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Uttarakhand High Court · body

2020 DIGILAW 126 (UTT)

Sohan Lal v. Chandani Mathur

2020-02-25

MANOJ K.TIWARI

body2020
JUDGMENT Manoj K Tiwari, J. - Petitioner is the plaintiff in a suit seeking cancellation of decree dated 07.09.2005 passed by Civil Judge (S.D.), Dehradun in Original Suit No. 73 of 2004. 2. Respondent No. 1 moved an application under Order 1 Rule 10 of CPC seeking her impleadment in the said suit, which has been allowed by learned trial court vide order dated 29.03.2016. Petitioner challenged the said order, passed by trial court, by filing revision under Section 115 of CPC. Learned revisional court affirmed the order passed by learned trial court and dismissed the revision vide judgment dated 07.04.2017. Thus, feeling aggrieved by these two orders, petitioner has approached this Court. 3. Learned counsel for the petitioner submits that learned courts below erred in allowing the impleadment application filed by respondent No. 1, as respondent No. 1 is neither necessary nor proper party to the suit. He further submits that since effective decree can be passed even in the absence of respondent No. 1, therefore, he cannot be held to be a necessary party. Mr. Aditya Singh, learned counsel for the petitioner has placed reliance on para 15 and 18 of the judgment rendered by Hon'ble Supreme Court in the case of Mumbai International Airport Private Limited Vs Regency convention Centre and Hotels Private Limited & others, 2010 7 SCC 417 , which are extracted below: "15. A 'necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a 'necessary party' is not impleaded, the suit itself is liable to be dismissed. A 'proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance. 18. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance. 18. In Kasturi, this Court reiterated the position that necessary parties and proper parties can alone seek to be impleaded as parties to a suit for specific performance. This Court held that necessary parties are those persons in whose absence no decree can be passed by the court or those persons against whom there is a right to some relief in respect of the controversy involved in the proceedings; and that proper parties are those whose presence before the court would be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person." 4. Per contra, Mr. Neeraj Garg, learned counsel appearing for respondent No. 1 supports the orders passed by learned trial court as well as learned revisional court. He submits that his client had purchased the property, which was subject matter of Original Suit No. 73 of 2004, and certain rights had flown out of the said decree in favour of his client which is sought to be challenged in the present suit, therefore, his client is a necessary and proper party. He further submits that his client purchased the property on 26.10.1990, prior to the order passed by Assistant Collector 1st Class, Dehradun on 30.07.1991 for exchange of land. He further submits that both the courts below have recorded concurrent findings, which cannot be disturbed by this Court while exercising supervisory jurisdiction under Article 227 of the Constitution. 5. Hon'Ble Supreme Court in the case of Pankajbhai Rameshbhai Zalavadiya Vs Jethabhai Kalabhai Zalavadiya, 2017 9 SCC 700 while dealing with the scope of Order 1 Rule 10 of C.P.C. has held as under:- "17. The expression "to settle all questions involved" used in Order 1 Rule 10 (2) of the Code is susceptive to a liberal and wide interpretation, so as to adjudicate all the questions pertaining to the subject matter thereof. The expression "to settle all questions involved" used in Order 1 Rule 10 (2) of the Code is susceptive to a liberal and wide interpretation, so as to adjudicate all the questions pertaining to the subject matter thereof. The Parliament in its wisdom while framing this rule must be held to have thought that all material questions common to the parties to the suit and to the third parties should be tried once for all. The Court is clothed with the power to secure the aforesaid result with judicious discretion to add parties, including third parties. There cannot be any dispute that the party impleaded must have a direct interest in the subject matter of litigation. In a suit seeking cancellation of sale deed, as mentioned supra, a person who has purchased the property and whose rights are likely to be affected pursuant to the judgment in the suit is a necessary party, and he has to be added. If such purchaser has expired, his legal representatives are necessary parties." 6. Learned trial court has allowed the impleadment application filed by respondent No. 1 in view of the fact that she had purchased part of the property by means of registered sale deed dated 26.10.1990 and also in view of the stand taken by her that she has constructed a room over the subject land in which her watchman resides. 7. Although petitioner had questioned the power of attorney based on which sale deed was executed in favour of respondent No. 1, however, learned trial court has rightly repelled the said contention by holding that it is a subject matter of evidence. 8. This Court does not find any error in the reasoning given by learned trial court. Even otherwise also, scope of interference with discretionary power of learned trial court is very limited. More so, when such orders are challenged under supervisory power under Article 227 of the Constitution of India. Hon'ble Supreme Court in the case of Subodh Kumar Gupta & others Vs Alpana Gupta & others, 2005 11 SCC 578 has held as under:- "3. Having heard the learned counsel for the parties, we are satisfied that the order passed by the High Court cannot be sustained. The trial court had exercised its discretion and assigned reasons for permitting impleadment. Having heard the learned counsel for the parties, we are satisfied that the order passed by the High Court cannot be sustained. The trial court had exercised its discretion and assigned reasons for permitting impleadment. In exercise of limited jurisdiction conferred by Article 227, the High Court should not have interfered with the discretion exercised by the trial court. Even otherwise, having heard the learned counsel for the parties, we are satisfied that the impleadment of wife, daughters and HUF of Subodh Kumar Gupta is justified on the facts and in the circumstances of the case." 9. For the aforesaid reasons, there is no scope of interference in the present writ petition. Accordingly, writ petition is dismissed. Interim order, if any, stands vacated.