Gauhati High Court
Rakesh Karwa And Anr vs Indian Oil Corporation And 2 Ors on 31 October, 2019
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
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GAHC010020202019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP 16/2019
1:RAKESH KARWA AND ANR.
S/O LATE RAMESHWARLAL KARWA, R/O AT ROAD, PRAKASH BAZAR,
TINSUKIA TOWN, P.O., P.S. AND DIST.- TINSUKIA, (ASSAM).
2: SMT. GITA DEVI KARWA
S/O LATE RAMESHWARLAL KARWA
R/O AT ROAD
PRAKASH BAZAR
TINSUKIA TOWN
P.O., P.S. AND DIST. TINSUKIA (ASSAM).
PRESENTLY RESIDING AT- 105/203 SHRADDA APARTMENT
ADITYA VIHAR
VAISHALI NAGAR
JAIPUR-21, RAJASTHAN
VERSUS
1:INDIAN OIL CORPORATION AND 2 ORS.
HAVING ITS REGISTERED OFFICE AT G-9, ALI YAVAR JUNG MARG,
BANDRA (EAST), MUMBAI- 51. OTHER OFFICES AT DIFFERENT PLACES
INCLUDING THE ONE AT TINSUKIA TOWN, P.O., P.S. AND DIST. TINSUKIA,
ASSAM.
2:MAHESH KARWA
S/O LATE RAMWSHWARLAL KARWA
R/O.- AT ROAD
PRAKASH BAZAR
TINSUKIA TOWN
P.O., P.S. AND DIST.- TINSUKIA (ASSAM).
3:PRAKASH KARWA
S/O LATE BHANWARLAL KARWA
R/O.- AT ROAD
PRAKASH BAZAR
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TINSUKIA TOWN
P.O., P.S. AND DIST.- TINSUKIA (ASSAM).
PRESENTLY RESIDING AT- MERLIN NORTH STAR
BLOCK 2
FLAT NO. 4J 70
PC GHOSH ROAD
LAKE TOWN
KOLKATA-48
Advocate for the Petitioner : MR G N SAHEWALLA
Advocate for the Respondent : MR. M K CHOUDHURY (R1)
BEFORE
THE HON'BLE MR JUSTICE PRASANTA KUMAR DEKA
ORDER
31. 10. 2019 Heard Mr. G N Sahewalla, learned Senior Counsel assisted by Ms. S Kotokey, learned counsel for the petitioners. Also heard Mr. M K Choudhury, learned Senior Counsel assisted by Mr. A Barkakati, learned counsel for the respondent No.1 and Mr. S P Choudhury, learned counsel for the respondent Nos. 2 and 3.
In this revision petition the order dated 05.01.2019 passed in Misc (J) case No. 140/2018 arising out of T.S. No. 34/2018 by the learned Civil Judge, Tinsukia is put under challenge by the plaintiffs/ petitioners. T.S. No. 34/2018 was filed by the present petitioners as the plaintiffs against the respondent Nos. 2 and 3 for the following reliefs:
(a) For declaration that the plaintiffs and the defendants are joint owners, having equal right, title and interest over the suit property and the defendants have no right to transfer the "suit property" or any part thereof, to any one;
(b) To grant a decree for partition of the suit property declaring the plaintiffs' share over and in respect of the "suit property", by metes and bound with an appropriate direction to the defendants to make and effect the partition amicably within a stipulated period and in default to effect and make partition of the suit property and in future to appoint a Commissioner in order to effect and make partition of the suit property by metes and bound between the plaintiffs and the defendants;
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(c) To grant a decree for delivery of the share of the plaintiffs after demarcating by metes and bounds and in the event of obstruction and or refusal by the defendant to deliver the share of "suit property", in favour of plaintiffs, in that case to put the plaintiffs in possession on his portion after evicting the defendants and their dependants and any other persons claiming through or under them over the share of the plaintiffs in the suit property after removing all the construction/ structures standing thereon;
(d) For permanent injunction restraining the defendants and/ or any other persons claiming under or through them from making any sorts of construction or modification or alteration or lease out or otherwise from transferring the suit property or any part thereof, to any other person or any organization including IOC (AOD) Ltd. And also from changing the nature and character of the suit property in any manner and also from doing any act prejudicial to the interest of the plaintiffs;
(e) For granting ad-interim temporary injunction order in light of the prayer, made in para (d) above, till disposal of the suit;
(f) Grant leave under Order II Rule 2 of the Code of Civil Procedure;
(g) Grant leave under Order VI Rule 17 of the CPC;
(h) Cost of the suit;
(i) Any other relief or reliefs to which the plaintiffs are found to be entitled under the law, equity and justice;"
The respondent Nos. 2 and 3 entered appearance. The respondent No. 1 filed an application under Order 1 Rule 10 (2) of the CPC seeking for its impleadment as a defendant in the suit. It is the contention in the said petition registered as Misc (J) case No. 140/2018 that the respondent No. 1 Company is running a retail outlet on a plot of land measuring 15,500 sq. ft. on lease which forms part of the suit land. On the strength of the said lease the respondent No. 1 raised permanent construction and other requirements in order to run the retail outlet of petroleum products. Thereafter it appointed M/S Dhananjay Enterprise a partnership firm as its dealer to run the retail outlet on the strength of the licence issued by the respondent No. 1. It is also stated in the said petition that the plaintiffs/ petitioners Page No.# 4/6 prayed for the decree for delivery of possession after demarcating and removal of structure standing thereon. In the prayer for permanent injunction the plaintiffs/ petitioners sought for restraining the defendants from granting lease of the suit land to the respondent No. 1. The agreement for lease was executed on 01.12.1998 which was for 15 years with stipulation for renewal for further period of 20 years on expiry of the said terms and condition except the rate of rent. The said period of lease expired on 31.12.2012 and the respondent No. 1 through letter dated 18.08.2018 requested the lessors (respondent Nos. 2 and 3) for executing a lease deed. However, as the lessors demanded monthly rent an exorbitant amount of Rs. 88,000/- the said process of renewal of the lease deed yet not completed. Another plea was raised that the respondent No. 1 is protected within the purview of Assam Non-Agricultural Urban Areas Tenancy Act, 1955 from being ejected from the demised premises. For the said reason respondent 1 claims itself to be a necessary party and to be impleaded in the suit as one of the defendants. The plaintiffs/ petitioners and the defendants/ respondent Nos. 2 and 3 filed their separate written objections against the impleadment application by the respondent No. 1. The learned court below vide the impugned order allowed the said impleadment application. The said order is the impugned order herein this revision petition as stated hereinabove.
