Karnataka High Court
Abdul Jaleel And Others vs Smt. Aishabi And Others on 6 January, 1992
Equivalent citations: AIR1992KANT380, ILR1992KAR1156, 1992(2)KARLJ277, AIR 1992 KARNATAKA 380, (1992) ILR (KANT) 1156, (1992) 2 KANT LJ 277, (1992) 2 CURCC 370, (1992) CIVILCOURTC 539
ORDER
1. These revision petitions are filed against the common order dated 11-3-1987 made in O.S. 172 of 1986 by the Civil Judge, Gulbarga on I.As. 2 and 3, allowing the application of the respondents for impleading them as party-defendants to the suit.
2. Brief facts of the case are these :
The petitioners are the plaintiffs in the trial Court. They filed a suit for specific performance of the contract to sell against respon-dcnt-1, who is defendant No. I in the trial Court. The 1st respondent executed an agreement to sell and that was sought to be enforced in O.S. 172 of 1986 before the trial Court. In fact, the 1st respondent has consented for a decree though there was a contest in the initial stage. At that stage respondents filed applications I. As. 2 and 3 under Order 1, Rule 10, C.P.C. claiming title to the property in question. In the said applications it is stated by the respondents that they are Chairman and Muthavalli of the District Wakf Committee, Gulbarga, and they should be impleaded as parties in the suit. It is stated that the suit property is a wakf property and they are entitled to manage the same.
2A. It may be stated that the defendant was the owner of the suit property and she made over the suit property by a registered deed of wakf dated 7-11-1967 for religious and charitable purpose and under the said deed she appointed one M. A. Hakeem of Thimmapur as Muthavalli. Further, it is the case of the respondents that the suit property was registered with Wakf Committee, Gulbarga, and wakf was also issued on 20-9-1975. Since it is a wakf property any decree passed in the suit would affect the respondents' right to the property. Further, they prayed in their applications that they are proper and necessary parties and, therefore, they should be impleaded.
3. The petitioners resisted the application and filed their objections stating that the present suit is for specific performance. The 1st defendant is the absolute owner of the suit property. After perusing all the records the petitioners entered into an agreement of sale with the defendants and they paid considerable amount to the defendant. The applicants are the third parties and they should not be impleaded for it would eausc irreparable loss and injury to the petitioners.
4. The lower Court after considering the respective contentions of the parties has reached the conclusion that the agreement of sale between the petitioners and the 1st respondent on 6-5-1984, which is much later than wakf deed dated 7-11-1967 by which they alleged that the suit properly was made over to the Wakf Board and the Mutikop of wakf was issued on 20-9-1975. Therefore, if any decree is passed in this case, it would definitely affect the proposed defendants-respondents. It has also further held that the presence of the proposed defendants are necessary to determine the real question in controversy and it allowed the applications I.As. 2 and 3 for impleading them as respondents. Hence these revision petitions.
5. The learned counsel appearing for the petitioners contended that if I.As. 2 and 3 are allowed, the strangers who are connected with the suit will become parties to the suit for specific performance. The Court has no jurisdiction to allow such applications and permit the applicants to come on record as party-
defendants in the suit. It is further contended that the applicants are not proper and necessary parties to the suit and their presence is not necessary for'effectively adjudicating an issue involved in the suit. He further argued that by the guise of making them as parties to the suit, the very nature of the suit get changed. In the suit for specific contract to sell, the question of title does not involve and, therefore, introducing of a stranger to the suit as party-defendants causes such inconvenience to the petitioners.
6. Elaborating his argument, he has relied upon the judgment of this Court in Gundu Baballi Banajwade v. Raghavendra Hari Kale, 1968 (2) Mys LJ 243; Angeline Mon-teiro v. Roslie G. Castelino, 1967 (2) Mys IJ 365 and Razia Begum v. Anwar Begum, .
7. The learned counsel appearing for the respondents has submitted that the order of the trial Court does not suffer from illegality or material irregularity in exercise of jurisdiction. The lower Court has rightly held that the respondents are proper and necessary parties to determine the real question in controversy in the suit. He has further submitted that whenever a suit is filed which pertains to the title to or possession of the wakf property as per the provisions of S. 57 of the Wakf Act, the Court shall issue notice of the suit to the Wakf Board. He has further argued that whenever in a suit by the plaintiff claiming his right affects the right or interest or the engagement of the property of the intervener, then he is a necessary party for he would be the person directly and legally interested in answer to the questions involved in the case.
