Rajasthan High Court - Jaipur
Parmeshwari Asnani vs State (Education Department)Ors on 28 August, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
ORDER
S.B. Civil Writ Petition No. 20755 / 2013
Ram Ratan S/o Late Shri Lalchand, R/o 18/20, Pannigram Chauk,
Ajmer.
----Defendant No.1/Petitioner
Versus
1. Additional District Judge No.2, Ajmer.
----Proforma/Respondent
2. Smt. Rameshwari Devi W/o Late Shri Johari Lal, R/o 609/80-C,
Gali No.1, Dev Nagar, Taragarh Road, Ajmer.
3. Jai Narayan S/o Late Shri Johari Lal, R/o Moti Vihar, Behind Shiv
Temple, Ram Nagar, Ajmer.
4. Omprakash S/o Late Shri Johari Lal, R/o 609/80-C, Gali No.1,
Dev Nagar, Taragarh Road, Ajmer.
------Plaintiffs
5. Ramdhan S/o Late Shri Lalchand, R/o 330/6, Pannigram Chowk,
Ajmer.
6. Narendra Kumar S/o Late Shri Rameshwar Lal,
7. Suresh Kumar S/o Late Shri Rameshwar Lal,
Both 6 & 7 are resident of 454//6, Nala Bazar, In front of Godha
Gavadi, Ajmer.
8. Smt. Shakuntla W/o Late Shri Ramprasad R/o House No.330/6,
Pannigram Chauk, Ajmer.
-----Defendant Nos.2 to 5.
9. Saiyyad Iftikhar Ahmed S/o Hazi Saiyyad Aftaab Ahmed, R/o
221/20, Pannigram Chowk, Ajmer.
-----Respondent No.9.
(Respondent No.9 impleaded pursuant to the order dated
6.12.2013 passed by this Court.)
_____________________________________________________
For Petitioner : Mr. Alok Chaturvedi.
For Respondents No.2 to 4 : Mr. Reashm Bhargava.
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HON'BLE MR. JUSTICE DINESH CHANDRA SOMANI
DATE OF ORDER :: 29/08/2017
The instant writ petition has been filed by the
petitioner/defendant No.1 under Article 226 & 227 of the
Constitution of India against the orders dated 23.10.2013 and
23.10.2013 passed by Additional District Judge No.2, Ajmer
(hereinafter referred to as the 'learned trial Court') in Civil Suit
No.56/2013 (103/2005) (206/2005) and in Civil Misc. (T.I.) Case
No.30/2012, whereby the applications made by defendant No.1
under Order 1 Rule 10 read with Section 151 CPC in the civil suit
as well as in the temporary injunction application, have been
dismissed.
Skeletal material facts necessary for disposal of the
writ petition are that on or above 21.9.2005 the respondents
No.2, 3 & 4 (hereinafter referred to as 'the Plaintiffs') instituted a
suit against the present petitioner (hereinafter referred to as the
'Defendant No.1') and respondents No.5 to 8 (hereinafter referred
to as the 'Defendants No.2 to 5') for partition in respect of the
properties situated at (a) 18/20, Pannigram Chowk, Ajmer, (b)
330/6, Pannigram Chowk, Ajmer and (c) 454/6 Nala Bazar, Ajmer.
The plaintiffs in the suit interalia stated that the suit property
bearing No.18/20, Pannigram Chowk, Ajmer have been
partitioned amongst the legal representatives of Shri Johari Lal
and Late Shri Lal Chand and both have made construction on
their respective portion. It was further averred that the eastern
portion came in the share of the defendants and the western
portion came in the share of the plaintiffs. The plaintiffs further
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stated in the suit that the defendant No.1/petitioner-Ramratan
instituted a civil suit for simplicitor injunction in the Court of Civil
Judge (Junior Division) West, Ajmer in respect of the property
bearing No.18/20, Pannigram Chowk, Ajmer with the averments
that the plaintiffs are going to transfer the property without
making any partition. It was also averred that the defendant
No.1-Ramratan orally agreed to purchase the western portion and
entered into an oral agreement with the plaintiffs on 4.8.2005
against the agreed consideration of Rs.10 lacs and against which
Rs.10,000/- has been paid as an advance and because of the suit
filed by the defendant No.1/petitioner, he denied for partition in
other properties mentioned in para No.2 (b) and 2(c) of the suit
and, therefore, the present suit came to be filed for partition in
respect of properties mentioned in para No.2 (a) (b) and (c) of
the plaint.
