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Narayan Chandra Garai and ors. Vs. Matri Bhandar Pvt. Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtKolkata High Court
Decided On
Case NumberSuit No. 2200 of 1969
Judge
Reported inAIR1974Cal358,78CWN555
ActsCode of Civil Procedure (CPC) , 1903 - Order 1, Rule 10(2) - Order 39, Rule 4 - Order 40, Rule 1
AppellantNarayan Chandra Garai and ors.
RespondentMatri Bhandar Pvt. Ltd. and anr.
DispositionPetition dismissed
Cases ReferredBour Baud v. Bour Baud
Excerpt:
- .....court effectually and completely to adjudicate upon and settle all the questions involved in the suit the added.' it would appear, therefore, that persons may be added as a party only in two cases viz., (1) when he or she ought to have been joined as a defendant and is not so joined. (2) when without her presence the question in the suit cannot be completely decided. it is not even, contended that the petitioner ought to have been joined as a defendant or that her presence is in any way necessary to adjudicate effectually and completely the questions involved in this suit. she is neither a proper nor a necessary party. apparently a person is not to be added as a defendant merely because he or she would be incidentally affected by the judgment. reference may be made to the case of moser.....
Judgment:
ORDER

Sudhamay Basu, J.

1. This is a petition by (1) Sm. Annapurna De, inter alia, to be added as a party defendant in suit and for an order vacating and/or setting aside an order of injunction dated the 9th September, 1969.

2. The case made out by the petitioner is, as would appear from the affidavit of one Sudhangshu Kumar Seal affirmed on the 14th September, 1973 in support of the petition, that she is a widow and housewife residing at Calcutta. On 17th May, 1969 she entered into an agreement with one Sanatan Kumar Daw, the defendant No. 2 in this suit to purchase the property of the defendant No. 2, a two storied building at Bethuadahari, Nadia for a price of Rs. 18,000/-. She paid a sum of Rs. 2,000/- by way of earnest money. The transaction was to be completed within six months from the date. The petitioner was to advance further sums to the vendor from time to time if the latter would be in need of the same. It is further alleged that the petitioner up to the 1st of August, 1967 advanced Rs. 13,000/- by various instalments. It is also stated that the defendant No. 2 deposited title deeds of the property at Calcutta and by two letters dated 21-2-1976 B. S. and 17-4-1976 B. S. corresponding to 4th of June and 2nd of August, 1969 respectively, mortgaged the properties to the petitioner. The defendant No. 2 failed and neglected to convey the property to the petitioner, she claims that she is entitled to a charge on the said property. On the 23rd June, 1973 for the first time she came to know from the said defendant No. 2 that the Hon'ble Court by an Order dated the 9th September, 1969 restrained the defendant from dealing with the said property till the disposal of the present suit. Thereafter on enquiry she came to know about the present suit and the aforesaid order dated 9th September, 1969. The case of the petitioner is that she is a mortgagee or a holder of the charge on the property and as such she is an interested party in these proceedings. She claims to be a proper and a necessary party as the transaction viz., the purchase of the property cannot be completed. Her interest is in jeopardy; unless the said order of injunction dated the 9th September, 1969 is vacated she will suffer irreparable loss. She further adds that she 'could rot take any action expeditiously' as she is A Pardanashin lady and also because she was ill. By an affidavit affirmed on the 5th of November 1973 the defendant No. 2 Sanatan Kumar Daw supports the claim of the petitioner and states that he is ready and willing to convey the property on being paid the balance of the consideration money if this Court vacates the said order of injunction. He states that on account of illness of his father the defendant No. 2 tried to effect a settlement of the suit, the agreement for sale is also annexed to the said affidavit.

3. By an affidavit affirmed on the 21st of November, 1973 one Narayan Chandra Garai, a partner of the plaintiff firm opposes the said petition. It is stated that Sudhangshu Kumar Seal, the constituted attorney of the petitioner Annapurna De, is a friend of the defendant No. 2 and the petitioner is her sister-in-law. It is stated further that the defendants are in greatly involved circumstances. The defendant No. 2 has no other asset except the said two storied building. The defendants have various other creditors. The defendant No. 2 was about to dispose of the said property with the mala fide intent to defraud the plaintiff and defeat its claim in suit. It is stated, however, that on 8-8-1969 the deponent was informed by a land broker that the defendant No. 2 was interested in disposing of the said property at Krishnagar. The said Sudhangshu Kumar Seal and the defendant No. 2 were acting in collusion and conspiracy with one another. The schedules of the alleged agreement for sale and alleged part payment are stated to be false and/or at any rate highly suspicious. The fact that Sudhangshu Kumar Seal was a friend of the defendant No. 2, that the petitioner had no ostensible source of income and the nature of the terms and conditions of the alleged agreement for sale are mentioned as grounds for the said suspicion. It is stated that the subject matter of the suit is the recovery of the price for some goods sold and delivered to the defendants. It is denied that the application is made bona fide. The application is stated to be mis-conceived. A copy of the plaint is annexed for perusal of the Court.

