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2023 DIGILAW 882 (CAL)

Amit Kedia v. Pradip Kumar Agarwal

2023-06-07

AJOY KUMAR MUKHERJEE

body2023
JUDGMENT : AJOY KUMAR MUKHERJEE, J. 1. Being aggrieved and dissatisfied with order no. 21 dated 15.02.2023 passed by Learned Civil Judge (Senior Division), Jalpaiguri, in Title Suit no. 65 of 2022, present application under Article 227 of the Constitution of India has been preferred. By the impugned order Learned court below allowed the petitioner’s (opposite party no 5 herein) application under order I Rule 10(2) of the Code of Civil Procedure, 1908 (hereinafter called as CPC). 2. Petitioners contended that the petitioners as plaintiffs instituted aforesaid suit for declaration of title, eviction, recovery of khas possession, cancellation of sell deeds of the defendants and for injunction along with other reliefs. In the plaint plaintiffs have pleaded as to how plaintiffs acquired the suit property measuring about 0.3146 acres by way of registered deeds of conveyance executed by their vendors. Their names have been duly recorded in the L.R Record of Rights. It has also been pleaded in the plaint that defendants have forcibly entered into the suit property and forcibly dispossessed the petitioners/plaintiffs on 15.02.2022. Plaintiffs have further disclosed in the plaint that in the last part of 2021 they came to learn that the defendants unlawfully mutated said land in their names on the strength of four purported sale deeds. In the above back drop-plaintiff shave filed aforesaid suit. In the said suit the defendants appeared and filed written statement denying-plaintiffs’ title in suit-property and in paragraph 22, defendants-have pleaded that defendants are lawful owner of the land measuring about 12 Kathas 3 Chataks and they have acquired the same from the rightful owners who were the owners in possession of the same and after acquiring title they have started construction of amultistoried building on the suit property. In the said suit Plaintiffs also filed injunction application and after hearing the parties, the court below directed both the parties to maintain status-quo in respect of nature character and possession and also in respect of alienation of the suit property, till disposal of the suit. 3. Petitioner’s further case is all of a sudden, the opposite party no. 5 herein/developer/petitioner namely P.R.M. Real State Pvt. Ltd. filed an application seeking leave to appeal against aforesaid order of injunction in the form of status-quo dated 16.08.2022 and the Division Bench of this court passed a judgment on 16.09.2022 in F.M.A.T. No 13 of 2022. 3. Petitioner’s further case is all of a sudden, the opposite party no. 5 herein/developer/petitioner namely P.R.M. Real State Pvt. Ltd. filed an application seeking leave to appeal against aforesaid order of injunction in the form of status-quo dated 16.08.2022 and the Division Bench of this court passed a judgment on 16.09.2022 in F.M.A.T. No 13 of 2022. Meanwhile aforesaid petitioner also filed aforesaid application under order I rule 10(2) of C.P.C for impleadment as a defendant in the said suit, contending that he has entered into a development agreement with defendant No. 2 to 4 along with one Seema Agarwal for construction of G+4 storied commercial building on 01.09.2021 and he started construction after due sanction of the building plan and he has already invested more than Rupees two crores and have already completed construction of more than eighty percent of the building. 4. Plaintiffs filed written objection against that application contending that nowhere in the written statement defendants have disclosed that they have entered into any such development agreement with the opposite party No. 5 herein. Moreover even if any plan for construction is found issued by Panchayet, it has been issued in the name of contesting defendants and not in the name of opposite party No. 5, though according to Plaintiffs such plan is not binding upon them. The Plaintiffs/petitioners herein further contended in their written objection that said opposite party No. 5/developer is a stranger to the instant suit. They further pointed out clause 7 and 8 of development agreement dated 01.09.2021, which provided for arbitration clause, stating if any dispute arises in between defendants and developer the same shall be referred to arbitration. Moreover appropriate relief can also be sought for by developer in a separate suit against defendants, if there be any reciprocal contractual obligations. Further contention is that developer is engaged only to develop building and as such developer/opposite party No. 5 must not have acquired any right towards land in question and as such developer is neither a proper party nor a necessary party in the instant suit. 5. Further contention is that developer is engaged only to develop building and as such developer/opposite party No. 5 must not have acquired any right towards land in question and as such developer is neither a proper party nor a necessary party