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Madhya Pradesh High Court · body

2025 DIGILAW 145 (MP)

Anil Jain v. Rajendra Kumar Agarwal

2025-02-27

MILIND RAMESH PHADKE

body2025
ORDER : The present petition, under Article 227 of the Constitution of India , has been filed by the petitioners being aggrieved by the order dated 05.07.2023 passed by XI District Judge, Gwalior in Case No.06 of 2014 (RCSA); whereby, application under Order 7 Rule 14 of CPC ; application under Order 13 Rule 10 of CPC and application under Order 1 Rule 10 of CPC preferred by the petitioners/plaintiffs have been rejected. 2. Short facts of the case are that the present petitioners had filed a civil suit for declaration and permanent injunction as well as the sale deed dated 10.04.2013 to be declared null and void. It has been averred in the plaint that respondent No.1/Rajendra Kumar Agrawal had executed an agreement to sell the property/shop to the petitioners. Respondent No.1 had filed the written statement denying all the averments made in the plaint. It has been averred therein that defendant No.1 had agreed to sell the property for consideration of Rs.25,00,000/- and on the date of agreement i.e. 06.01.2012, defendant No.1 had received Rs.2,00,000/- from the plaintiff and the remaining amount of Rs.23,00,000/- was agreed to be paid at the time of execution of sale deed; a condition to that effect was also recorded in the said agreement that time limit for execution of sale deed by defendant No.1 would be three months after termination of the dispute. After the agreement, defendant No.1 had received Rs.50,000/- from the plaintiff on 01.03.2012 in cash and had assured that soon, he would get the case pending before the Court filed by the daughters of Chirongilal resolved. The plaintiff through his Advocate had sent a legal notice dated 22.03.2012 to defendant No.1 through registered post wherein it was mentioned that Rs.2,50,000/- had been received by defendant No.1 towards agreement and in relation to the agreed property, the daughters of Chirongilal had filed a First Appeal No.123 of 2011 before this Court in which order dated 07.03.2012 of maintain status quo of the property in question by the parties has been passed, due to which, there was an obstacle in execution of sale deed, therefore, after getting the said obstacle removed, the remaining sale amount should be received from the plaintiff and the sale deed would be executed. The respondent No.1 had neither sent any reply to the said legal notice nor any information regarding the status of the case filed by the daughters of Chirongilal by 30.11.2012 was given. Thereafter, the respondent No.l had sold the property to respondent No.2/Gopal Sangi after the agreement, therefore, he had also been made as a party in the proceedings. The suit had been filed by the petitioner on 30.09.2013. During the pendency of the suit, as respondent No.2/Gopal Sangi died on 01.05.2021 and there is no any legal heirs, therefore, the petitioners had filed an application under Order 22 Rule 4 of CPC . The said application, which has not been objected by the respondent No.1 nor LRs of respondent no.2/Gopal Sanghi, was allowed vide order dated 10.01.2022. 3. The petitioner had filed an application under Order 7 Rule 14 of CPC for taking the certified copy of the documents on record which had been obtained during pendency of the suit. The respondent No.2 had not filed any reply to the said application. 4. The petitioner had also filed an application under Order 13 Rule 10 of CPC for calling of record of a disposed of case from the Court. The respondent No.2 had also not replied to the said application and respondent No.1 had filed reply and had denied all the averments made in the application. The petitioner came to know from the Municipal Corporation Gwalior that alongwith LRs of Gopal Sangi, name of one Sanjay Sangi was also mutated in the municipal records as owner, therefore, the petitioner in order to bring this fact on record haad filed the aforesaid application before the Trial court. 5. Learned Trial Court, after considering the averments of the parties and hearing the parties, rejected both the applications vide impugned order. Hence, the present petition. 6. Shri N.K. Gupta - learned Senior Advocate alongwith Shri Kamal Kumar Jain - Advocate for the petitioners had argued before this Court that the learned Trial Court without considering the documents which were placed by the petitioners/plaintiffs to be taken on record for adjudication of the matter, had rejected the applications which is per se illegal. 7. 6. Shri N.K. Gupta - learned Senior Advocate alongwith Shri Kamal Kumar Jain - Advocate for the petitioners had argued before this Court that the learned Trial Court without considering the documents which were placed by the petitioners/plaintiffs to be taken on record for adjudication of the matter, had rejected the applications which is per se illegal. 7. It was further argued that though plausible explanation was afforded by the petitioner/plaintiff for not bringing those documents at earlier point of time but without considering the aforesaid explanation, the said application has been rejected, which is per se illegal. 8. It was further argued that certain documents which were part of the record are the Court proceedings were not available with the petitioner at the time of the filing of the suit and since those documents were relevant for the purpose of determining the controversy between the parties, the same were required to be taken on record. 