Gujarat High Court
Bombay Parsi Panchayat Funds And ... vs Mansi Developers Trade Name And Vahivat ... on 8 October, 2015
Author: S.G.Shah
Bench: S.G.Shah
C/SCA/6468/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6468 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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BOMBAY PARSI PANCHAYAT FUNDS AND PROPERTIES
TRUST....Petitioner(s)
Versus
MANSI DEVELOPERS TRADE NAME AND VAHIVAT THROUGH SOLE
PROP. & 5....Respondent(s)
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Appearance:
MR NIRAV R MISHRA, ADVOCATE for the Petitioner(s) No. 1
DELETED for the Respondent(s) No. 2.3 - 2.6
MR DIPAK R DAVE, ADVOCATE for the Respondent(s) No. 1
MRS.DHARITA P MALKAN, ADVOCATE for the Respondent(s) No. 2.1-2.2, 3
MS ALPA J DAVE, ADVOCATE for the Respondent(s) No.2.1 - 2.2 , 3
MS.KHUSHBOO V.MALKAN, ADVOCATE for the Respondent(s) No.2.1-2.2,3
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 08/10/2015
CAV JUDGMENT
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1. Heard learned advocates appearing for respective parties at length. Perused the record. The petitioner herein is a third party to the proceeding pending before the Court of Civil Judge (S.D.) at Bhavnagar being Civil Misc.Application no.71 of 1994. Such application is pending for appointment of an Arbitrator with some ancillary reliefs since past more than two decades and the original applicants in such Civil Misc.Application have disclosed in title of such application that it is a suit for specific performance of contract with alternative relief of liquidated damages and injunction, wherein in paragraph 28A, the original applicants have prayed to appoint an Arbitrator u/s.8 of the Arbitration and Conciliation Act in view of the arbitration clause in the agreement between the applicants and original opponents with certain ancillary reliefs so far as the arbitration proceedings are concerned. However, there is altogether an alternative set of reliefs stating that if Court is not invoking the power under the Arbitration Act, then, to pass decree for specific performance with ancillary reliefs.
2. The dispute between the original parties to such litigation is to the effect that the opponents Bhavnagar Parsi Anjuman, a registered trust having properties in Bhavnagar, has entered into an agreement for development of its properties with the original applicants, namely, M/s.Mansi Developers, who has filed such application for above-referred reliefs.
3. At present, we are concerned with the impugned order below Exh.199 in such Misc.Civil Application no.71 of 1994 by which the present petitioner, namely, Bombay Parsi Panchayat Funds and Properties Trust has applied before the lower Court to join it as party opponent (defendant no.8) in such Misc.Civil Application no.71 of 1994. The sum and substance of the present petitioner is to the effect that irrespective of claim and dispute over the property Page 2 of 9 HC-NIC Page 2 of 9 Created On Tue Oct 13 01:39:54 IST 2015 C/SCA/6468/2012 CAV JUDGMENT under reference of such litigation between the original applicant and opponents, they have rights over such property for which one Regular Civil Suit no.366 of 1996 is pending between them and the original opponents and that in that suit original applicant - M/s.Mansi Developers has filed an application to be joined as a litigant and they were allowed to be joined as such pursuant to order dated 17.9.2010 in Special Civil Application no.883 of 2010 by this High Court (Coram: K.M.Thaker, J.). It is further contended by the petitioner herein that when M/s.Mansi Developers has been joined as defendant in their suit, and when they disclosed the pendency of Civil Misc.Application no.71 of 1994, they came to know about such proceeding, and therefore, since they have their own right over the property in question, they are necessary party in dispute between Bhavnagar Parsi Anjuman and M/s.Mansi Developers.
4. However, such application has been dismissed by the impugned order dated 24.2.2012 by 7th Addl.Sr.Civil Judge, Bhavnagar observing that so far as the issue before the Court in such Misc.Civil Application is concerned, it is restricted for appointment of Arbitrator and Court has not to decide the dispute between the parties and that petitioner has filed this application at very belated stage in the year 2010 only, though Misc.Civil Application is pending prior to the suit by the petitioner. Therefore, it is held that the present petitioner is not a necessary party to decide the dispute between the original litigants, and therefore, they cannot be joined as such.
