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2016 DIGILAW 864 (RAJ)

Arun Pabuwal v. Carol J. Sen

2016-06-13

PRASHANT KUMAR AGARWAL

body2016
ORDER Prashant Kumar Agarwal, J. As these two Civil Writ Petitions filed under Article 226 read with Article 227 of the Constitution of India and two Civil Misc. Appeals filed under Section 104 read with Order 43, Rule 1 (l) of CPC involve common questions of law and facts, they with the consent of learned counsel for the parties were heard together and are being decided by this common order. Copy of the order may be placed in each of the files. Applicants-petitioners-Appellants by way of these petitions/appeals have assailed the order dated 20.5.2014 passed in each of the four suits (C.S.No.77/98, 78/98, 129/98 and 76/98, which also involve almost similar question of law and facts) whereby the learned trial Court i.e. Additional Civil Judge (Senior Division) No.7, Jaipur Metropolitan, Jaipur has dismissed the application under Order 1, Rule 10 read with Order 22, Rule 10 read with Order 6, Rule 17 CPC filed by each of the petitioner/appellant. 2. Brief relevant facts leading to these petitions/appeals are that plaintiff-respondents filed aforesaid four different suits against defendant-respondents for cancellation of four different registered exchange-deeds all dated 28.7.1987 and for permanent injunction with the averment that defendant-Hero Harjani (who died during pendency of the suits) surreptitiously got the power of attorney executed in his favour from Shri Raghuveer Sen (predecessor of plaintiffs) on 16.1.1981 and by taking advantage of illness of Shri Raghuveer Sen and his habit of drinking on the strength of this power of attorney fraudulently and in connivance with defendant-respondent executed these registered exchange-deeds on 28.7.1987. Respondent-defendant filed written statement and denied plaint averments. During the course of trial of these suits, each of the applicant purchased the suit property (subject matter of each of the exchange-deeds) from plaintiffs by way of four different registered sale-deeds and filed application in each suit under Order 1, Rule 10 read with Order 22, Rule 10 read with Order 6, Rule 17 CPC with a prayer to substitute/implead him as plaintiff as he has become owner of the suit property after purchasing it from plaintiffs, the legal representatives of late Shri Raghuveer Sen. It was also prayed in the application that the applicant may be allowed to incorporate consequential amendment in the plaint in view of the subsequent developments during pendency of the suit. It was also prayed in the application that the applicant may be allowed to incorporate consequential amendment in the plaint in view of the subsequent developments during pendency of the suit. It is to be noted that it is not in dispute that each of the applicant purchased the suit property knowing well that it is subject matter of registered exchange-deeds and for their cancellation suits are pending in the Court. In the reply to the application filed by the respondent-defendant, it was averred that the sale-deeds in favour of applicants are null and void since the plaintiffs had no title and interest in the suit property as it was already transferred to them by way of registered exchange-deeds by Shri Raghuveer Sen and unless and until the exchange-deeds are cancelled by Court, plaintiffs were not entitled to sell the suit property. It was also averred that applicant is neither a necessary nor proper party in the suit and he is not entitled to be substituted or impleaded as plaintiff in the suit as his presence is not required for the disposal of the suit. It was also said that amendment in the plaint is misconceived as it is not required for determination of questions involved in the suit. 3. It was submitted by learned counsel for the applicants that as the plaintiff-respondents during the pendency of the suits have assigned or created interest in the property in their favour by way of registered sale-deeds and right and interest of the plaintiffs has devolved upon them, they deserve to be impleaded/substituted as plaintiff so that they cannot only proceed against the defendant-respondent in the suits in a more appropriate manner, but also to protect their rights devolved upon them under sale-deeds. It was further submitted that plaintiffs are permanent citizen of USA and after sell of suit property in favour of applicants, they have almost lost interest in the same and applicant’s rights and interest in the suit property will be adversely affected in case the plaintiffs collude with the respondent-defendant and choose not to proceed with the suits and, therefore, their presence before the Court as plaintiff is necessary so that the suits for cancellation of exchange-deeds may reach to a logical conclusion and they are decided on merit. It was also submitted that if the applicants are impleaded/substituted as plaintiff they can not only defend and protect their rights in a better way but also make efforts that best evidence available come before the Court. It was further submitted that after execution of sale-deeds, plaintiffs have lost their right, interest and title in the suit property and now only applicants are affected person by exchange-deeds in question and therefore, they are not only proper but necessary party and in their absence, the issue involved in the suits cannot be decided by the Court. It was further submitted that present applications were filed by the applicants soon after purchase of the suit property and as plaintiffs are having no objection if the applicants are added/substituted as plaintiffs, defendant-respondent has no right to object it as it is between applicants and present plaintiffs to decide whether applicants may be permitted to be made plaintiff in the suit or not. It was contended that once the applicants are added/substituted as plaintiff, the consequential amendment in the plaint is inevitable to be allowed. 