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2023 DIGILAW 410 (JK)

Gulzar Ahmad Dar v. State Of J&K

2023-08-18

SANJAY DHAR

body2023
JUDGMENT : 1. This is an application filed by Shahida Parveen and Nargis Mir Daughters of Ghulam Ahmad Dar praying for their impleadment as petitioners to the main writ petition. 2. According to the applicants, M/s Dar Sons Kashmir Tanneries, Srinagar is a partnership firm that was constituted in terms of partnership deed executed on 24th July, 1980. It is pleaded that Haji Ghulam Ahmad Dar, Ghulam Mohammad Dar, Shahjahan Begum and Shahida Parveen were partners of the aforesaid partnership firm. It has been submitted that Haji Ghulam Ahmad Dar, Ghulam Mohammad Dar and Shahjahan Begum have since expired. According to the applicants, Gulzar Ahmad Dar projecting himself as the Managing Partner of the firm M/S Dar Sons has filed the instant writ petition, though he is not the Managing Partner of the firm. It is pleaded that initially the writ petition was filed only by , Gulzar Ahmad Dar but lateron another partner of the firm, Zafar Ahmad Dar, who happened to be the legal heir of Ghulam Ahmad Dar sought his impleadment as party petitioner to the writ petition and vide order dated 21.04.2012 he was arrayed as petitioner No.2 to the writ petition. On these grounds it has been submitted that applicant Shahida Parveen, who is also a partner of the firm, as also applicant Nargis Mir, who is legal heir of partner Haji Ghulam Ahmad Dar, deserve to be impleaded as petitioners in the writ petition. 3. The application has been contested by the original writ petitioner by filing a reply thereto. In his reply the original writ petitioner has, while admitting the existence of partnership deed dated 23rd July, 1980, submitted that Haji Ghulam Ahmad Dar, Ghulam Mohammad Dar, Zafar Ahmad, Shahjahan Begum and Shahida Parveen were partners of the firm. The writ petitioner has submitted that Haji Ghulam Ahmad Dar, Ghulam Mohammad Dar, Zafar Ahmad, Shahjahan Begum and Shahida Parveen were partners of the Firm M/s Dar Sons, out of which Ghulam Mohammad Dar, Ghulam Ahmad Dar, Shahjahan Begum and Zafar Ahmad have expired. The writ petitioner has submitted that Haji Ghulam Ahmad Dar, Ghulam Mohammad Dar, Zafar Ahmad, Shahjahan Begum and Shahida Parveen were partners of the Firm M/s Dar Sons, out of which Ghulam Mohammad Dar, Ghulam Ahmad Dar, Shahjahan Begum and Zafar Ahmad have expired. It has been contended that applicant Shahida Parveen Shahnaz Parveen, Shahzada, Shahida, Sabia, Sahira and applicant Nargis executed power of attorney dated 06.01.2003 and appointed the writ petitioner Gulzar Ahmad Dar as their lawful attorney empowering and authorizing him to act to sell, mortgage or lease out to any person or bank their share of partnership business and to execute the necessary documents in this behalf. It has been further submitted that Mst. Zaina one more daughter of Ghulam Ahmad Dar has executed a general power of attorney dated 06.01.2003 in favour of her brother Gulzar Ahmad Dar, whereby similar powers have been given by the principal in favour of the attorney. Similarly, another partner Ghulam Mohammad Dar has executed similar power of attorney in favour of Gulzar Ahmad Dar on 19.09.2005. 4. It is contended that on the strength of the aforesaid power of attorney, a supplementary partnership deed was executed by Ghulam Mohammad Dar, Shahida, Shahzada, Sabia, Sahira, Nargis and Shahjahan Begum through their attorney namely Gulzar Ahmad Dar on 04.07.2007, whereby these persons have transferred their respective shares of partnership business to Saba Dar and it has been provided that these persons are deemed to have retired from partnership firm and their rights and liabilities are deemed to have extinguished and vested with Saba Dar. It has been further contended that in terms of this supplementary partnership deed, Saba Dar has been put in possession of the assets of the partnership by the aforesaid persons and in lieu of their surrender and retirement from partnership business, they have been indemnified and compensated to their satisfaction by Saba Dar. On the basis of these submissions it has been submitted that the applicant, Shahida Parveen and Nargis Mir have no share in the partnership business and, therefore, they have no right to seek their impleadment as party petitioners in the writ petition. 5. The applicants have filed the supplementary affidavit in which they have contended that the documents like power of attorney and supplementary partnership deed are fraudulent documents and have not been registered at all. 5. The applicants have filed the supplementary affidavit in which they have contended that the documents like power of attorney and supplementary partnership deed are fraudulent documents and have not been registered at all. It has been further submitted that the applicants have not executed these documents. The applicants have further submitted that they have filed a suit challenging these documents before 2nd Additional Munsiff Srinagar and on 08.02.2023, while issuing notice of the said suit to the writ petitioner and his wife, the Court has passed an interim order, whereby the operation of general power of attorney dated 06.01.2003 and supplementary partnership deed dated 4th July 2007 has been kept in abeyance. On these grounds it has been contended that the documents relied upon by the writ petitioner to deny their right to fruits of instant writ petition cannot be considered. 