5. The record runs into several pages because of several previous intermediate litigations upto this High Court for small issues. However, at present, we are concerned with the impugned order below Exh.199 only, whereby request of present petitioner, namely, Bombay Parsi Panchayat Funds and Properties Trust to Page 3 of 9 HC-NIC Page 3 of 9 Created On Tue Oct 13 01:39:54 IST 2015 C/SCA/6468/2012 CAV JUDGMENT join it as a opponent, is rejected. It is undisputed fact that Misc.Civil Application no.71 of 1994 is though claiming specific performance of some agreement, initially, it is for appointment of Arbitrator as per the Arbitration Clause between the parties. Therefore, so far as issue relating to appointment of Arbitrator is concerned, prima facie it is quite clear and obvious that so far as appointment of Arbitrator is concerned, the relevant parties are persons, who are party to such agreement, wherein there is an arbitration clause. In the present case, the agreement in question is a contract for developing the trust property for the benefit of Parsi community. In addition to such dispute between the trust and the proposed developer, there is a dispute between the trust also so far as right, ownership and title over the same property is concerned, namely, Bombay Parsi Panchayat Funds and Properties Trust as well as Bhavnagar Parsi Anjuman since according to them, they are the real owners, whereas Bhavnagar Parsi Anjuman is simply occupant and administrator of such property, and therefore, they have no right whatsoever to enter into any agreement or to change the situation of the property without express permission of the owner - trust so also the Charity Commissioner.
6. As against that, it is contended by all the respondents herein, which includes the original applicants as well as original opponents that there is no privity of contract whatsoever between the proposed developer and the petitioner Bhavnagar Parsi Panchayat Funds and Properties Trust, but the agreement for development from which litigation arises is only between the Bhavnagar Parsi Anjuman being owner and holder of the suit property and the developer M/s.Mansi Developers, and therefore, petitioner is not a necessary party and, hence, it cannot be joined as defendant, as prayed for.
7. Law regarding joining of parties is well settled, which is governed by Order 1 rule 10(2) of the Code of Civil Procedure. The bare Page 4 of 9 HC-NIC Page 4 of 9 Created On Tue Oct 13 01:39:54 IST 2015 C/SCA/6468/2012 CAV JUDGMENT reading of such provision makes it clear that 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. Therefore, though the power to join the party at any stage of the proceeding is wide enough, basic scrutiny before joining any party in any pending litigation, should be to the effect that whether presence of such party is necessary for the Court to adjudicate upon and settle all the questions involved in the suit effectually and completely. Thereby, if presence of any party is not required for deciding any dispute effectually and completely, then, presence of such party is not material and thereby such party cannot be termed as a necessary party, and therefore, he may not be joined as such.
8. It is true, considering the nature of present litigation that so far as joining of the present petitioner as opponent in an application for arbitration is concerned, is not necessary so as to decide the application for appointment of an Arbitrator effectually and completely, and therefore, he may not be a necessary party.
9. However, if we peruse the main application, prayers of which are referred herein above, the original applicants themselves have made alternative reliefs i.e. either appointment of Arbitrator or proceeding further in the matter as if it is a suit for performance of a specific agreement. Considering such alternative reliefs and the fact that present petitioner has already filed suit with reference to the same property to safeguard its rights and title, atleast in the process of resolving the dispute regarding specific performance of Page 5 of 9 HC-NIC Page 5 of 9 Created On Tue Oct 13 01:39:54 IST 2015 C/SCA/6468/2012 CAV JUDGMENT a contract, the present petitioner will be necessary party. However, so far as issue regarding appointment of Arbitrator alone is concerned, since present petitioner is not a party to the agreement in question and since there is no privity of contract with the present petitioner, certainly it is not a necessary party so as to decide the issue regarding appointment of Arbitrator effectually and completely, to that extent, this application is premature because once the main dispute regarding specific performance of the agreement and right of Bhavnagar Parsi Anjuman to execute such agreement is to be considered by a competent authority, either the Arbitrator or the Court, then, at that stage, the present petitioner would certainly be a necessary party because of the reason that they have already initiated legal proceeding against the Bhavnagar Parsi Anjuman to ascertain its rights, and in such suit, proposed developer has prayed to join it as a necessary party and this High Court has already allowed such request.