The defendant No.1/petitioner filed his written
statement and opposed the suit filed by the plaintiffs. The
defendant No.1 denied the family pedigree mentioned in para
No.1 of the plaint. The defendant No.1 also denied that the
property mentioned in para 2 (a) i.e. 18/20, Pannigram Chowk,
Ajmer have been divided between the legal representatives of
Shri Johari Lal and Late Shri Lal Chand. The defendant No.1 also
denied any oral agreement with the plaintiffs in respect of
western portion of the property mentioned in para 2 (a) and also
denied any oral agreement of Rs.10 lacs. It was averred in the
written statement that the property bearing 18/20, Pannigram
Chowk, Ajmer has never been partitioned. The defendant No.1
specifically pleaded in the written statement that the plaintiffs
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have no share in the properties mentioned in para 2(b) and 2 (c)
and thus, they are not entitled for any partition by metes and
bounds and they are only entitled for partition in respect of
property mentioned in para 2 (a), and prayed to dismiss the suit
for partition in respect of properties mentioned in para 2(b) and 2
(c).
On 13.4.2012, the suit filed by the defendant
No.1/petitioner for simplicitor injunction before the Court of Civil
Judge (Junior Division) West, Ajmer was dismissed. Thereafter,
the present petitioner in the capacity of defendant No.1 moved an
application under Order 39 Rule 1 & 2 CPC in the month of May,
2012.
On 4.6.2012, the respondent No.2-Rameshwari Devi
vide registered sale deed dated 4.6.2012 sold her share in the
suit property to one 'Saiyyad Iftekhar Ahmed S/o Hazi Saiyyad
Aftab Ahmed' (respondent No.9 herein).
During pendency of the suit filed by the plaintiffs, in
the month of July, 2012 the defendant No.1/petitioner filed an
application under Order 1 Rule 10 read with Section 151 CPC for
impleadment of Saiyyad Iftekhar Ahmed S/o Hazi Saiyyad Aftab
Ahmed. In the aforesaid application, it was submitted that the
defendant No.1/petitioner himself instituted a civil suit for
permanent injunction against the plaintiffs in respect of property
bearing No.18/20, Pannigram Chowk, Ajmer and the said suit was
dismissed by the Court of Civil Judge (Junior Division) West,
Ajmer vide judgment dated 13.4.2012. While deciding issues, the
Court held that there was oral agreement in respect of purchase
of the property bearing No.18/20, Pannigram Chowk, Ajmer, as
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such it is joint and common property. It was further averred that
after decision of the aforesaid suit, the plaintiffs were trying to
sell out the aforesaid property bearing No.18/20, Pannigram
Chowk, Ajmer and thus, the petitioner filed an application under
Order 39 Rule 1 & 2 readwith Section 151 CPC on 26.5.2012. It
was also averred that the notices were issued but the plaintiffs
deliberately have not received the notices though they were fully
aware about filing of the said application. It is also stated that
despite knowing the pendency of the aforesaid application, the
plaintiff No.1 Rameshwari Devi executed a sale deed on 4.6.2012
in favour of Saiyyad Aftaab Ahmed, therefore, the said purchaser
is necessary and proper party and he may be impleaded as party
defendant No.6 in the suit proceedings.
The defendant No.1/petitioner filed a similar another
application under Order 1 Rule 10 readwith Section 151 CPC in
the temporary injunction application filed by him for impleadment
of Saiyyad Iftikhar Ahmed.
Saiyyad Iftikhar Ahmed appeared before the learned
Court below and resisted the application by filing his reply. In the
reply, Saiyyad Iftikhar Ahmed interalia submitted that the
defendant No.1/petitioner instituted a civil suit in respect of
property bearing No.18/20, Pannigram Chowk, Ajmer and the
said suit was dismissed by the concerned Court. It was further
stated in the reply that the plaintiff No.1 Smt. Rameshwari Devi
got the aforesaid property in partition and she sold out her
portion by way of registered sale deed dated 4.6.2012 and
prayed to dismiss the applications.
After hearing learned counsel for the parties, the
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learned trial Court rejected the applications filed in the suit as
well as in the temporary injunction application vide impugned
orders dated 23.10.2013 and 23.10.2013. Being aggrieved with
the impugned orders, the defendant No.1/petitioner filed the
present writ petition before this Court.