4. By another affidavit affirmed on the 24th of November, 1973 by the said Sudhangshu Kumar Seal the petitioner sought to reply to the averments made in opposition to her petition. It is not necessary to set out further particulars from that affidavit.

5. The two main questions involved in this petition are firstly, whether the petitioner is to be added as a party defendant in the suit and secondly, whether the order of injunction passed on the 9th September, 1969 is to be vacated or set aside on the facts and circumstances of this case.

6. It is clear from the petition and the affidavits noted above that the petitioner wants to be added as a party to the suit only because she has agreed to purchase a property of the defendant No. 2 who has been restrained by an order of injunction of this Court not to sell the same on the allegation of the plaintiff that the defendant has no other means to satisfy the decree if and when passed against the defendant. It is clear that under Order 1, Rule 10, Sub-rule (ii) of the Code of Civil Procedure the Court may in an appropriate case strike out or add parties at any stage of the proceedings. It is, however, stated that 'the name of any party improperly joined whether as a plaintiff or as a defendant or whose presence may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit the added.' It would appear, therefore, that persons may be added as a party only in two cases viz., (1) When he or she ought to have been joined as a defendant and is not so joined. (2) When without her presence the question in the suit cannot be completely decided. It is not even, contended that the petitioner ought to have been joined as a defendant or that her presence is in any way necessary to adjudicate effectually and completely the questions involved in this suit. She is neither a proper nor a necessary party. Apparently a person is not to be added as a defendant merely because he or she would be incidentally affected by the judgment. Reference may be made to the case of Moser v. Marsden, reported in (1892) 1 Ch D 487. The test as was laid down by Lord Justice Lindley at page 489 is whether the question at issue between the plaintiff and the defendants can be worked out without anyone else being brought in to take part in the action. Mr. R.P. Sinha, the learned counsel for the petitioner however cited two cases. One is Sreemutty Dhai v. Bhadarmull Hargo, reported in (1936) 40 Cal WN 677. In suit brought against the firm and its firm name, a person who was not served with a writ of summons as a partner apprehended that the plaintiff would eventually seek to hold him liable in execution proceedings on the basis of partnership. He was held to be eligible to be added as a defendant. The facts of the said case, however, are clearly distinguishable from the present case as in that case the person concerned was admittedly interested in the defendant firm. Moreover, the provisions with regard to partnership are different. The same enable a person to be held liable in execution proceedings on the basis of a partnership. Panckridge, J. gave some weight to the consideration that the applicant in that case was interested in some way or other in the assets of the defendant firm's business. Yet while making the order Panckridge, J. was conscious that the order that was being made was 'somewhat exceptional.' It was also recognised in that case that the Court will be reluctant to force the plaintiff to sue somebody whom he has decided not to sue.

7. The other case cited was that of Rampur Tannery and Mfg. Co. Ltd. v. Umar Uddin, reported in : AIR1954All11 . It was held in that case by the Division Bench of the Allahabad High Court that the Court has inherent jurisdiction to entertain the application of a stranger to be made a party and to implead any person as a party to a suit where the addition is considered to be in the interest of justice. In that suit filed on behalf of the partnership by a partner the other partners applied that their names be brought on record to continue the suit on behalf of the partnership. The Court entertained the application under Section 151, Civil P. C. even if Order 1, Rule 10 or Order 30, Rule 1 was not applicable. It may be noted that the facts in that case were also quite different and it was recognised therein that on a strict view Order 1, Rule 10 was not applicable even to the facts of that case. The Court in the interest of justice exercised the inherent powers under Section 151 of the Code of Civil Procedure. Nothing in the present case warrants such an extraordinary exercise of power by this Court.

8. The main consideration seems to be whether or not the presence of the petitioner is necessary to enable the Court to effectually and completely adjudicate upon and settle the questions involved in this suit. If the question at issue between the parties can be worked out without anyone else being brought in the stranger should not be added as a party. As already stated before the petitioner cannot be considered to be a proper or a necessary party. That she may be eventually affected by the judgment or in the execution decree against the defendant No. 2 is not a cogent ground to make her a party. As was pointed out by the Supreme Court in the lease of Deputy Commissioner, Hardoi v. Rama Krishna, as reported in : AIR1953SC521 the eventual interest of a party in the fruits of litigation cannot be held to be a true test of impleading parties according to the Code of Civil Procedure. A compulsion other than one based on positive rule of law upon the plaintiff to litigate against a person not of his own choice must be unfair. Reference may be made in this connexion to the case of Vaithilinga Pandara Sannidhi v. Sadasiva Iyer, reported in AIR 1926 Mad 836.