10.In view of above situation, which is emerging from the record and discussion herein above, the position remains to the effect that though petitioner may not be a necessary party to decide the issue regarding appointment of Arbitrator, when original applicants have filed Misc.Civil Application with alternative relief regarding specific performance of an agreement, with reference to particular property, if present petitioner is claiming its right over such property and when they have filed a suit to confirm such right, it becomes clear and obvious that atleast while determining such reliefs by the original claimants, present petitioner may be necessary party. However, almost in a similar case, the Hon'ble Supreme Court of India has in the case of Ajmera Housing Corporation Vs. Amit M.Patel reported in AIR 1998 SC 2542 refused to join third party, who was claiming his right over the dispute observing that the issue involved as to assignment of rights, Page 6 of 9 HC-NIC Page 6 of 9 Created On Tue Oct 13 01:39:54 IST 2015 C/SCA/6468/2012 CAV JUDGMENT ought to be dealt with properly constituted suit and no new party can be added in an appeal against interlocutory order further observing that the proposed third party may file separate suit.
11. Whereas in the case of Dwarika Prasad v. Harikant Prasad AIR 1973 SC 655, the full bench of the Hon'ble Supreme Court of India has, while considering the provision of Order 1 Rule 10 held that in a suit for specific performance, a person having a prior agreement is necessary party. However, as usual, the facts and circumstances of each case would be certainly different, and therefore, provision of law is to be applied suitably considering the nature of the dispute and facts of the case. In both the reported cases, application for joining of the parties are at different stage and by person who has got a different type of status with the original litigant so also with the dispute under consideration. In the case of Ajmera Housing Corporation (supra) the land owner has entered into two different development agreement, and therefore, when one of the proposed developer has filed a suit for specific performance, request of 2nd developer to join him as a plaintiff was rejected, though he was claiming similar relief against the original defendant. The reason is obvious that though the Court has power to join any new party either as plaintiff or defendant, the real issue for consideration is the presence of such party for effectually and completely adjudicating upon the dispute on hand. Therefore, in the case of Ajmera Housing Corporation (supra) when second developer being proposed plaintiff has a separate agreement with the land owner, his presence to decide the dispute relating to agreement with another developer with the landlord, was not considered to be necessary, more particularly, when he has applied to join him at appellate stage. Similar is the situation in the case of Dwarika Prasad (supra) when application for joining of party was again filed at the stage of appeal and that too when the litigant Page 7 of 9 HC-NIC Page 7 of 9 Created On Tue Oct 13 01:39:54 IST 2015 C/SCA/6468/2012 CAV JUDGMENT against whom decree was passed has expired and his legal heirs were not joined. Therefore, none of such decisions are of much relevance at this stage. Whereas, respondents herein are relying upon the case of Kasturi v Iyyamperumal reported in AIR 2005 SC 2813 wherein also, the full bench of the Hon'ble Supreme Court of India has negatived the presence the third party to be joined in a suit for specific performance, when they are claiming right over the property under reference.
12.In view of above facts and circumstances, at present, there is no option, but to dismiss this petition, however, making it clear that if at all right of the present petitioner is ascertained in its suit being R.C.S.no.366 of 1999, then, probably, they would be necessary party, since in that case, right of Bhavnagar Parsi Anjuman to enter into an agreement would be questionable. For the purpose, liberty is reserved in favour of the petitioner to apply afresh for joining it as a party in a litigation, if any, pending between Bhavnagar Parsi Anjuman and M/s.Mansi Developers either in Civil Misc.Application no.71 of 1994 or in any arbitration proceeding assigned from such application or in any other such proceeding between the parties. If any such application is filed at any appropriate time, then, the competent authority, including the trial Court or Arbitrator shall decide it afresh in accordance with law without being influenced by the impugned order so also the present order since at this stage, this Court has not entered into the real dispute between all three parties so far as right over the property in question is concerned. It is made clear that observation and discussion in this judgment is only for the purpose of deciding this petition.
13.In view of above facts and circumstances, this petition is disposed of in aforesaid terms.
(S.G.SHAH, J.) Page 8 of 9 HC-NIC Page 8 of 9 Created On Tue Oct 13 01:39:54 IST 2015 C/SCA/6468/2012 CAV JUDGMENT binoy Page 9 of 9 HC-NIC Page 9 of 9 Created On Tue Oct 13 01:39:54 IST 2015