Mr. Alok Chaturvedi, learned counsel for the petitioner
submitted that Saiyyad Iftikhar Ahmed is necessary and proper party for proper adjudication of the suit proceedings because he purchased the property bearing No.18/20, Pannigram Chowk, Ajmer during pendency of the present suit proceedings, therefore, his impleadment is lawfully required as party defendant, but the learned trial Court has failed to appreciate the above facts and rejected both the applications. Learned counsel further submitted that the judgment dated 13.4.2012 passed by the Court of Civil Judge (Jr.Division), West, Ajmer has attained finality, as the same has not been challenged by the plaintiffs and, therefore, the property bearing No.18/20 remained joint property and thus, the plaintiffs themselves sought partition in respect of the aforesaid property. But the learned trial Court has failed to consider this very important aspect of the matter that once a competent civil court declared the property No.18/20 as joint property and the plaintiffs also sought partition particularly for the property bearing No.18/20 meaning thereby, the property is still undivided and, therefore, the plaintiff No.1 has no right to execute the alleged sale deed dated 4.6.2012 in favour of Saiyyad Iftikhar Ahmed.
Learned counsel for the petitioner also submitted that the learned trial Court has not considered and appreciated the (7 of 15) [CW-20755/2013] provisions of Section 52 of the Transfer of Property Act, 1882, as Section 52 prohibits the transfer of property during pendency of lis and the purchase can only be done with permission of the Court. Learned counsel also contended that admittedly in the present case, no permission was sought or obtained from the Court to sell the property bearing No.18/20 and the sale made by plaintiff No.1-Rameshwari Devi in favour of Saiyyad Iftikhar Ahmed by way of sale deed is clearly hit by Section 52 of the Transfer of Property Act and, therefore, the purchaser of the property pending lis is necessary and proper party for effective and proper adjudication of the suit proceedings, but the learned trial Court unnecessarily swayed by this important aspect of the matter and rejected the applications in a routine manner, that too without assigning any specific reason and thereby committed serious jurisdictional error.
Learned counsel for the petitioner further contended that the learned Court below has also failed to consider the provisions of Order 1 Rule 10 CPC, which specifically provides for effectual and complete adjudication of all the questions or controversies involved in the suit. The court may, either upon or without the application of either party, may order for impleadment of any person in whose absence the suit cannot be properly adjudicated, but the learned trial Court has completely overlooked the aforesaid provisions. In support of his submissions, learned counsel for the petitioner has placed reliance on the judgment of Hon'ble Supreme Court in the case of Savitri Devi Vs. District Judge, Gorakhpur & Ors reported in AIR 1999 SC 976.
(8 of 15) [CW-20755/2013] Per contra, Mr. Reashm Bhargava learned counsel for the plaintiffs/respondents No.2 to 4 controverted the submissions made on behalf of the defendant No.1/petitioner and contended that the impugned orders do not suffer from any illegality and do not constitute jurisdictional error and in absence of any jurisdictional error, the petitioner has no right to invoke the writ jurisdiction of the Court.
Learned counsel for the respondents further submitted that a party to a litigation is free to deal with his property and a transferee pendente lite is bound by the decree and is neither necessary nor proper party. Learned counsel also submitted that in order to prolong the proceedings, the defendant No.1 moved the applications under Order 1 Rule 10 CPC seeking impleadment of Saiyyad Iftikhar Ahmed as defendant No.6 and prayed to dismiss the petition being devoid of any merit. In support of his submissions, learned counsel for the respondents No.2 to 4 has placed reliance on the judgments of Nijamuddin Vs. State of Rajasthan & Ors reported in 1994 (2) RLR 132, Narayan Chandra Garai & Ors Vs. Matri Bhandar Pvt. Ltd & Anr. reported in AIR 1974 Calcutta 358, Sanjay Verma Vs. Manik Roy & Ors reported in AIR 2007 SC 1332, Mst. Koyalee Vs. State of Rajsthan & Ors reported in 2008 (6) WLC (Raj.) 864, Pranakrushna & Ors. Vs. Umakanta Panda & Ors. reproted in AIR 1989 Orissa 148, Parvathamma B. N. & Ors Vs. B. M. Nagaraja Setty & Ors reported in 1988 (2) Karnataka Law Journel 387, Mazhar Hussain Vs. Shafi Mohammed & Ors. reported in 1969 WLN 316, Anil Kumar Singh Vs. Shivnath Mishra reported in 1995 (1) Civil Court (9 of 15) [CW-20755/2013] Cases 531 (SC) and Girdhari Lal Vs. Nagar Parishad & Anr. RLR 1987 (II) 462.
I have considered the rival submissions made on behalf of learned counsel for the respective parties, gone through the record made available to me and relevant legal provisions and also the case law cited before me.
