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Mohammadbhai Sk. Mohsinbhoy and ors. Vs. Trustees for the Improvement of Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtKolkata High Court
Decided On
Case NumberSuit No. 2046 of 1968
Judge
Reported inAIR1984Cal219
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10
AppellantMohammadbhai Sk. Mohsinbhoy and ors.
RespondentTrustees for the Improvement of Calcutta and ors.
Appellant AdvocateDipankar Ghosh and ;Pratap Chatterjee, Advs.
Respondent AdvocateSurhid Roy Chowdhury, Adv. for No. 1 and ;Manju Roy Chowdhury, Adv. for No. 3
DispositionApplication dismissed
Cases ReferredNarayan Chandra Garai v. Matri Bhandaj Pvt. Ltd.
Excerpt:
- .....of the suit premises was entered upon between himself and the defendant no. 3, the owner of the suit property, under which agreement be claims to have paid a sum of rs. 37,656/- to the defendant no. 3.2. the present suit filed by the plaintiffs against, inter alia, the defendant no. 3 is for a declaration that the plaintiffs are entitled to specific performance of an agreement for sale of the suit-property upon payment of the balance sum of the purchase money to the defendants nos. 1 and 2, who had acquired the property under the land acquisition act. it is not disputed that the plain-tiffs purchased the property at an auction sale held by the defendant no. 1, who admittedly bad a statutory right of preemption to purchase the land in the event of the defendants nos. 1 and 2 deciding.....
Judgment:
ORDER

Monjula Bose, J.

1. The petitioner herein seeks to be added as a party-defendant to the proceedings by reason of the fact that during the pendency of the present suit an agreement for sale of the suit premises was entered upon between himself and the defendant No. 3, the owner of the suit property, under which agreement be claims to have paid a sum of Rs. 37,656/- to the defendant No. 3.

2. The present suit filed by the plaintiffs against, inter alia, the defendant No. 3 is for a declaration that the plaintiffs are entitled to specific performance of an agreement for sale of the suit-property upon payment of the balance sum of the purchase money to the defendants Nos. 1 and 2, who had acquired the property under the Land Acquisition Act. It is not disputed that the plain-tiffs purchased the property at an auction sale held by the defendant No. 1, who admittedly bad a statutory right of preemption to purchase the land in the event of the defendants Nos. 1 and 2 deciding to sell the same. The petitioner alleges that although the present proceedings have been instituted in 1967-68, the same has not been disposed of during the last fourteen years and although the evidence in the suit has been concluded, the suit remains part-heard and adjourned. It is urged that the defendant No. 3 is not taking any interest in the proceedings in view of the agreement for sale executed in petitioners favour. It is contended that the right of the petitioner is solely dependent on the outcome of this suit (Suit No. 2046 of 1968), now pending before the Court, and if due to inaction and laches on the part of the defendant No. 3 the interest of the defendant No. 3 is not properly represented in the suit, the petitioner's interest will be greatly prejudiced and/or jeopardised.

3. Mr. Dipankar Ghosh, learned counsel for the petitioner, placed reliance on Razia Begum v. Sahebzadi Anwar Begum, : [1959]1SCR1111 , for the proposition that the question of addition of parties is a matter of judicial discretion to be exercised in the facts and circumstances of a particular case and in order to be added as a party to a suit relating to a property, the applicant should have direct interest as distinguished from commercial interest.

4. Mr. Ghosh has also placed reliance on Effective Trade House (P.) Ltd. v. United Bank of India, (1981) 2 Cal LJ 4, where the Court considered the test for adding a party to a suit and viewed that a person acquiring a direct interest in the subject matter, of the suit under a commercial agreement could sustain a prayer for being added as a party. In that case, a consent older was passed creating a security in favour of the petitioner, subject to the permanent lien of the plaintiff-Bank arising out of an original mortgage. In deciding the question at issue as to whether the petitioner having entered into a contract with the defendant to run a mill, which was the subject matter of the mortgage, by investment of his moneys could be said to have such an interest on the subject matter as would entitle them to be added as a party to the suit, the Court held that in deciding the question it is to be considered whether upon the agreement between the parties the petitioner has got any interest in the plaintiffs security or not. Merely because the plaintiff and the defendant have now agreed to release that part of the security from the original mortgage could not be a ground for holding that the petitioner had no interest in the plaintiff's security.