8. Let me consider the conflicting contentions of the parties.
It is an undisputed fact that the petitioners have filed a suit for specific performance of an agreement of sale entered into by respondent No. 1. Respondent No. 1 in both the Revision Petitions filed I.A. Nos. III and IV for impleading as defendants (Intervenes) on the ground that respondent No. 1 had in the year 1967 gifted the suit property by a registered deed of wakf, dated 7-11-1967 for religious and charitable purpose and by the said deed she appointed one M.A. Hakim as Muthavalli. The interveners have produced the registered deed of wakf dated 7-11-1967 as well as the wakf nama issued on 20-9-1975, as per which the property stands in the register as wakf property. The plaintiffs suit for specific performance of an agreement of sale said to have been entered into by respondent No. 1 in the year 1974, much later to the registered deed of wakf executed by respondent No. 1 for the religious and charitable purpose and of the appointment of M.A. Hakim as Muthavalli, the intervener in the present suit.
9. The contentions of the petitioners' counsel that the plaintiffs suit is for specific performance of an agreement of sale entered into by respondent No. 1 and the intervener has nothing to do with the property; even if they have any interest in the property, they cannot claim it in the plaintiffs suit which is one for specific performance of an agreement of sale. The intervener cannot assert his right if any, but by a separate suit. By adding respondent No. 2 would radically transform the character of a suit and complicate the issue involved in the suit. In support of this submission, he has relied on the decision of this Court in Gundu Baballi Banajwade's case cited above. His Lordship Chandrashekhar, J., has held thus:--
"The present suit is only for specific performance of an agreement for sale of land, and not for possession of the land, and muchless for partition of that land. Any decree passed in the suit will not itself affect the right, if any, of respondent 4 to possession of the land. On the other hand, the addition of respondent 4 will radically transform the character of the suit, complicate the issues in the suit will compel the plaintiff to amend his plaint in order to resist the rival title asserted by respondent 4, and will require investigation of the title of respondent 4.
Having regard to the nature of the suit, the reliefs asked for and the nature of the claim of the applicant (respondent 4), it appears to me that respondent 4 should not be added as a supplemental defendant in the suit."
The present case is distinguishable on facts as such the principle laid down in the above referred case is inapplicable to the facts of this case. In the case referred to above, the plaintiff filed a suit for specific performance of the contract of sale, but not for possession and the respondent No. 4 therein (the inter-vener) claimed to be in possession of the property of the suit land as possessory mortgagee and also contended that if any decree is passed in favour of the plaintiff would affect his right in possession. In the present case, the agreement of sale was entered into by respondent No. 1 with the plaintiffs after the suit property was gifted by registered deed of wakf and appointed the intervener as Muthavalli as well as the property was vested with the Wakf Board evidenced later by the Wakf nama in the year 1975.
10. Controverting the said submission, the learned counsel appearing for respondent No. 2 (the intervener) has relied on the decision reported in Sampathbai v. Madhu Singh, . In the said decision, it is observed thus :--
"If the relief claimed by the plaintiff will directly affect the intervener in the engagement of his right, the later may be added as a defendant even against the wishes of the plaintiff and even if the addition of that defendant would involve an investigation into question not arising on the cause of action averred by the plaintiff."
Another decision cited by the petitioners' counsel in Angeline Monteirb Bai's case is of no assistance to his contention. It is observed in the said decision after taking into consideration the guiding principle laid down by the Supreme Court in Razia Begum's case, cited above, thus:--
"We are not concerned in this case, with the first part of this sub-rule which deals with the striking out of parties. The second part of the sub-rule lays down that the court may order any person to be joined as plaintiff or defendant, if his presence is necessary in order to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit. So, whenever a question as to the addition of a person as a defendant to a suit is raised, the points which the court has to consider are : (1) What arc the questions raised by the parties to the suit? (2) Has the person sought to be added as a defendant to the suit any interest in the subject-matter of the suit? (3) Are the persons already before the Court sufficient to enable it to award or refuse the relief or reliefs which the plaintiff has prayed for in the suit? (4) Would the adjudication be complete and effectively enforceable by the plaintiff in the absence of the person who is sought to be added as defendant? If the answers to these questions on the facts and circumstances of the case are in the affirmative, or in other words, if the relief or reliefs prayed for by the plaintiff, if given do not affect the person sought to be added as party in so far as the subject-matter of the suit or any right thereto, is concerned, then it would not be necessary to add him as defendant to the suit."
