to address upon as to whether the petitioner has to be heard in the context of the principles of natural justice. That has not been done. It is submitted that admittedly the petitioner was party to the agreement dated 7.3.2011. Defendants' No.1 and 2 had executed the agreement dated 7.3.2011 in favour of the petitioner. Decree dated 28.1.2005 (supra) was passed based on the agreement dated 7.3.2011 directing specific performance of the agreement in favour of petitioner. Under these circumstances, if the agreement to sell dated 7.3.2011 is sought to be declared as null and void as against the plaintiffs', in all fairness, the petitioner ought to have been heard in the context thereof. Further, it is contended that in fact and in effect, the suit in hand is a collusive suit to cause damage to the interest of the petitioner without making him a party. The case was fixed for plaintiffs' evidence on 21.4.2015 and the same was closed. Thereafter, the case was fixed for defendants' evidence on 23.4.2015 but on that date, the Presiding Officer was on leave. The evidence of defendants' was to commence on 24.4.2015. At that stage, no sooner did the petitioner acquired knowledge of the proceedings of the instant suit has filed application under Order 1 rule 10 read with section 151 CPC. Thereafter, the case was fixed for defendants' evidence on 23.4.2015 but on that date, the Presiding Officer was on leave. The evidence of defendants' was to commence on 24.4.2015. At that stage, no sooner did the petitioner acquired knowledge of the proceedings of the instant suit has filed application under Order 1 rule 10 read with section 151 CPC. As such, the application could not have been treated to be filed at belated stage. 7. It is further contended that for the reason that the plaintiffs' are not party to the agreement dated 7.3.2011, this by itself, could not justify rejection of the application under Order 1 rule 10 read with section 151 CPC filed by the petitioner. Even though the plaintiffs' are not party to the agreement dated 7.3.2011 but as a declaration has been sought for declaring the agreement dated 7.3.2011 as null and void, the petitioner ought to have been added as a party. With the aforesaid submissions, learned senior counsel prays for setting aside the impugned order and permission to participate in the proceedings of the instant suit. 8. Per contra, Shri D.K.Katare, learned counsel for the plaintiffs'/respondents No.1 and 2 contends that the plaintiffs' are dominus litus. It is the choice of the plaintiffs to implead the persons against whom relief is claimed. In other words, it is choice of the plaintiffs' to array the defendants' while claiming relief in a given suit. No relief is sought against the petitioner. Plaintiffs' are not party to the agreement dated 7.3.2011. That apart, the property in suit is a joint Hindu family property. Hence, unless all the co-sharers were party, the agreement dated 7.3.2011 is a nullity. The application has been filed belatedly at the stage of evidence of defendants'. Under these circumstances, the trial has not committed any illegality in rejecting the application. 9. Heard learned counsel for the parties. 10. Undisputedly, the agreement dated 7.3.2011 is between the petitioner and the defendants No.1 and 2, namely; Smt. Savitri Verma w/o late Bhanwar Verma and Ms. Neena Singh d/o late Bhanwar Verma. The agreement is for the specific performance of agreement to sell as regards the suit property. The agreement has sanction of law in view of the decree dated 28.1.2005 passed by the trial Court (supra) and the said decree so far has not either varied or set aside. Neena Singh d/o late Bhanwar Verma. The agreement is for the specific performance of agreement to sell as regards the suit property. The agreement has sanction of law in view of the decree dated 28.1.2005 passed by the trial Court (supra) and the said decree so far has not either varied or set aside. The plaintiffs' have sought declaration that the agreement dated 7.3.2011 is a nullity against the plaintiffs'. Therefore, at the first instance, the primary requirement of principles of natural justice is that a person in whose favour the agreement was entered into, needs to be heard before the said agreement is interfered with to the prejudice of the petitioner, therefore, there is apparent violation of the principles of natural justice. That apart, while dealing with the application under Order 1 rule 10 CPC, the trial Court is required to ensure whether the party sought to be added is a necessary party or not to do complete justice between the parties. The trial Court has to apply its mind to the basic principles of natural justice and the nature of relief sought in the suit and also to ensure that there is no multiplicity of the proceedings. Under these circumstances, the trial Court is required to look into the relief as sought for by the plaintiffs'. That has not been done in the instant case. The trial Court has in fact refused to exercise the jurisdiction under Order 1 rule 10 CPC. The contentions of learned counsel for the plaintiffs'/respondents' in fact and in effect are in the realm of merits of controversy involved and the same cannot be countenanced to justify the order impugned whereby the application filed under Order 1 rule 10 read with section 151 CPC by the petitioner has been rejected. Accordingly, in the opinion of this Court, the trial Court has committed grave illegality while rejecting the application filed by the petitioner under Order 1 rule 10 read with section 151 CPC. Hence, the impugned order is set aside. The trial Court shall direct the plaintiffs' to add the petitioner as party-defendant and thereafter proceed to decide the suit in accordance with law. 11. It is made clear that this Court has not expressed any opinion on merits of the case and the observations made in this order are only for the purpose of deciding the writ petition only. The trial Court shall direct the plaintiffs' to add the petitioner as party-defendant and thereafter proceed to decide the suit in accordance with law. 11. It is made clear that this Court has not expressed any opinion on merits of the case and the observations made in this order are only for the purpose of deciding the writ petition only. N. K. Gupta with Ravi Gupta for petitioner; D. K. Katare for respondents No.1 and 2.