Himachal Pradesh High Court
Gopal Krishan vs Bimla Kumari And Another on 20 October, 2023
Author: Virender Singh
Bench: Virender Singh
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
OMP No. 18 of 2023 in Civil Suit No. 1 of 2020 Reserved on: 04.09.2023 Decided on: 20th October, 2023 .
Gopal Krishan .......Plaintiff
Versus
Bimla Kumari and another ...Defendants
Coram
of
The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the plaintiff: rt Mr. Mukul Sood, Advocate.
For the defendants: Mr. Ashwani Sharma, Senior Advocate with Mr. Ishan Sharma, Advocate for defendant No.1.
Ms. Sneh Bhimta, Advocate vice Ms. Shreya Chauhan, Advocate for defendant No.2.
Mr. B.S. Chauhan, Senior Advocate with Mr. Munish Dhatwalia, Advocate for the applicant.
Virender Singh, Judge The present application has been filed under Order 1 Rule 10(2) of the Code of Civil Procedure (hereinafter referred to as the 'CPC'), with a prayer to implead applicant, Golden Land Investors Welfare Society, through its President, in the present suit.
1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 20/10/2023 20:48:35 :::CIS 22. Plaintiff Gopal Krishan has filed the present suit, impleading Bimla Kumari and National Highway Authority of India (NHAI) as defendants, seeking the following relief:-
.
i. Pass decree for specific performance of agreement of sale in favour of the plaintiff and against defendant No. 1 in terms of the agreement of sale dated 21.10.2016 by payment of balance sale consideration of Rs. 1,32,50,000/- and deliver the possession of the property agreed to be sold to the plaintiff in pursuance to the agreement of sale dated 21.10.2016 namely:
of Land measuring 0-56-59 Hect.
a) Land measuring 0-02-57 Hectare comprised in Khasra No. 1578, Khata/Khatauni No. 71/88.
b) rt Land measuring 0-06-13 Hectare comprised in KhasraNo.
1579, Khata/Khatauni No. 71/95.
c) Land measuring 0-29-51 Hectare comprised in Khasra No. 1479, 1584, Khata/Khatauni No. 411 min/460 min.
d) Land measuring 0-02-07 Hectare being 5/18 of total land measuring 02-07-45 Hect. comprised under Khasra No. 1482/1, Khata/Khatauni No. 412/461.
e) Remaining Land measuring 0-01-17 Hectare after acquisition of land measuring 0-00-14 Hect. by Pra defendant No. 2 being 1/12 of total land measuring 0- 15- 75 Hect. comprised under Khasra No. 1481, 1482, Khata/Khatauni No. 413/462.
f) Land measuring 0-10-73 Hectare being 47/48 of total land measuring 0-10-96 Hect. comprised under Khasra No. 1601, 1602, 1577, Khata/Khatauni No. 414/463.
g) Land measuring 0-03-62 Hectare being 53/72 of totalland measuring 0-04-92 Hect comprised under KhasraNo. 1594, 1597, 1599, Khata/Khatauni No. 416/465.
h) Land measuring 0-00-79 Hectare being 1/4 of total land measuring 0-03-18 Hect. comprised under Khasra No. 1600, Khata/Khatauni No. 416/465 situated in Mahal and Phati Baragran Kothi Baragarh, Tehsil Manali, District Kullu, H.P., incorporated in the Nakal Jamabandi for the year 2017- 2018 (hereinafter called the suit land).
In all 8 Khatas which comes to total Land measuring 0-56-59 Hect situated in Muhal and Phati Badagran Kothi Badagarh Tehsil Manali District Kullu H.P. (hereinafter called the suit land) and in case the defendant No. 1 falls to execute and register the ::: Downloaded on - 20/10/2023 20:48:35 :::CIS 3 sale deed in favour of the plaintiff then the needful be got done by this Hon'ble Court through the officer of the court and the defendant No. 1 be directed to perform all acts necessary to facilitate and effectuate the transfer of the suit property in favour of the plaintiff; and in case for any reason whatsoever specific performance of the agreement is not TTES granted to the plaintiff, .
in that event, in the alternative, the plaint f be granted decree for the refund of Rs. 7,50,000/- alongwith interest at the rate of 18 per cent per annum from the date of payment till realization;
ii. Pass a decree of Rs. 11,91,897/- on account of recovery of compensation illegally received by defendant No. 1 from defendant No. 2 on account of acquisition of lard measuring 00-00-14 Hect, out of the suit land.
of iii. Pass a decree of Rs. 10.00 lacs on account of damages/compensation in addition to the relief of specific performance of agreement of sale dated 21.10.2016;
iv. Grant such other reliefs which this Hon'ble Court deems fit rt and proper in the facts and circumstances of the case, may also be passed in favour of the plaintiff.
v. Allow the costs of the suit to the plaintiff.