9. As to the prayer for vacating or setting aside an order of injunction it may be noted that apart from the question of mala fide alleged against the petitioners, it is not at all clear, inter alia, why she came to the Court years after the order of injunction was made. The explanation that she was told about the order of injunction only on the 23rd June, 1973 can hardly be accepted on the facts and circumstances of the case. The alleged agreement for sale dated the 7th May, 1969 provided, inter alia, that the transaction was to be completed within six months from that date. If the transaction was to be completed by the end of November 1969, It is strange that even for years thereafter the petitioner took no steps to that end. If she did take any step she would, in the normal course of events, be told at once that an injunction of this Court was pending. Putting off the final purchase for years only on the alleged ground of illness on either side and the total absence of knowledge about the order of injunction seems, rather abnormal. Moreover it appears that the brother-in-law of the petitioner is also well-known to the defendant No. 2. That circumstance also is incompatible with this withholding of the information about injunction.

10. This petition moreover, cannot be treated as a proceeding in the nature of pro interesse suo as was urged on behalf of the petitioner. As was pointed out by Ghose, J. in the case of Central Bank v. Srish Chandra Guha, reported in : AIR1972Cal345 , the position in pro interesse suo is not provided for either in the Code of Civil Procedure or in the Rules of the Original Side of the Court. The same is imported from England. It was held that in order to do justice to a person the Court allows a person to come in and be examined as to his title, to the goods or property over which a Receiver has been appointed. That is done so that no person may suffer because of any order that may be passed by the Court. In the present case there is no question of a Receiver being appointed. Moreover there is nothing to show that the petitioner is diligent. It was suggested on behalf of the petitioner that even in cases where a Receiver is not appointed such a proceeding may be allowed. The learned counsel, however, confessed that he was not aware of any proceeding of that nature where actually a Receiver was not appointed. The principle was settled in this court long ago. Almost half a century earlier in Sreedhar v. Nilmony, 41 Cal LJ 197 = (AIR 1925 Cal 681) following Motivahu v. Premvahu, (1892) ILR 16 Bom 511 and Mahomed v. Zoharra, (1889) ILR 17 Cal 285 it was held by C.C. Ghose, J. that a person not a party to a suit in which a receiver was appointed. Claiming a title paramount to that of party obtaining the receiver and who is prejudiced by the Receiver put in his way, can apply to the Court for leave to come in and, be examined pro interesse suo. The Court exercises this power of examination very sparingly and in very special cases and under special conditions. This was followed in Hazarimull v. Sadasukh, 41 Cal LJ 371 = (AIR 1925 Cal 750) and thereafter and even in the recent case of Bajranglal Khemka v. Sm. Sheela Devi, reported in (1970) 74 Cal WN 444. All the reported decisions including the recent ones of this court uniformly hold that such a proceeding is only contemplated where a Receiver is appointed.

11. After the arguments were concluded a case was cited by Mr. S. Sarkar, the learned counsel with notice to the other side. Comments were made on the case which is Bour Baud v. Bour Baud, reported in (1864) 10 LT 781 = 12 WR 1024.

12. The said case is referred to by Kerr on Injunctions (6th Edn p. 662) for the proposition that 'where a stranger to the action is affected by an injunction he may apply to have the injunction set aside.' Halsbury's Laws of England (3rd Edn.) Vol. 21 also mentions the same case as an authority for the observation that apparently a stranger to a suit, who is affected by an injunction, can apply to dissolve it. That was a suit filed by a French Brandy merchant against his agent and the London Dock Company at London, inter alia, to restrain the defendants from dealing with certain dock warrants for brandy which had been shipped by the plaintiff. The petitioner a pledgee of the dock warrants filed a petition to set aside an injunction earlier passed in the suit. The petitioner was held to be admissible. There were however certain peculiar features of that case (i) since injunction on account of the plaintiff's bankruptcy no proceedings had been taken in the suit, (ii) on account of the plain-tiff's bankruptcy abroad, the proper procedure in a foreign bankruptcy was thought to be to have an injunction dissolved unless the suit was presented within a given time, (iii) the suit had been looked at as one abated on account of the plaintiff's bankruptcy. Although the case is a very old one for more than a century the same does not appear to have been dissented from. Both Kerr in his work in injunction and Halsbury in the Laws of England, 3rd Edition still rely on the same. No corresponding Indian authority has been brought to the knowledge of the Court. The circumstances of the present case is not one which would import application of the principles involved in the case (1864) 10 LT 781. It is not possible to visualise all possible contingencies. While normally the Court does not grant any relief at the instance of a stranger to the suit the Court may however in an appropriate case give relief to a stranger by dissolving an order of injunction as was made in the aforesaid case in the interest of justice.

13. In view of what is stated above the petition is dismissed with costs.


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