Gauhati High Court
Ved Mitra Verma vs Dharma Deo Verma And Anr. on 13 October, 2006
Equivalent citations: 2007(3)GLT191
Author: T. Vaiphei
Bench: T. Vaiphei
JUDGMENT T. Vaiphei, J.
1. This Revision petition, wrongly registered as a writ petition, under Article 227 of the Constitution of India is directed against the judgment and order dated 24.11.2005 passed by the learned Additional Deputy Commissioner, Shillong in FAO No. 19(T) 2004 upholding the order dated 18.10.2004 passed by the learned Assistant to Deputy Commissioner, Shillong in Title Suit No. 25(T) 1992 rejecting the prayer of the petitioner for impleading him as one of the defendants in the suit.
2. I have heard Mr. R. Choudhury, the learned Counsel for the petitioner and Mr. M.F. Qureshi, the learned Counsel for the respondent No. 1, I have also heard Mrs. R D.B. Baruah, the learned Counsel for the respondent No. 2.
The facts, which are not in dispute for disposal of this revision petition, are that the petitioner, claiming himself to be the co-owner of the suit property situated at Nongthymmai, by virtue of inheritance from his father the late Satyanand Verma, filed an application under Order I Rule 10(2) of the Code of Civil Procedure before the learned Assistant to Deputy Commissioner, Shillong for adding him as one of the defendants in the suit filed by the respondent No. 1 against the respondent No. 2 on the ground that he is a necessary party being one of the legal heirs of the said Satyanand Verma from whom he claimed to have inherited the suit property alongwith the petitioner and other legal heirs. The suit is question being Title Suit No. 25(T) 1992 has been filed by the respondent No. 1 for ejecting the respondent No. 2 from the suit premises. This case of the petitioner is that the suit was filed by the respondent No. 1 without his consent. According to the petitioner, the respondent No. 1 was intending to grab the suit property on the basis of the false and fabricated will dated 20.11.1974 purported to have been executed by their late father i.e., Satyanand Verma in his favour. In furtherance of such intention, the respondent No. 1 was alleged to have applied for probate by filing L/S Misc. Case No. 38(T) 92 before the learned Additional Deputy Commissioner, Shillong which was contested by the petitioner. The learned Additional Deputy Commissioner, by his order dated 13.7.2004 rejected the probate petition whereupon an appeal was preferred by him before this Court which is pending for adjudication. The petitioner laid emphasis on the fact that no interim order was passed by this Court while admitting the appeal. It is against this that the petitioner filed the application for impleadment on 6.8.2004 in Title Suit No. 25(T) of 1992. The learned Assistant to Deputy Commissioner, after hearing the parties, by his order dated 18.10.2004 rejected the application of the petitioner and proceeded to fix a date for argument. The appeal filed by the petitioner against the order dated 18.10.2004 before the learned Additional Deputy Commissioner was dismissed by the judgment and order dated 24.11.2005, which is now under challenge in this revision petition.
3. Mr. R. Choudhury, the learned Counsel for the petitioner assails the impugned judgment and order by contending that since the petitioner is admittedly the co-owner of the suit property, and in view of the fact that the' probate petition filed by the respondent No. 1 having been rejected by the learned Additional Deputy Commissioner, the respondent No. 1 cannot claim to be the sole owner of the suit property or file the suit for eviction against the respondent No. 2 without his consent. It is also submitted by the learned Counsel for the petitioner that inasmuch as the application for impleadment was filed by the petitioner after rejection of the probate case on 13.7.2004 by the learned Additional Deputy Commissioner, the appellate court acted with material irregularity in holding that the application preferred by the petitioner after almost 12 years could not be entertained. In support of his contention, Mr. R. Choudhury, the learned Counsel for the petitioner relies on the decisions of the Apex Court in Aliji Monoji and Co. v. Lalji Mavji and Ors. ; and Vijay Lata Sharma v. Raj Pal and Anr. 2004 AIR SCW 5134. On the other hand, Mr. M.F. Qureshi, the learned Counsel for the respondent No. 1 supports the impugned judgment and order and contends that inasmuch as the issue involved in Title Suit No. 25(T) 92, i.e., landlord and tenant relationship between the respondent No. 1 and respondent No. 2 has nothing to do with the dispute of title between the petitioner and the respondent No. 1, the petitioner cannot be impleaded as a party to the suit. In other words, the contention of the learned Counsel for the respondent No. 1 is that the petitioner is neither a necessary nor is his presence in the suit necessary for effective adjudication of the controversy involved in the suit in question. He, therefore, submits that the impugned judgment and order does not suffer from any jurisdictional error calling for the interference of this Court.