3. According to the applicant, the applicant-society has been registered with the Registrar of Societies, Himachal Pradesh under the H.P. Societies Registration Act, and on the basis of authorization, the present application has been moved on the ground that the plaintiff has willfully and intentionally not impleaded the applicant as party.
4. According to the applicant, similar application has been filed before the learned Civil Judge (Senior Division), Manali, District Kullu, H.P. in Civil Suit No. 4 of 2018, filed by the plaintiff. According to the applicant, society is interested party in the present lis, as it has been formed in order to protect the interest of the investors, who have ::: Downloaded on - 20/10/2023 20:48:35 :::CIS 4 invested their hard earned money with M/s Golden Land India Development Limited.
5. The subject matter of the lis is stated to have been .
purchased in the name of Bimla Kumari @ Rachna wife of Vinod Mahajan, Managing Director of the Company, as said Bimla Kumari hails from Himachal Pradesh. According to the applicant, she, being an agriculturist, had purchased 7 of bighas of agricultural land, in Mohal Phati Badagran Kothi Badagrah, Tehsil Manali, District Kullu, H.P. rt
6. Asserting its right to be impleaded on the fact that when, there were losses in the business of the Company, a Memorandum of Understanding was entered into between the office bearers of the Company with the investors, wherein it has specifically been mentioned that the land was purchased from the proceeds of the Company. The said document is stated to be executed at Chandigarh on 07.07.2005 and registered on 28.07.2005.
7. On the basis of above facts, a prayer has been made to allow the application.
8. Along-with application, photocopy of certificate of registration of the society dated 11.09.2020, copy of resolution of the society and Memorandum of Understanding, have been annexed.
::: Downloaded on - 20/10/2023 20:48:35 :::CIS 59. When put to notice, this application has been contested only by the plaintiff. A statement has been made on behalf of defendant No.1 that he does not intend to file .
reply to the present application.
10. In the reply filed by the plaintiff, it has been asserted that the application is not maintainable, the application is false, the applicant is estopped by its act and conduct to file of the present application and that the applicant has concealed material facts from the Court.
rt
11. Elaborating his stand, it has been asserted that the applicant had earlier moved similar application through one Sh. Kewal Krishan Sharma in Civil Suit No. 4 of 2018, titled as Gopal Krishan vs. Bimla Kumari, which was filed by the present plaintiff, against the defendants, for injunction with regard to the suit land. The said application was got withdrawn without any liberty reserved with the applicant.
In this regard, reference to the applications moved before Senior Civil Judge, Kullu, copy of statement and order dated 20.03.2023 has been made; and the same have been annexed with the reply.
12. According to the plaintiff, the suit for specific performance of agreement dated 21.10.2016 has been filed, in which, they are neither party, nor, are owner of the suit ::: Downloaded on - 20/10/2023 20:48:35 :::CIS 6 land. There was no privity of contract with the plaintiff.
Hence, the applicant is neither a proper nor necessary party, in the present lis.
.
13. On merits, it has been denied that the suit land was purchased from the funds of M/s Golden Land Development India Limited. When, the society was formed on 11.09.2020, according to the plaintiff, then, how the applicant could of assert the claim with respect to the suit land, which was agreed to be sold in the year 2016. The suit property was rt purchased and acquired by the defendant in the year 1997, much prior to the Memorandum of Understanding, dated 07.07.2005.
14. On the basis of above facts, a prayer has been made to dismiss the application.
15. Along-with the reply, copy of application under Order 1 Rule 10 CPC filed by the applicant, before the learned Civil Judge, Manali, District Kullu, H.P., has also been annexed.
Along-with the affidavit, Memorandum of Understanding, Special power of attorney, reply and the photocopy of order passed by the learned Civil Judge, have also been annexed.
16. The applicant filed rejoinder, denying the preliminary objections. In the rejoinder, the preliminary objections have been contested on the ground that the application under ::: Downloaded on - 20/10/2023 20:48:35 :::CIS 7 Order 1 Rule 10 CPC was withdrawn only qua the fact that the applicant and other investors came to know about the fact that the suit has been filed for the Memorandum of .
Understanding executed in the year 2005, but when, it was found that the suit for simplicitor injunction has been filed, then, the said application has been withdrawn.
17. The present suit has been filed for specific of performance of agreement dated 16.01.2007, as well as, for recovery of Rs.11,91,897/- being compensation amount of rt land acquired and amount allegedly received by defendant No.1 illegally and also for damages of Rs.10,00,000/-. In the suit, defendant No.1 Bimla Kumari has been impleaded being the owner of the suit property. Defendant No.1 when put to notice, has filed the written statement, in which, she has denied the execution of agreement to sell dated 21.10.2016, on the basis of which, suit for specific performance of agreement was filed.