5. Reliance was also placed by Mr. Ghosh on a Division Bench judgment of this Court in Jayanta Kumar Banerjee v. State of West Bengal, : AIR1981Cal138 , the principles enunciated wherein are that acquisition of interest in property is not the sole test for determining the locus standi to move a writ petition challenging the validity of the order passed under the Land Acquisition Act, but prejudicial affection of a right concerning the property should be the test to determine the locus standi to move a writ petition, the Court further viewed that a person is legally interested in an answer only if he can say that it may lead to the result that would affect him legaly, i. e., by curtailing his rights, and held that in the facts and circumstances of the case the right of the petitioner to enforce a contract for sale would be curtailed and such contract would be frustrated if the property-in-question were to be acquired. In such circumstances, the petitioner was held to have locus standi to question the correctness of the acquisition proceeding because the acquisition of the property would ultimately frustrate the contract.

6. Reliance was also placed on a passagefrom Mulla on Code of Civil Procedure,13th Edition, page 626, where the learnedauthor restated the view of the Court inSampatbai v. Madhu Singh, AIR 1960 MadhPra Section 4, namely the test is not whether thejoinder of the person proposed to he addedas a defendant would be according to oragainst the wishes of the plaintiff, but whether the relief claimed by the plaintiff willdirectly affect the intervener in the enjoyment of his rights In that case, the Courtviewed that the intervener must be directlyand legally interested in the answers to thequestions involved in the case. A person islegally interested in the answer only if hecan say that it may lead to a result that willaffect him legally i. e., by curtailing his legallights.

7. Mr. Pratap Chatterjee, learned counsel appearing for the plaintiff, on the other hand, contends that the applicant is neither a proper nor a necessary party and cites Manmohan Singh v. Sat Narain, AIR 1971 Punj 400. In that case, the Court held that in a suit for specific performance of a sale agreement, a person coming under subsequent sale agreement in respect of the same property should not be added as a party under Order 1, Rule 10 of the Code of Civil Procedure since unlike a purchaser he has no interest in the property and addition of such a person as party will result is misjoinder of parties.

8. Mr. Surhid Roy Chowdhury, learned counsel appearing for the defendant No. 1 has also opposed the application and placed reliance on para 12 of the petition, wherein the petitioner has averred that his right depends on the outcome of the suit and net that the suit cannot be effectively and completely adjudicated upon his absence.

9. Reliance was also placed by Mr. Roy Chowdhury on Dy. Commr., Hardoi v. Rama Krishna Narain : AIR1953SC521 , which is an authority for the proposition that the eventual interest of a party in the fruits of a litigation cannot be held to be the true test of impleading parties under the Code of Civil Procedure. Mr. Roy Chowdhury submits that the crucial test as laid down in that case is whether in the absence of the petitioner the issue in the case can be completely and effectively disposed of, as provided in Order 1, Rule 10 of the Code of Civil Procedure.

10. Miss Monju Roy Chowdhury learned Advocate appearing on behalf of the defendant No. 3 owner, adopts the contentions on behalf of the other respondents and further urges that no person ought to be added as a party merely because he or she would be incidentally affected by the judgment delivered and contends that the main consideration for the Court in exercising its judicial discretion is whether the presence of the petitioner is necessary to enable the Court to effectively and completely adjudicate upon the matter in issue. If the question at issue between the parties can be decided without anyone else being brought on record, a stranger should not be added as a party-defendant, as has been held in Narayan Chandra Garai v. Matri Bhandaj Pvt. Ltd. : AIR1974Cal358 .

11. Having heard the submissions made on behalf of the respective parties and having considered the decisions relied upon by them, I do not see that the petitioner ought to be joined as a plaintiff or a defendant, or that without his presence the question in the suit cannot be effectively and/or completely decided, which two circumstances alone would entitle the petitioner to be added as a party to the proceedings either as a necessary or proper party. I accept the contention of Mr. Pratap Chatterjee that there is no dispute between the petitioner and the plaintiffs, which requires adjudication requiring him to be made a party-defendant to the proceedings.