9. It was further argued that as per Order 1 Rule 10 of CPC when it is necessary that in the order to enable the Court and completely to adjudicate and settle all the question a party is requireed to be added, but the learned trial Court while deciding the said application had held that the proposed name Sanjay Sangi is mutated in the municipal record as owner therefore, his is not a necessary party which is illegal, as without any documentary evidence, no name could be mutated in the municipal records. 10. On the basis of the aforesaid arguments, it was prayed that the present petition be allowed and the order dated 05.07.2023 be set aside. 11. Per contra, learned counsel for the respondent No.1 while supporting the order impugned has opposed the prayer so made by learned counsel for the petitioners by submitting that no illegality or perversity has been committed by the learned Trial Court in passing the impugned order. It was thus prayed that the present petition be dismissed. 12. Heard counsel for the petitioner and perused the record. 13. In the present case, the petitioner/plaintiff had filed certain copies of the documents alongwith the application under Order 7 Rule 14(3) of CPC which as per the application were not available with the petitioner at the time of the filing of the suit. 14. 12. Heard counsel for the petitioner and perused the record. 13. In the present case, the petitioner/plaintiff had filed certain copies of the documents alongwith the application under Order 7 Rule 14(3) of CPC which as per the application were not available with the petitioner at the time of the filing of the suit. 14. This Court in the matter of Smt. Kamlabai & Another vs. Ghanshyam Shrotiya & Others [ Writ Petition No.7864 of 2014, decided on 08.09.2015 ] has held that "now such document may be received in evidence with the leave of the Court, which the Court shall grant in genuine cases. Thus, if any document or a copy thereof could not be filed with the plaint, it may be received in evidence with the leave of the Court, which the Court shall grant in genuine cases. Rigour of the Rule does not apply to the documents which are sought to be adduced for one of the corroborative evidences in support of the claim made in the plaint. Order 7 Rule 14(3) of CPC enables the Court to receive the documents which are not filed along with the plaint in genuine cases. Obviously the object of this provision is to avoid delay.” 15. In view of the said judgment, it is clear that when documents are necessary, the application may be allowed even if it is belatedly filed. The genuineness of documents etc. cannot be gone into at this stage. 16. The Hon'ble Supreme Court in the matter of Smt. Rani Kusum vs Smt. Kanchan Devi And Others passed in Civil Appeal No.5066 of 2005, decided on 16 August, 2005 has held that "no person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. [See: Blyth v. Blyth reported in 1966 (1) All E.R. 524 (HL)] . A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. [See:- Shreenath and Anr. v. Rajesh and Ors. [See: Blyth v. Blyth reported in 1966 (1) All E.R. 524 (HL)] . A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. [See:- Shreenath and Anr. v. Rajesh and Ors. reported in AIR 1998 SC 1827 ]. Procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. 16. This Court, in the light of aforesaid judgments, holds that the present application under Order 7 Rule 14(3) of CPC deserves to be allowed and accordingly is hereby allowed. As the respondent/defendant will have sufficient opportunity to file application before the learned Trial Court for further cross-examination of the witnesses of the aforesaid documents and will have every opportunity to adduce evidence in rebuttal at the time of hearing of the matter, therefore, no prejudice or grave injustice would be caused to the respondents. Accordingly, the present petition to this extent is allowed 17. So far rejection of the application under Order 1 Rule 10 of CPC is concerned, the object of Order 1 Rule 10 of CPC is to enable the Court to add any person as a party at any stage of the proceedings if a person whose presence before the Court is necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit. Avoidance of the multiplicity of the proceedings is also one of the objects of the said provisions. In a civil suit so long as question of grant of relief sought for can be decided in the presence of the parties appearing before the Court, the Court will not consider any one other than such a litigant as a necessary party; thus, the legal position which emerges is that addition of a party may be allowed when it is found by the Court that party sought to be added as a necessary party or a proper party in whose absence the suit cannot be decided or no effective decree can be passed. 18. The Hon'ble Supreme Court in the matter of Mumbai International Airport Private Limited Vs. 18. The Hon'ble Supreme Court in the matter of Mumbai International Airport Private Limited Vs. Regency Convention Centre and Hotels Private Limited & Others reported in (2010) 7 SCC 417 has held as under: “8. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of CPC which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below: "Court may strike out or add parties. (2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added." The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the question involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party. 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. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party. 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. 