18. The plaintiff is dominus litus and no party can be impleaded without the consent of the plaintiff, unless or until a finding is given that the proposed party is a necessary and proper party. By way of suit for specific performance, the relief, on the basis of agreement, dated 21.10.2016, has been sought. Admittedly, the applicant is ::: Downloaded on - 20/10/2023 20:48:35 :::CIS 8 not the party to the said agreement to sell nor claiming any right against the plaintiff.
19. In the suit for specific performance, persons, who are .
asserting the fact that they have any interest in the subject matter of the lis, are neither necessary nor proper party, as addition of such party will enlarge the scope of the suit.
Addition of the applicant, in the present suit, would result of into changing the nature of the suit from the suit for specific performance to the suit for title.
rt Hence, the applicant is neither necessary nor proper party.
20. Even otherwise, the right asserted by the plaintiff is not through the applicant, nor, at this stage, they are having any title in their favour. The present suit is not a inter-
pleader suit. The very base of the suit is the agreement to sell, to which, the applicant is not privy to it.
21. The Hon'ble Apex Court in Anil Kumar Singh vs. Shivnath Mishra 1995(1) Civil Court Cases 531 (S.C.), has elaborately discussed the provisions under Order 1 Rule 10 CPC. The relevant para 9 of the judgment is reproduced, as under:-
"9. A person may be added as a party defendant to the suit though no relief may be claimed against him/her provided his/her presence is necessary for a complete and final decision on the question involved in the suit. Such a person is only a proper party as distinguished from a necessary party. In Razia Begum v. Sahebzadi Anwar Begum & Ors.,1959 SCR 111, in a suit instituted for a declaration of legal status as a married wife, ::: Downloaded on - 20/10/2023 20:48:35 :::CIS 9 the question arose whether another person claiming to be the third wife and sons through her are necessary and proper party, who sought to come on record under Order 1 Rule 10(2). This Court held that in a suit for declaration, as regards status or legal character under S.42 of the Specific Relief Act, the rule that in order that a person may be added as a party must have a .
present or direct interest in the subject matter of the suit, is not wholly applicable, and the rule 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 to effectually and completely to adjudicate upon the controversy. In such suits the court is not bound to grant the declaration prayed for, on a mere admission of the claim by the defendant, if the court has reasons to insist upon clear proof, apart from the admission. It was therefore, held that a declaratory judgment since binds not only the parties of actually before the court but also the persons claiming through them respectively within the meaning of s.43 of the Specific Relief Act, they are proper parties. The petitioner is not claiming this legal status nor through the respondent. In Lala Durga Prasad and Anr. v. Lala Deep Chand & Ors., 1954 SCR 360, in a rt suit for specific performance the subsequent purchaser was held to be a necessary party. In this case the petitioner is merely seeking the specific performance of the agreement of sale. Section 15 of the Specific Relief Act, 1963, provides that except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by "any party thereto"; and under s. 16 the Court has been given discretion and personal bars to relief. Therefore, based on the fact situation, the court would mould the relief The respondent is neither a necessary nor a proper party to adjudicate upon the dispute arising in the suit so as to render an effective and complete adjudication of the dispute involved in this suit."
22. The applicant has asserted its right to be impleaded as defendant in the present case, mainly, on the basis of the fact that they have formed the society to protect the interest of investors. Whatsoever alleged in the application is against defendant No.1. If the applicant is ordered to be impleaded, it will change the very nature of the suit.
23. The applicant has independent right to establish its alleged right against defendant No.1. The documents, which have been relied upon by the applicant to get the relief under ::: Downloaded on - 20/10/2023 20:48:35 :::CIS 10 Order 1 Rule 10(2) CPC and the documents, which were allegedly executed between the Company namely, Golden Land India Development Limited, SCO 825, Mani Majra and .
the investors, defendant No.1 is not the signatory to these documents. The ownership of the suit land, as per revenue record, is recorded in the name of defendant No.1. This application has not been contested by defendant No.1.In of such situation allowing the application is nothing but to change the nature of the suit.
rt
24. Another point, upon which, the application deserves to be rejected is that the plaintiff has asserted his right in personam and not a right in rem. As such, whatsoever relief the plaintiff will get will not bind the applicant for asserting its independent right, on the basis of documents relied upon by them.
25. Considering all these facts, the application under consideration is dismissed.
C.S. No. 1 of 2020Replication, if any, be filed within a period of four weeks from today. List on 1st December, 2023.
October 20, 2023 ( Virender Singh )
(naveen) Judge
::: Downloaded on - 20/10/2023 20:48:35 :::CIS