4. On perusal of the impugned judgment and order, it must be noticed that the petitioner had already instituted a title suit against the respondent No. 1 concerning the suit property in Title Suit No. 26(T) 90 before the learned Assistant to the Deputy Commissioner, Shillong which was dismissed and that the appeal preferred by the petitioner from the order dismissing the suit before the learned Additional Deputy Commissioner, Shillong in Misc. Civil Appeal No. 3 (T) 92 was also dismissed. This assertion of facts recorded by the appellate court in the impugned judgment and order appears to have been admitted by the petitioner. The appellate court also recorded the findings that the petitioner filed the application for impleadment after the lapse of almost 12 years of the institution of Title Suit No. 25(T) 92 when the suit had reached the stage of final argument. The appellate court also took the view that the phrase "issue involved in the suit" between the respondent No. 1 and the respondent No. 2 was one of the eviction and recovery of vacant possession whereas the issues sought to be raised by the petitioner if and when impleaded was one of title between him and the respondent No. 1 over the suit property, which could not be the subject matter of the suit filed by the respondent No. 1 against the respondent No. 2. On the basis of the aforesaid facts and circumstances, the appellate court held that the petitioner is not a necessary party and cannot be added or impleaded as a party to the suit in question.
5. In a civil suit, one can never overlook the legal position that the plaintiff is the dominos litis and that he cannot be compelled to sue a person against whom he does not claim any relief. In the instant case, it is an admitted position of the parties that the respondent No. 1 does not claim any relief against the petitioner nor does he intend to do so. Under Order I, Rule 10(2) of the Code of Civil Procedure, a person may be added as a party to a suit in two situations, namely, (1) when he ought to have been joined as plaintiff or defendant, and is not so joined, or (2) when, without his presence, the questions in the suit cannot be completely decided. There is no jurisdiction to add a party in any other case. The parties who ought to have been joined are thus, necessary parties and proper parties. Necessary parties are parties "who ought to have been joined", i.e., parties necessary to the constitution of the suit without whom no decree at all can be passed. In order that a party may be considered a necessary party defendant, two conditions must be satisfied, first, that there must be a right against him in respect of a matter involved in the suit and second, that his presence should be necessary in order to enable the court to "effectively and completely adjudicate upon and settle all the questions involved in the suit." A proper party, however, is one in whose absence, an effective order can be made, but whose presence is necessary for a complete and final decision on the question involved in the proceeding. In Sampatbai v. Madhusingh Gambhirji , the principles to be followed in adding the party under this Rule were succinctly stated as follows:
The test is not whether the joinder of the person proposed to be added as a defendant would be according to or against the wishes of the plaintiff or whether the joinder would involve an investigation into a question not arising on the cause of action averred by the plaintiff. It is whether the relief claimed by the plaintiff will directly affect the intervener in the enjoyment of his rights. It is not enough that the plaintiff's rights, and rights which the person desiring to be made a defendant wishes to assert should be connected with the same subject-matter. The intervener must be directly and legally interested in the answers to the questions involved in the case. A person is legally interested in the answer only if he can say that it may lead to a result that will affect him legally--that is by curtailing his legal rights.
6. Thus, a person who is neither a necessary nor a proper party cannot be allowed to be a party. Therefore, a finding that an intervener is a necessary or a proper party is a condition precedent to the exercise of jurisdiction under this sub-rule. The instant case is not one under which no decree can be made effectively without the presence of the petitioner. Nor is it one where any relief claimed against the respondent No. 1. Whether the petitioner can be a proper party is the next point to be considered. A proper party is one who has a defined, subsisting, direct and substantive interest in the issues arising in the litigation, an interest which will be cognizable in the court of law. That is an interest which the law recognizes and which the court will enforce. A person who is only indirectly or commercially interested in the proceeding is not entitled to be added as a party. If he is a person who is not interested in the questions which arise between the parties to the litigation, i.e., a question with regard to the right set-up and the relief claimed by one side, and withheld by the other, he cannot be impleaded as a party. The raison detre is that the trial of the suit will be embarrassed and considerable prejudice caused to the interested parties if irrelevant matters are allowed to be adjudicated by adding a new party whose interest in the litigation has no nexus to the subject matter of the suit. (See Firm of Mahadeva Rice and Oil Mills and Ors. v. Chennimalai Goundar ).