in the instant suit. 5. However learned court below by the impugned order allowed the said application on the basis of findings that in case if the suit is decreed and the developer/petitioner is found to be in possession of the disputed property, no effective relief can be given to the plaintiffs, unless the developer/petitioner is arrayed as a defendant in the suit. 6. Mr. Amles Roy Learned counsel on behalf of the petitioners/plaintiffs submits that the court below is substantially in error in arriving at the findings that in case, if the suit is decreed, no effective relief can be given to the plaintiffs in the absence of developer. Plaintiff being dominuslitis may choose the persons against whom he wishes to litigate and he cannot be compelled to sue a person against whom he does not seek any relief. Infact the developer/petitioner is neither a necessary party nor a proper party in the present suit, in as much as, the present suit has been filed to adjudicate the real controversy between the parties, having regard to the title and possession of the suit property and effective decree can very well be passed even in the absence of the petitioner/developer, since the developer is not even a proper party in the present suit in as much as, presence of the developer would not enable the Learned Court to adjudicate the title and possession in respect of the suit property. No right title or interest as regards the suit property has been transferred and/ or alienated by the opposite parties /defendants in favour of developer/petitioner namely P.R.M Real Estate Pvt. Ltd. It is further submitted that order of injunction has been granted in favor of plaintiffs/petitioners in respect of the suit property after considering plaintiffs’/petitioners’ chain deeds and the defendants/opposite parties with mala-fide motive have implanted the developer in the instant case. In fact all controversies arising in the present suit and all issue arising thereunder can be determined finally and set at rest, in absence of the developer, whose interest has no nexus to the subject matter of suit and the court below ought to have appreciated that the analogy laid down in order XXII Rule 10 read with section 146 of the CPC cannot be extended and applicable in case of present developer. Accordingly he has prayed for setting aside the order impugned. 7. Mr. Saptangshu Basu Learned counsel appeared on behalf of the opposite party No.5/ developer contended that the developer/ petitioner is a proper party as he has able to show a fare semblance of interest coupled with possession. Since developer is in possession of the property, no effective decree can be passed in the absence of the developer. He further contended that joinder of party cannot depend solely on whether he has an interest in the suit property or not. The question is whether the right of a person may be affected, if he is not joined. Accordingly court below was justified in allowing the petitioner’s prayers for adding him as a party in the suit. In this context Mr. Basu relied on paragraph 49 of Sita C Private Ltd. vs. The Statesman Ltd. 1993 SCC Online Cal 148, Aliji Momonji and Co. vs. Lalji Mavji and Others, (1996) 5 SCC 379 (Paragraph-5), Acquo Borewell Pvt. Ltd. vs. Swayam Prabha and Others (Paragraph-6), Amit Kumar Shaw and Another vs. Farida Khatoon and Another, (2005) 11 SCC 403 (paragraphs-9, 10, 16). 8. From a plain reading of the expression “all the questions involved in the suit” used in order I, Rule 10 (2) C.P.C makes it clear that legislature meant only those controversies raised as between the parties to the suit, with regard to the right which is set up and the relief claimed by one side and denied by the other and not the controversies which may arise between plaintiffs or the defendants inter se or questions between the parties to the suit and a third party. Accordingly the court has no jurisdiction to add a party unless he is a necessary or proper party. Accordingly the court has no jurisdiction to add a party unless he is a necessary or proper party. It is well settled that a necessary party is one without whom no order can be made effectively and proper party is one whose presence is necessary for complete and final decision on the questions involved in the proceeding. Needless to say that in the present proceedings plaintiff in his plaint has claimed that he has become owner of the suit property through the chain of his title deeds and he was in possession of the same since before filing of the suit when he was dispossessed by the defendants. As such he has filed the aforesaid suit for a declaration that he is absolute owner in respect of the suit property and also for recovery of the khas possession after evicting the defendant from suit property and also for declaring that the defendant sare trespassers and for injunction and also for cancellation of the defendant’s deeds. On the contrary the defendants contention in the said suit is that the defendants by virtue of the registered sale deeds became owner and are in possession of the total land measuring 12 khata 3 chatak and since the day of purchase they are uninterruptedly possessing and enjoying the land under common boundary without any interference and objection from any corner. They are jointly developing the said property measuring about 12 khata 3 chatak by constructing multi storied building and said construction is still going on. Accordingly issue to be adjudicated in the instant suit is who are the owner in respect of the said property when both the parties have claimed right title interest and possession in the said property. 