Mr. Sahewalla, learned Senior Counsel submits that the learned court below while allowing the said application for impleadment failed to consider the real intent and purpose and the nature of the suit. The consideration that the respondent No. 1 is protected within the purview of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 is out and out perverse. In support of the said submission Mr. Sahewalla relies the lease deed which is an un-registered one and further the term of the said lease had already expired and no further renewal had been taken placed. Referring the case of K.B. Saha and Sons Pvt. Ltd. Vs. Development Consultant Limited reported in (2008) 8 SCC 564 he submits that the respondent No. 1 cannot claim his right on the strength of the un-registered lease deed inasmuch as already held by the Hon'ble Supreme Court that the said document is not at all admissible as evidence for want of registration. The suit is for partition of the suit land which is more or less about 15,500 sq.ft. and out of that more or less 10,000 sq. ft. is covered by the lease and if the partition is affected the respondent No. 1 had nothing to do in respect of Page No.# 5/6 the share determined by the learned court below. Relying clause 3 (iii) of the said lease agreement annexed to this petition, it is submitted that as per the said clause the respondent No. 1 failed to come forward for renewal of the lease. Even though a letter was issued to M/s Dhananjay Enterprise but against the reply expressing the intention for renewal of the lease subject to enhancement of the monthly rent there was no response from the respondent No. 1 and as such defendant No. 1 has no right to interfere in the dealings by owners of the suit land. Referring back to the nature of the suit, it is submitted by Mr. Sahewalla further that a person may be added as a party defendant to the suit if he is a necessary party and without his presence no decree can be passed. It is submitted that the condition precedent is that the court must be satisfied that the presence of the party to be added would be necessary in order to enable the court to effectually and completely adjudicate upon and settle all question involved in the suit. To bring a person as party defendant is not substantive right but one of procedure and the court has discretion in its proper exercise. By submitting so Mr. Sahewalla relies on the case law of Anil Kumar Singh Vs Shivnath Mishra reported in (1995) 3 SCC 147. Summing up his submission Mr. Sahewalla sought for setting aside the impugned order.
Mr. MK Choudhury, learned Senior Counsel countering the submission of Mr. Sahewalla submits that as there are specific relief sought against the respondent No. 1 inference can very well be arrived that the respondent No. 1 is a necessary party in the suit. It is submitted that the pendency of the suit came to the notice of the respondent No. 1 only on receipt of the notice from the dealers' Lawyer that there is an order of injunction not to renew the lease deed and thereafter this impleadment application was filed. By submitting so, Mr. Choudhury brings to the notice of the court the intent of the parties in the suit is to claim relief against the respondent No. 1 as such no interference in the impugned order is required on the ground that the respondent No. 1 is a necessary party to the suit. Mr. S P Choudhury, learned counsel on the other hand supports the submission of Mr. Sahewalla, the learned Senior Counsel for the petitioners.
I have considered the submissions of the learned counsel. There is no denying fact that if a party wanted to be impleaded he must be either necessary or a proper party. Necessary party is the one in absence of whom no decree could be passed in a suit. On the other hand Page No.# 6/6 proper party is the one in whose absence a decree could be passed in a suit subject to factual matrix of each case but for decision of the real disputes raised in the suit the presence of the proper party is required. The learned court below had given stress while deciding the impleadment application in respect of the substantial right which the respondent No. 1 pleaded before it. No doubt that is one of the reqiorements for deciding an application for impleadment. But, as held by the Hon'ble Apex Court in Anil Kumar Singh Vs Shivnath Mishra reported in (1995) 3 SCC 147 (supra) the condition precedent is that the court must be satisfied that the presence of the party to be added would be necessary in order to enable the court to effectually and completely adjudicate upon and settle all question involved in the suit. On the perusal of the relief sought for by the plaintiffs/ petitioners in T.S. No. 34/2018 amongst others the petitioners claimed for the relief for the permanent injunction, restraining the defendants and or any other persons claiming under or through them from making any sorts of construction or modification or alteration or lease out or otherwise from transferring the suit property or any part thereof, to any other person or any organization including IOC (AOD) Ltd. In my opinion seeking for the said relief by the petitioner is sufficient ground to conclude that the cause of action for the suit arose against the respondent No. 1 and as such the respondent No. 1 is a necessary party in the suit. Though the learned court below while deciding the substantial right of the respondent No. 1 over the suit property took note of the protection of Assam Non-Agricultural Urban Areas Tenancy Act, 1955 the said finding cannot be held to be a substantive finding rather it must be treated as a casual finding and if the newly impleaded respondent No. 1 took up the defence under the said Act, 1955 the same must be decided judiciously keeping in view the evidence on record and the other materials on record.
Accordingly, I do not find any jurisdictional error in the impugned order and as such this revision petition stands dismissed. Interim order passed earlier stands vacated. No cost.
JUDGE Comparing Assistant