12. The other important aspect of the matter to my mind is that relief claimed by the plaintiffs will not directly affect the person seeking to intervene in the 'enjoyment of his rights as he has no 'rights', until and unless the defendant No. 3's rights have first been adjudicated upon and found that the defendant No. 3 has a right, title and interest in the property-in-question. The right of the petitioner, if any is based on specula-lion and the matter being lis pendens, his rights will crystallise, only if the fruits of the decree enure to the benefit of the defendant No. 3, Nor do I find that any case is made that the defendant No. 3 is fraudulently suffering a decree against himself in contesting the proceedings. If an ex parte decree is suffered by the defendant No. 3 and/or found that there is collusion between himself and the plaintiffs, it is always open to the petitioner to seek the Court's protection and necessary orders can be passed at any stage of the proceedings.

13. This apart, it is settled law that an agreement for a sale in India does not create any interest in property and the agreement for sale between the defendant No. 3 and the petitioner at best is subject to the adjudication in the pending proceedings. Thus unless shown that the petitioner had a present right and is legally interested in the adjudication between the plaintiffs and the defendants, it could not be said that the result of the proceedings would affect him legally. That the petitioner has no present legal interest and no present legal rights would be apparent by answering the vital question, viz., 'can the petitioner seek specific performance of the contract between himself and the defendant No. 1 during the pendency of the suit and prior to the adjudication thereof in favour of the defendant No. 3 ?' The answer must be an emphatic 'No'.

14. The decision reported in : [1959]1SCR1111 is distinguishable. In any event, the said decision is an authority for the proposition that where the subject-matter, for litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the Court is of the opinion that by adding that party it would be in a better position effectually and completely to adjudicate upon the controversy. In the instant suit, as observed hereinbefore the petitioner has no legal right until adjudication of the suit in favour of the defendant No. 3 and in exercising judicial discretion, in the fact* and circumstances of the case, this Court finds that he is neither a necessary nor a proper party for the purpose of adjudicating whether the plaintiff is entitled to a decree for specific performance in his favour, which is the only point required to be adjudicated in the present suit filed by the plaintiffs.

15. The ratio of (1981) 2 Cal LJ 4 is also not applicable to the facts of the instant case, as rightly pointed out by Miss Roy Chowdhury, inasmuch as in that case a consent order was passed between the petitioner, who sought to be added as a party, and the parties to the proceedings had created a security in favour of the petitioner subject to the permanent lien of the bank arising out of the original mortgage. For deciding the issue as to whether the petitioner should be added as a party, the Court took cognisance of the agreement between the parties and viewed that the petitioner had an interest in the plaintiff's security, and further viewed that the agreement between the plaintiff and the defendant to release that part of the security from the original mortgage could not be a ground for holding that the petitioner has no interest in the plaintiff's security.

16. The decision reported in : AIR1981Cal138 is also of no assistance to the petitioner as therein the Court viewed that the petitioner had a right to challenge the orders passed under the Land Acquisition Act and had locus standi to move a writ petition, inasmuch as his rights might be prejudicially affected. The ratio of the Court appears to be that for determining the locus standi in the writ petition, acquisition of title or interest in the property was not the sole criterion but prejudicial affection of a right should be the test to declare whether the petitioners had locus standi 10 move a writ petition.

17. The contention of the petitioner that the suit filed in 1968 has not yet been disposed of does not give the petitioner any right to be added as a party to the proceedings, if considered neither a proper nor a accessary party. It has not been shown that there has been any dilatory tactices on the part of the defendant No. 3 in preventing the hearing of the said suit and observing the Dairy Cause List of the Court it will be apparent that many old cases are still pending which cannot be held to be by reason of default or negligence of any party-litigant. In any event, in paragraph 12 of the petition, it is alleged that 'if due to inaction and laches the interest of the defendant No. 3 is not properly represented, the interest of the petitioner will be prejudiced'. There is no basis for supposing any inaction and/or laches on the part of the defendant No. 3 and none has been shown.

18. Following the principles enunciated in AIR 1971 Punj 400 in which similar and/or identical facts were present, I respectfully accept the proposition laid down and hold that the petitioner is neither a proper nor a necessary party who is requited to be joined in the proceedings and the proceedings between the plaintiff and the defendants can be effectively and completely disposed of in his absence. The principles enunciated in : AIR1974Cal358 is also of great assistance and applying the principles enunciated therein, this Court views that the petitioner has no right to be made a party to the proceedings merely because his rights, if any, may be affected by the judgment to be delivered and/or the conclusion reached.

19. In this view of the matter, the application is not sustainable and is dismissed with costs.


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