9. The question as to whether developer is a necessary or proper party or not is to be decided keeping in mind the scope of the suit. The question that is to be decided in the present suit is about right, title possession of the parties in respect of suit property. Keeping the principles as stated above a developer’s interest in the property is directly dependent upon the success of the defendants in the said suit. The question that is to be decided in the present suit is about right, title possession of the parties in respect of suit property. Keeping the principles as stated above a developer’s interest in the property is directly dependent upon the success of the defendants in the said suit. Though the developer has claimed that in the development agreement there are arbitration clause and there is specific provision that the defendants agreed to indemnify the developer against any or all claims made by any 3rd party in respect of the said land and as such he has direct interest in the said property as well as in the ultimate outcome of the said suit but fact remains in the absence of pleading the question of indemnifying the developer by the defendants is not the subject matter in the present suit. The developer might be incidentally affected by the injunction order or that he may be indirectly affected by the judgment that may eventually be passed or that he may have indirect interest in the fruits of the litigation but all these are irrelevant factors for his impleadment. As a rule the court should not add a person as defendant in a suit when the plaintiff is opposing to such addition. The reason is that the plaintiff is dominus litis and he is the master of the suit. He cannot be compelled to fight against whom hedoes not claim any relief. In any event if the developer is not impleaded in the present suit the result of the suit will not be binding upon the developer who has his remedy to file independent suit or any other appropriate proceeding before appropriate authority and raise the objection as taken in this application for addition of party. Even in an execution proceeding arising from a decree, if any, passed in the present suit, the opposite party no. 5/ developer would not be remediless, in the event he has an actual legal right in the suit property. 10. The case law cited by learned counsel on behalf of opposite party no. 5 is not applicable in the present context, since in the proceeding in Amit Kumar Shaw Case (Supra) the question was whether the right of a person who might be affected if he is not added as a party, has a right which is an enforceable legal right. 5 is not applicable in the present context, since in the proceeding in Amit Kumar Shaw Case (Supra) the question was whether the right of a person who might be affected if he is not added as a party, has a right which is an enforceable legal right. In the present case since the defendant’s title in the property is subject to the fate of the litigation, it cannot be said that at this moment, developer has acquired any enforceable legal right against the defendants. The case law cited on behalf of opposite party no. 5 in Acqua Borewell Pvt. Ltd. case (supra) is also not applicable in the present context as in the said case plaintiffs also admitted that the proposed defendants are necessary and proper parties, and for which court observed that before granting any injunction, the proposed defendants claiming right title interest on the basis of the development agreement, ought to have been given an opportunity of being heard. The case law cited by him in Aliji Momonzi and company case (supra) is also not applicable in the present context because in the said case it was held, in the event of the demolition of the building, right title interest of the land lord would be directly affected and therefore land lord is a proper party even though no relief has been sought for against him. 11. Accordingly revisional application being C.O. 27 of 2023 is allowed and orders impugned dated 15.02.2023 is hereby set aside. The opposite party no. 5/developer’s name is expunged from the cause title of the plaint of Title Suit no 65/2022 pending before learned Civil Judge, (Senior Division) Jalpaiguri. 12. It is made clear that the present order will not prevent the opposite party no. 5 herein from enforcing his rights, if any, in accordance with law before appropriate authority. There will be no order as to costs. 13. Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.