In Savitri Devi Vs. District Judge, Gorakhpur & Ors (supra), the appellant filed a suit against her sons for decree of maintenance and creation of charge over ancestral properties. Interim injunction was granted by the Court restraining sons/respondents from alienating property. However, property was sold by one of the respondents. Hon'ble Apex Court held that purchasers are necessary party to the suit and their impleadment is necessary for deciding questions whether sales were committed in contempt and disregard of injunction and whether purchasers were bonafide transferees. It was also held that avoiding of multiplicity of suits is one of the object of the said provision.
In Nijamuddin Vs. State of Rajasthan & Ors (supra), the Coordinate Bench of this Court has held that it is absolute choice of the plaintiff to seek relief against a particular person or persons and this choice cannot be curtailed at the behest of the defendant. Admittedly, the present suit has been filed by the plaintiff/respondents No.2 to 4 for partition of the undivided properties mentioned in Para No.2 of the plaint. It is settled legal position that the position of the parties in a partition suit is different from the position of the parties in ordinary suits. In a suit for partition, every party is in the position of the plaintiff, as such the law laid down by Coordinate Bench of this Court is (10 of 15) [CW-20755/2013] not applicable to the present case.
In Narayan Chandra Garai & Ors Vs. Matri Bhandar Pvt. Ltd & Anr. (supra), it was a suit for recovery of amount. The defendant was restrained not to transfer her property. Applicant of application under Order 1 Rule 10 CPC came with a case that he purchased the property from the defendant and has paid substantial amount towards the sale consideration, and is mortgagee of the property also. Hon'ble Calcutta High Court relying upon the judgment of Hon'ble Supreme Court in Deputy Commissioner, Hardoi Vs. Rama Krishna reported in AIR 1953 SC 521, opined that the applicant is neither a proper party nor a necessary party and dismissed the application found to be misconceived. In Deputy Commissioner, Hardoi Vs. Rama Krishna (supra), it was held that eventual interest of a party in the fruits of litigation cannot be held to be a true test of impleading parties according to Civil Procedure Code. Due to difference in the facts and circumstances, the case law cited by learned counsel for the respondents, has no application in the present case.
In Sanjay Verma Vs. Manik Roy & Ors (supra), the applicants were transferees of the property in dispute during pendency of the suit after the order of injunction was passed. Hon'ble Apex Court held that a transferee pendente lite is bound by the decree just as much as he was a party to the suit. It was also held that respondents being transferee pendente lite without leave of the Court cannot as a right seek impleadment in the suit, which was in the instant case pending for a long time. Whereas, in the present suit for partition of the properties, the application (11 of 15) [CW-20755/2013] is not filed by the transferee, but by the defendant of the suit. Due to difference in the facts and circumstances of the case, the law laid down by Hon'ble Apex court in this case, is not of much help to the respondents.
In the case of Hardeva Vs. Ismail & Ors. (supra), question before the Coordinate Bench of this Court was whether a vendor is a necessary party to the suit for pre-emption. The Coordinate Bench held that vendor is not a necessary party in pre-emption suit.
In the case of Mst. Koyalee Vs. State of Rajasthan & Ors (supra), subsequent purchasers themselves filed applications to implead them as party to the suit, which were dismissed by Coordinate Bench of this court observing that purchasers being bound by the decree as be passed in suit, in terms of Section 52 of the Transfer of Property Act, therefore, impleadment of subsequent purchaser or purchasers is not necessary. Whereas in the present case, the application for impleadment is filed by party to the suit and not by the subsequent purchaser, as such the law laid down in this case is distinguishable and is not of much help to the respondents.
In the case of Parankrushna & Ors Vs. Umakanta Panda & Ors (supra), Hon'ble Orissa High Court has held that in a suit for declaration of title, a transferee from the defendant pendente lite is neither a necessary nor a proper party in as much as he would be bound by the decree in the suit in view of the principle contained in Section 52 of the Transfer of Property Act.
In Parvathamma B. N. & Ors Vs. B. M. Nagaraja Setty & Ors (supra), the plaintiffs filed a suit for partition.
(12 of 15) [CW-20755/2013] Thereafter the plaintiff filed an application under Order 1 Rule 10 CPC to implead one Chandramma, who is said to be purchaser of a property allegedly sold by defendant No.1, who is none other than the husband of plaintiff No.1 and father of plaintiffs No.2 to
5. Hon'ble Karnataka High Court observed that the application has to be rejected on the ground that the sale was prior to filing of the suit. It was also observed that without an amendment to the plaint that such a sale is not binding on the plaintiffs, the purchaser does not become a necessary party in a partition suit.