12. Let us consider the scope and ambit of Order I of Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo moto or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice. This Court in Ramji Dayawala & Sons (P) Ltd. vs. Invest Import - 1981 (1) SCC 80 , reiterated the classic definition of `discretion' by Lord Mansfield in R. vs. Wilkes - 1770 (98) ER 327, that `discretion' when applied to courts of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, `but legal and regular'. We may now give some illustrations regarding exercise of discretion under the said Sub-Rule. 12.1) If a plaintiff makes an application for impleading a person as a defendant on the ground that he is a necessary party, the court may implead him having regard to the provisions of Rules 9 and 10(2) of Order I. If the claim against such a person is barred by limitation, it may refuse to add him as a party and even dismiss the suit for non-joinder of a necessary party. 12.2) If the owner of a tenanted property enters into an agreement for sale of such property without physical possession, in a suit for specific performance by the purchaser, the tenant would not be a necessary party. But if the suit for specific performance is filed with an additional prayer for delivery of physical possession from the tenant in possession, then the tenant will be a necessary party in so far as the prayer for actual possession. 12.3) If a person makes an application for being impleaded contending that he is a necessary party, and if the court finds that he is a necessary party, it can implead him. If the plaintiff opposes such impleadment, then instead of impleading such a party, who is found to be a necessary party, the court may proceed to dismiss the suit by holding that the applicant was a necessary party and in his absence the plaintiff was not entitled to any relief in the suit. If the plaintiff opposes such impleadment, then instead of impleading such a party, who is found to be a necessary party, the court may proceed to dismiss the suit by holding that the applicant was a necessary party and in his absence the plaintiff was not entitled to any relief in the suit. 12.4) If an application is made by a plaintiff for impleading someone as a proper party, subject to limitation, bonfides etc., the court will normally implead him, if he is found to be a proper party. On the other hand, if a non-party makes an application seeking impleadment as a proper party and court finds him to be a proper party, the court may direct his addition as a defendant; but if the court finds that his addition will alter the nature of the suit or introduce a new cause of action, it may dismiss the application even if he is found to be a proper party, if it does not want to widen the scope of the specific performance suit; or the court may direct such applicant to be impleaded as a proper party, either unconditionally or subject to terms. For example, if `D' claiming to be a co-owner of a suit property, enters into an agreement for sale of his share in favour of `P' representing that he is the co-owner with half share, and `P' files a suit for specific performance of the said agreement of sale in respect of the undivided half share, the court may permit the other co-owner who contends that `D' has only one-fourth share, to be impleaded as an additional defendant as a proper party, and may examine the issue whether the plaintiff is entitled to specific performance of the agreement in respect of half a share or only one-fourth share; alternatively the court may refuse to implead the other co-owner and leave open the question in regard to the extent of share of the vendor-defendant to be decided in an independent proceeding by the other co-owner, or the plaintiff; alternatively the court may implead him but subject to the term that the dispute, if any, between the impleaded co-owner and the original defendant in regard to the extent of the share will not be the subject matter of the suit for specific performance, and that it will decide in the suit, only the issues relating to specific performance, that is whether the defendant executed the agreement/contract and whether such contract should be specifically enforced. In other words, the court has the discretion to either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party.” 19. The learned Trial Court vide order dated 05.07.2023 had rejected the application under Order 1 Rule 10 of CPC by observing as under: 20. This Court after perusing the impugned order as well as the record appended and going through the judgment passed by the Apex Court in the matter of Mumbai International Airport Private Limited Vs. The learned Trial Court vide order dated 05.07.2023 had rejected the application under Order 1 Rule 10 of CPC by observing as under: 20. This Court after perusing the impugned order as well as the record appended and going through the judgment passed by the Apex Court in the matter of Mumbai International Airport Private Limited Vs. Regency Convention Centre (supra) finds that the presence of Sanjay Sanghi is not necessary to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit, as he is neither necessary party nor proper party, and therefore the learned trial Court has not committed any error in rejecting the application under Order 1 Rule 10 read with Section 151 of CPC preferred by the petitioner, as the findings arrived by it in rejecting the application are based on facts available on record, therefore, are impeccable and the conclusion has been drawn after applying correct principle of law. As a consequence thereof, the application under Order 13 Rule 10 of CPC is dismissed as infructuous. Accordingly, the present petition to this extent is hereby dismissed. 20. As a result, the present petition is partly allowed.