It is clear from the above decision of this Court that if the person sought to be impleaded as defendants were directly interested in the subject-matter of the litigation, their presence is necessary for adjudication of all the questions involved in the suit. The learned counsel appearing for respondent No. 2 has drawn my attention to the observation of the Supreme Court in Razia Begum's case, cited supra, that "the name of any person who ought to have been joined, whether as plaintiff or defendants 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". It is argued that respondent No. 2 in these revision petitions are proper and necessary parties to enable the Court to effectually decide all the questions involved in the suit filed by the plaintiff. So what the Court has to find out with reference to the facts of this case, whether the respondent No. 2 in these revision petitions, who sought to be implead-ed in the suit are necessary parties to enable the Court to adjudicate upon and settle all questions involved in the suit.
10A. As noticed, in these cases, the suit property had already been gifted by respondent No. 1 by registered deed of wakf for religious and charitable purpose and the Muthavalli has also been appointed by the said deed. The Wakf Board has already taken possession and as per the terms of the wakf, it has been registered with the Wakf Committee, Gulbarga and Mustaqab of Wakf was also issued on 20-9-1975. Thus, the ownership vests with the Karnataka Wakf Board as per the provisions of the Wakf Act. As such, both the Muthavalli as well as the Wakf Board through District Wakf Committee, Gulbarga, are necessary parties in the suit. As per the provisions of S. 57 of the Wakf Act if any suit relates to a title or possession of wakf property, it is incumbent upon the Court to issue notice to the Board at the cost of the party instituting such suit or proceedings.
11. The intendment and object of the provisions of O. 1, R. 10(2) is to invest the Court with ample power and jurisdiction to strike out the name of any party improperly joined or to add any person who ought to have been joined or whose presence is necessary to enable the Court to effectually adjudicate upon and settle all the questions involved in the suit. The expression 'to settle all questions involved' used in Order 1, Rule 10(2) C.P.C. is susceptive of liberal and wide interpretation so as to adjudicate all the questions pertaining to the subject-matter thereof. The Parliament in its wisdom while framing this rule must be held to have thought that all the material questions common to the parties to the suit and to the third parties should be tried and once for all and the Court is clothed with the power to secure the aforesaid result with judicious discretion to add parties, including third parties. As could be gathered the intendment and object of the provisions from the proper interpretation of the language used therein, appears to me, to adopt liberal construction to enable the Court to determine all questions relating to the subject-matter of the suit arising not only between the parties to the suit but also the third party whose presence before the Court is necessary or proper for an effective and final adjudication. The view which I hold gains support from the decided cases. One of such cases is decided by Vishwanatha Shastry, J., in Sri Rama Murthy v. Venkata Subbarao. 1956 Andh LT 917, which reads thus :--
he expression 'questions involved in the suit' in O. 1, R. 10(2) means, not merely the questions which are involved in the suit as between the parties originally impleaded. The object of the provision is that the real dispute raised in the suit should be decided in the presence of all the parties interested in the dispute and for that purpose, they should be brought before the Court. Order 1, R. 10(2) was framed in order to ensure that the dispute might be finally determined at the same time in the presence of all the parties interested without the delay and expense of several actions and trials and inconclusive adjudications."
"To the same effect is the decision of Satyanarayana Raju, 3. (as he then was) in Razia Begum v. Anwar Begum, AIR 1958 Andh Pra 195, which was affirmed by the Supreme Court in Razia Begum v. Anwar Begum, wherein the majority view expressed by B. P. Sinha, J. (as he then was) is to the effect that the question of addition of parties under R. 10 of O. 1 of the Code of Civil Procedure is generally not one of initial jurisdiction but of a judicial discretion to be exercised in view of all the facts and circumstances of a case : that in a suit relating to properly the party sought to be added should have a direct interest as distinguished from a commercial interest in the subject-matter of a 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. The Supreme Court held that O. 1, R. 10(2) requires liberal construction."
12. Applying the aforesaid principles of law, I have no hesitation to hold that respondents No. 2 in these revision petitions are necessary parties to the present suit. The submission of petitioners that the nature of the suit itself would be altered if respondents No. 2 are permitted to add as party defendants cannot be accepted. None of the contentions of the petitioners counsel has any merit. The trial Court in exercise of its sound discretion has permitted respondent No. 2 to be impleaded as party defendants, as the subject matter of the suit relates to the title and possession of wakf property of which respondent No. 2 in these revision petition is the Muthavalli appointed under the registered deed of wakf by respondent No. 1 and the Wakf Board is in possession and management of the Wakf property.
13. In the result, these revision petitions are dismissed with costs.
14. Revision dismissed.