4. In support of his submissions, learned counsel for the petitioners-appellants relied upon the cases of Amit Kumar Shaw & Anr. v. Farida Khatoon & Anr. reported in (2005) 11 SCC 403 , Thomson Press (India) Ltd. v. Nanak Builders and Investors P.Ltd. and Ors. Reported in AIR 2013 SC 2389 , Dhurandhar Prasad Singh v. Jai Prakash University & Ors. Reported in (2001) 6 SCC 534 , Khemchand Shankar Choudhary & Anr. v. Vishnu Hari Patil & Ors. Reported in AIR 1983 SC 124 , Raj Kumar v. Sardari Lal & Ors. Reported in (2004) 2 SCC 601 and Smt.Saila Bala Dassi v. Sm.Nirmala Sundari Dassi & Anr. reported in AIR 1958 SC 394 (1). 5. On the other hand, it was submitted by the learned counsel for the defendant-respondents that the applicants are not bona fide purchaser of the suit property as they purchased it despite knowing well that the same has been transferred to defendants way back in the year 1987 by way of different registered exchange-deeds by Shri Raghuveer Sen and suits for cancellation of the deeds are pending before the Court. It was further submitted that unless and until the exchange-deeds in question are cancelled by the Court, plaintiffs had no valid title, right or interest in the suit property so as to sell it to applicants or any other person and no right of any sort conferred upon them even if registered sale-deeds were executed in their favour. It was also submitted that applicants are entitled neither to be added nor substituted as plaintiff as they are neither a proper or necessary party in the suit as their presence as party to the suit is of no help to the Court in any manner to decide the issue involved in the suits which is to the effect whether the exchange-deeds in question are fraudulent documents which the defendant-respondents got executed in their favour in connivance with power of attorney of late Shri Raghuveer Sen. It was submitted that at the time of execution of the exchange-deeds, applicants were not at all in picture and learned counsel for the applicants is unable to explain how mere presence of applicants before Court as party plaintiff will help the Court to resolve the issue pending before it. It was also submitted that as per terms and conditions of the sale-deeds in favour of the applicants, it is clear that applicants have purchased mere litigation with malafide intention so as to pressurise and harass the defendant-respondents and, therefore, discretion conferred upon the Court should not be exercised in their favour. It was contended that case law relied upon on behalf of the applicants is of no help to them as it is based on entirely different fact situation. According to learned counsel for the defendant-respondent if a person bonafidely purchases a property from its owner even during pendency of suit without knowledge of the prior transfer and pendency of the suit, Court may allow such person in an appropriate case to be made a party in the suit considering the fact that the decision in the suit may adversely effect his rights, but in the present case applicants are neither bona fide purchaser nor they purchased the suit property without knowledge of exchange-deeds and pendency of the suits. It was also submitted that the applicants in the garb of party to the suit and amendment in the plaint want to protect and defend their rights as purchaser of suit property and thereby want to expand the scope of the suits which can not legally be permitted. It was brought to the knowledge of the Court that although sale-deeds were executed in the year 2002 and applications were filed in the same year but even then plaintiffs are continuously pursuing all the suits through their power of attorney and plea of non-interest in the suit or collusion with the defendant has not been taken in the applications and, therefore, apprehension shown about it by them is groundless. 6. In support of his submissions, learned counsel for the respondents relied upon the cases of Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay & Ors. reported in (1992) 2 SCC 524 and Bibi Zubaida Khatoon v. Amichand Aggarwal reported in AIR 2004 SC 173 . 7. So far as respondent-plaintiffs are concerned, their counsel submitted that he has no objection if the prayer made by the applicants is allowed. 8. The law relevant for the disposal of these petitions/appeals emerging out from the decisions relied upon by the counsel for the parties may be summarized as below:- (1) Court is empowered to add at any stage of the suit a necessary party or a person whose presence before the Court may be necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. 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 proceedings. (2) The addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case. (2) The addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case. (3) If the person seeking addition has a cause of action against plaintiff relating to the subject matter of the existing action, Court has power to join that person so as to give effect to the object of the provision which is to avoid multiplicity of action, but the main object of the rule is not to prevent multiplicity of suit though it may incidently have that effect. (4) Merely because a person has some relevant evidence to give on some of the questions involved in the suit does not make him a necessary party and at the most that would make him a necessary witness. Similarly, a person cannot be a necessary party merely because he has an interest in the correct solution of some questions involved. (5) A person cannot be made a party unless it is shown by him that the result of the suit may affect him legally i.e. by curtailing his legal rights and not mere his commercial interest. Such person cannot be