7. On the facts of this case, regard being had of the questions involved in the suit between the respondent No. 1 and the respondent No. 2 namely, whether the respondent No. 2 is liable to be evicted from the suit premises, the petitioner cannot even remotely claim that he is interested in the questions which arose between the respondent No. 1 and the respondent No. 2. On the other hand, impleading him in the suit will result in allowing irrelevant matters such as the dispute between the petitioner and the respondent No. 1 over title to the suit property to be adjudicated or considered, which has no nexus to the subject matter of the suit thereby causing embarrassment and considerable prejudice at least to the respondent No. 1, but I must hasten to add that the judgment in such a suit will not be binding on the petitioner. If the petitioner wishes to contest the title of the respondent No. 1 to the suit premises, he is always at a liberty, subject to the law of limitation or res judicata, as the case may be, to institute the title suit or a suit of the like nature against the respondent No.1 in a separate proceeding. Moreover, to allow the intervention of the petitioner in the suit will also change the character of the suit. A three-Judge Bench of the Apex Court, in Kasturi v. Uyyamperumal and Ors. , has now firmly settled the law when it held:
That apart, from a plain reading of the expression used in Sub-rule (2) Order 1 Rule 10 CPC "all the questions involved in the suit" it is abundantly clear that the legislature clearly meant that the controversies raised as between the parties to the litigation must be gone into only, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiff-appellant and the defendants inter se or questions between the parties to the suit and a third party. In our view, therefore, the court cannot allow adjudication of collateral matters so as to convert a suit for specific performance of contract for sale into a complicated suit for title between the plaintiff-appellant one hand and Respondents 2 and 3 and Respondents 1 and 4 to 11 on the other. This addition, if allowed, would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit would have to be gone into. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of Respondents 1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made herein earlier, Respondents 1 and 4 to 11 would not, at all, be necessary to be added in the instant suit for specific performance of the contract for sale.
Though the aforesaid decision was rendered in the context of a suit for specific performance of contract, in my judgment, the underlying principles are also applicable to the controversy involved in this revision petition. In the light of this decision, the cases cited by Mr. R. Choudhury, the learned Counsel for the petitioner, such as B. Valsala v. Sundaram Nadar Bhaskaran and Kunakarathanammal v. V.S. Loganatha Mudaliar and Anr. have lost their relevance. In the view that I have taken, there is no improper exercise of jurisdiction by the appellate court in upholding the order of the trial court rejecting the prayer of the petitioner for adding him as a party to the suit in question.
8. The parameters for exercising the supervisory jurisdiction of this Court under Article 227 of the Constitution of India are no longer re-integra. The supervisory jurisdiction under Article 227 is exercised only for keeping subordinate courts within bounds of their jurisdiction, and that the powers under Article 227 are wide and can be used to meet the ends of justice. They can be used to interfere even with an interlocutory order. However, the power under Article 227 is a discretionary power. It is a settled law that this power of jurisdictional superintendence must be exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. It is an equally settled law that the jurisdiction under Article 227 could not be exercised in the "cloak of an appeal in disguise". In Surya Dev Rai v. Ram Chander Rai and Ors. , the Apex Court reiterates that the supervisory jurisdiction under Article 227 will be invoked if it is found that a subordinate court has acted: (I) without jurisdiction, or (ii) has failed to exercise the jurisdiction which is available, or (iii) where it has jurisdiction but has acted in a manner not permitted by law and failure of justice or grave injustice has been occasioned thereby. The Apex Court further held that this jurisdiction is not available for correcting mere errors of fact or law and will be available only when, (i) the error is manifest and apparent on the face of record and (ii) grave injustice or gross failure of justice has been occasioned thereby. The impugned judgment and order does not suffer from any of the infirmities which can be said to fall within the aforesaid parameters laid down by the Apex Court; the interference of this Court is not called for.
9. For the reasons stated in the foregoing, this revision petition has no merit and is liable to be dismissed, which I hereby do by directing the parties to bear their own costs. Interim order, if any, stands vacated.