In Mazhar Hussain Vs. Shafi Mohammed & Ors (supra), the petitioner filed an application for being impleaded as defendant alleging that he was the owner and in possession of the portion about which the suit was brought and that the plaintiff was his licensee and he had no right to maintain the suit. The Coordinate Bench of this Court has held that if everyone who comes forward and claims a proprietory interest in the subsequent matter of the suit, is impleaded as a party, there would never be an end to such a trial and plaintiff will be embarrassed. The plaintiff being generally dominus litus and cannot be compelled to fight a litigant not of his own choice, unless such a person is required by a positive rule of law. Order 1 Rule 10 (2) CPC is applicable to two classes of cases only. One class is where he ought to have been joined as plaintiff or a defendant and is not so joined. That is a case of necessary party. The other class is where without his presence the question in the suit cannot be effectually and completely decided.
In the case of Anil Kumar Singh Vs. Shivnath Mishra (supra), the suit was for specific performance of the (13 of 15) [CW-20755/2013] contract. The plaintiff filed an application under Order 6 Rule 17 CPC seeking leave to amend the plaint by impleading respondent also as a party defendant in the suit contending that Shivnath Mishra, the vendor, had colluded with his sons and wife and had obtained a collusive decree in another suit. By operation thereof, they became co-sharers of the property to be conveyed under the agreement and, therefore, the respondent is a necessary and proper party. The trial Court dismissed the application and the High court dismissed the civil revision. The petitioner approached the Apex Court by way of Special Leave Petition. The Apex Court has held that a person, who has got his interest in property declared by an independent decree not a party to agreement of sale, is not a necessary and proper party for effectually and completely adjudicate upon and settle all questions involved in the suit.
In the case of Girdhari Lal Vs. Nagar Parishad & Anr. (supra), a suit for perpetual injunction was filed against Municipality. The applicant wanted to be impleaded as party to the suit merely because he feels that he will be in position to defend the suit in a better manner than the Municipality itself. The trial court allowed the application. The Coordinate Bench of this Court in revision, has held that this can be no ground for impleading any person as party under Order 1 Rule 10 CPC. Due to difference in the facts and circumstances of the case, the law laid down by Coordinate Bench in the aforesaid case, is not applicable to the present case.
The facts stated in the earlier paragraphs are sufficient to show that the plaintiff/respondents No.2 to 4 filed a suit (14 of 15) [CW-20755/2013] against the present petitioner and respondents No.5 to 8 for partition of the properties mentioned in Para No.2 (a), (b) & (c) of the plaint. During pendency of the suit, the plaintiff/respondent No.2 Smt. Rameshwari Devi executed a sale deed in favour of 'Saiyyad Iftekhar Ahmed S/o Hazi Saiyyad Aftab Ahmed' (respondent No.9 herein) without obtaining leave of the Court. The application for impleadment of the purchaser as defendant No.6 to the suit has been filed by petitioner/defendant No.1 and not by the said purchaser. As the suit has been filed for partition of three properties mentioned in para No.2 of the plaint and every party in a suit for partition is regarded to be in a position of the plaintiff, the doctrine of dominus litus does not apply in this case. The cases cited by learned counsel for the respondents are either not applicable to the present case due to difference in facts and circumstances of the case and are distinguishable, or are not of much help for just decision of this petition. In the facts and circumstances of the case, the presence of purchaser of part of the property in dispute i.e. 'Saiyyad Iftekhar Ahmed S/o Hazi Saiyyad Aftab Ahmed' (respondent No.9 herein) is necessary before the Court in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit.
On consideration of submissions made on behalf of the respective parties and also gone through the record made available for my perusal as well as the relevant legal provisions and the case laws relied upon by the learned counsel for the parties, I find that the impugned orders passed by the learned trial Court in the civil suit as well as in temporary injunction application dismissing the (15 of 15) [CW-20755/2013] applications under Order 1 Rule 10 CPC filed by the petitioner/defendant No.1, are not sustainable.
Consequently, the writ petition is allowed and the impugned orders dated 23.10.2013 and 23.10.2013 passed by Additional District Judge No.2, Ajmer in Civil Suit No.56/2013 (103/2005) (206/2005) and in Civil Misc. (T.I.) Case No.30/2012 are quashed and set aside and the applications filed by the defendant/petitioner under Order 1 Rule 10 readwith Section 151 CPC in the suit as well as in the temporary injunction application, are allowed.
In view of above, the stay application also stands disposed of.
(DINESH CHANDRA SOMANI)J. A.Arora/-
(Reserved).