permitted to be added whose sole object is to prosecute his own cause of action and to protect and defend his rights. (6) Although, a transferee pendent-lite should ordinarily be joined as a party to enable him to protect his interest but in a case where such transfer is without leave of the Court and transfer in his favour is not bona fide, such person cannot, as a right, seek impleadment in the suit as a party. (7) Under Order 22, Rule 10 CPC, a transferee pendent-lite may be joined in the discretion of the Court and not as a right but the power of the Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property but the question is whether the right of such a person may be affected if he is not added as a party and such rights includes only an enforceable legal right. (8) The object of Order 1, Rule 10 CPC is to discourage contests on technical pleas and to save honest and bona fide claimants from being non-suited. (8) The object of Order 1, Rule 10 CPC is to discourage contests on technical pleas and to save honest and bona fide claimants from being non-suited. A bona fide transferee without knowledge of prior transfer or pending suit should ordinarily be joined as party. (9) If the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restrain order passed by the Court or the application is unduly delayed, then the Court is fully justified in declining the prayer for impleadment. 9. If in the light of the aforesaid legal position, prayer of the applicants is considered in the facts of the present cases, no illegality, perversity or impropriety can be said to have committed by the Court below declining their prayer. It is an admitted position that each of the applicants purchased the suit property knowing well that it is subject matter of a registered exchange-deed and suit for cancellation of the same is pending in the Court since 1996 and, therefore, applicants cannot be said to be bona fide purchases in whose favour discretion conferred upon the Court is to be exercised. It cannot also be said that the applicants are bona fide transferee from owner of the suit property and the title, interest and right of the plaintiffs devolved upon them as a result of registered sale-deeds as unless and until the exchange-deeds are held to be fraudulent and cancelled by the Court, plaintiffs could not have claimed to be owner of the suit property and they were not entitled to sell it to applicants or any other person. In the present case, when plaintiffs have filed suits for cancellation of exchange-deeds and permanent injunction, it was expected from them, rather equity required from them, that they will not sell or otherwise transfer the suit property during pendency of the suits and execution of sale-deeds in favour of applicants is clear indication of malafides on their part. In the present case, when plaintiffs have filed suits for cancellation of exchange-deeds and permanent injunction, it was expected from them, rather equity required from them, that they will not sell or otherwise transfer the suit property during pendency of the suits and execution of sale-deeds in favour of applicants is clear indication of malafides on their part. Although, there was no injunction restraining the plaintiffs to transfer the suit property, but they being the party aggrieved from the deeds in question, it was expected from them to keep the state of affairs to exist as they were on the date of the suit and as in defiance thereof alienation has been made by them, Court may treat the same as having not taken place at all and once that is so, applicants cannot claim to be impleaded/substituted as plaintiff on the basis of sale-deeds executed in their favour. In the facts and circumstances of the case, defendant-respondents who presently are owner of the property, can not be compelled to litigate with a person who does not claim that he is a bona fide purchaser in good faith without notice of prior transfer and pendency of the suit. The only question to be decided in each of the suit is whether the exchange-deed was executed fraudulently by misrepresentation as claimed by the plaintiffs. How the presence of applicant as party plaintiff or otherwise would help the Court to effectively decide that question could not satisfactorily be replied by the learned counsel for the applicant. So far as possible non-interest of the plaintiffs to prosecute the suit further after sell of suit property or their collusion with the defendant is concerned, there is no foundation for such an apprehension rather it is clear that the plaintiffs are pursuing the suit continuously in a proper manner even after sell of the suit property and they are represented by their counsel at all stages including in this Court. It is not a case in which there is possibility of plaintiffs being in collusion with the defendant but it is a case in which plaintiffs being in collusion with the applicants sold the suit property to them and applicants purchased it with an object to harass and pressurise the defendant. It is not a case in which there is possibility of plaintiffs being in collusion with the defendant but it is a case in which plaintiffs being in collusion with the applicants sold the suit property to them and applicants purchased it with an object to harass and pressurise the defendant. In the considered view of this Court if the applicants are allowed to be added/substituted as plaintiff it would amount as if Court permitted the plaintiffs to sell and applicants to purchase the suit property before the deeds in question were cancelled and it would not only defeat the ends of justice but also against the public policy. It is not a fit case in which applicants are required to be added or impleaded as plaintiff. 10. Consequently, all the writ petitions and appeals are, hereby, dismissed. The stay applications also stand dismissed.