6. I have heard learned counsel for the parties and perused the record of the case. 7. The writ petition was initially filed by Shri Gulzar Ahmad Dar claiming himself to be partner of M/s Dar Sons. Lateron, an application came to be made by Zafar Ahmad Dar claiming to be partner of the aforesaid firm. The said application was conceded by the original writ petition Gulzar Ahmad Dar and accordingly Zafar Ahmad Dar was impleaded as petitioner No.2 vide order dated 19.04.2012. However, during the pendency of the writ petition Zafar Ahmad Dar has died and his legal heirs have been brought on record. 8. The writ petition has been filed by the petitioner challenging Government Order No.66-Ind of 2003 dated 06.03.2003, whereby lease deed dated 11.04.1980 executed by the Government in favour of M/S Dar Sons has been cancelled. Challenge has also been thrown to communication dated 31.10.2007 issued by respondent No.3 to M/S Dar Sons asking it to handover the possession of the premises to J&K Industries Department. Certain other reliefs have also been prayed by the petitioners. 9. According to the original writ petitioner, Gulzar Ahmad Dar, the applicants have executed irrevocable power of attorney in his favour, whereby they have authorized him, inter alia, to sell and assign their shares in the partnership business to any person or bank. Certain other reliefs have also been prayed by the petitioners. 9. According to the original writ petitioner, Gulzar Ahmad Dar, the applicants have executed irrevocable power of attorney in his favour, whereby they have authorized him, inter alia, to sell and assign their shares in the partnership business to any person or bank. It has been also contended by the original writ petitioner that in pursuance of said power of attorney the petitioner has executed a supplementary partnership deed according to which the applicants are deemed to have retired from partnership firm and their shares are deemed to have vested in Saba Dar. In short, the case of the original writ petitioner is that the applicants have no right, title or interest in the subject matter of the writ petition. This is being disputed by the applicants according to whom they have not executed any such document in favour of original writ petitioner or in favour of Saba Dar. They have also contended that these documents are under challenge in a suit filed by them before the civil Court and interim order has been passed whereby the Court has directed that these documents are not to be acted upon. 10. In view of the rival contentions of the parties there appears to be a serious conflict of interest between the original petitioner on one side and the applicants on the other. Although exercise of power under Order 1 Rule 10 of CPC for striking out or adding parties is discretionary in nature but such discretion has to be exercised in a reasonable manner. A party can be added as a co-plaintiff or co-petitioner when the plaintiff/petitioner does not dispute the right of co-plaintiff or co-petitioner to the decree or the ultimate relief which may be passed in a case, but where the right to the subject matter of the writ petition or a suit is seriously disputed by the original writ petitioner/plaintiff, the proper procedure would be to join such applicant as a defendant/respondent to the writ petition. The principle in such matters is that original writ petitioner/plaintiff is dominus litis and he cannot be compelled to proceed with the suit or the writ petition with the co-petitioner/co-plaintiff with whom such petitioner/plaintiff may have a conflict of interest. 11. In view of the above, the prayer of the applicants that they should be impleaded as co-petitioners cannot be accepted. 11. In view of the above, the prayer of the applicants that they should be impleaded as co-petitioners cannot be accepted. The same is accordingly declined. But having regard to the fact that the applicants have serious dispute with regard to the present writ petitioner as also to the relief prayed to their exclusion, it would be appropriate in the facts and circumstances of the case to implead the applicants as respondents. 12. Accordingly, the applicants Shahida Parveen and Nargis Mir are impleaded as respondents No.11 and 12 to the instant writ petition. The memo of parties be accordingly updated. The newly added respondents shall be at liberty to file their reply to the writ petition by next date of hearing. CM No.7364/2022 shall stand disposed of. 13. Writ petition be listed on 21.09.2023.