Bombay High Court
Cozihom Co-Operative Housing Society ... vs Tajdar Amrohi S/O Kamal Amrohi on 19 May, 2021
Equivalent citations: AIRONLINE 2021 BOM 1603
Author: C.V. Bhadang
Bench: C.V. Bhadang
1-wpst-1929-21 & group.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST) NO. 1929 OF 2021
Cozihom Co-operative Housing Society Ltd.
A Cooperative Housing Society registered
under the relevant provisions of Maharashtra
Co-operative Societies Act, 1960, situated
at 251, Pali Hill, Bandra, Mumbai - 400 050. .. Petitioner
V/s.
1. Shri. Tajdar Amrohi s/o Kamal Amrohi
Age 74 years, Occ. Business, an Indian
Inhabitant of Mumbai, R/at. : Rambrant,
Pali Hill, Bandra, Mumbai - 400 050.
2. Mrs. Rukhsare Zehra Noori
Age : adult, Indian Inhabitant of Bombay,
R/at. Flat No.7, Sagar Sameer, Machhimar,
Versova Road, Mumbai - 400 063.
3. Arham Land Developers Pvt. Ltd.
(Formerly known as Dinku Property Private
Limited), a Registered Company incorporated
under the Companies Act, 1956, having its
registered office at 7, Shantinath Shopping
Centre, 1st Floor, S. V. Road, Malad (West),
Mumbai - 400 064. ..Respondents
WITH
WRIT PETITION (ST) NO. 1930 OF 2021
Cozihom Co-operative Housing Society Ltd.
A Cooperative Housing Society registered
under the relevant provisions of Maharashtra
Co-operative Societies Act, 1960, situated
at 251, Pali Hill, Bandra, Mumbai - 400 050. .. Petitioner
V/s.
1. Shri. Tajdar Amrohi s/o Kamal Amrohi
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Age 74 years, Occ. Business, an Indian
Inhabitant of Mumbai, R/at. : Rambrant,
Pali Hill, Bandra, Mumbai - 400 050.
2. Arham Land Developers Pvt. Ltd.
(Formerly known as Dinku Property Private
Limited), a Registered Company incorporated
under the Companies Act, 1956, having its
registered office at 7, Shantinath Shopping
Centre, 1st Floor, S. V. Road, Malad (West),
Mumbai - 400 064. ..Respondents
----
WITH
WRIT PETITION (ST) NO. 4009 OF 2021
WITH
WRIT PETITION (ST) NO. 4011 OF 2021
Shri. Tajdar Amrohi S/o. Kamal Amrohi
Age 74 years, Occ. Business, an Indian
Inhabitant of Mumbai, R/at. : Rambrant,
Pali Hill, Bandra, Mumbai - 400 050. .. Petitioner
V/s.
1. Cozihom Co-operative Housing Society
Ltd. a Cooperative Society registered under
the Maharashtra Co-operative Societies Act,
25 Pali Hill, Bandra, Mumbai - 400 050.
2. Arham Land Developers Pvt. Ltd.
Formerly known as Dinku Property Private
Limited, a Registered Company incorporated
under the Companies Act, 1956, having its
registered office at Shantinath Shopping
Centre, 1st Floor, S. V. Road, Malad (West),
Mumbai - 400 064. ..Respondents
----
Mr. Kevic Setalwad, Senior Advocate with Mr. Farid Karachiwala a/w
Mr. Sandeep Bhimekar and with Ms. Azraa Millwalla i/b J.Sagar &
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Associates for the Petitioner in WP(ST) No.1929/2021 & WP(ST)
No.1930/2021 and Respondent No.1 in WP (ST) No.4009/2021 and
WP (ST) No.4011/2021.
Mr. P.K. Dhakephalkar, Senior Advocate a/w. Mr. Shailendra Singh,
Mr. Vikas Kumbhar and Ms. Samruddhi Warang i/b M/s. P.V. Nichani
& Co. for the Petitioner in WP (ST) No.4009/2021 & WP (ST)
No.4011/2021 and Respondent No.1 in WP(ST) No.1929/2021 &
WP(ST) No.1930/2021.
Mr. Sharan Jagtiani, Senior Advocate a/w Mayur Khandeparkar with
Bhavin Gada and Ms. Najafiya i/b Harukhchand & co. for the Arham
Land Developers / Respondent No. 2 in WP (ST) No.1930/2021, WP
(ST) No.4009/2021 and WP (ST) No.4011/2021 and Respondent
No.3 in WP (ST) No.1929/2021.
----
CORAM : C.V. BHADANG, J.
RESERVED ON : 03rd FEBRUARY, 2021 PRONOUNCED ON : 19th MAY 2021 (Through Video Conferencing) JUDGMENT.
. All these petitions are between the same parties and essentially challenge the impleadment of Arham Land Developers Private Ltd (formerly known as Dinku Property Private Ltd) 'Arham Developers' for short as a party in the appeals before the Appellate Bench of the Small Causes Court. The petitions involve common questions of law and facts. The petitions are heard finally and they are being disposed of by this common judgment.
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2. The petitioner Cozihom Cooperative Housing Society Ltd ('Society' for short) is having five buildings A to E at Palli Hill Bandra Mumbai. The buildings A to C are situated on Land leased out to the petitioner society by the predecessor in title of the first respondent Tajdar Amrohi. RAE & R Suit no 184/525 of 1991 was filed by Kamal Amrohi, father of the first respondent for eviction against the petitioner, on the ground of arrears of rent under section 12(2) of the Bombay Rent,Hotel & Lodging Houses Rates Control Act 1947 ( Act for short) which suit has been decreed by the learned Small Causes Court on 16/17 October 2007. The petitioner has challenged the said judgment and decree in Appeal No.41/2008 which is pending before the Appellate Bench of the Small Causes Court at Mumbai. The execution of the eviction decree has been stayed on conditions.
3. The first respondent has filed another suit being TE &R suit no 14/24/2004 against the petitioner which has been dismissed on 16 April 2008. That is subject matter of challenge at the instance of the first respondent in Appeal No.193/2008 pending before the Appellate Bench, of the Small Causes Court at Mumbai.
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4. During the pendency of the appeals the first respondent has executed a deed of conveyance dated 19 May 2010 in favour of the third respondent Arham developers. According to the petitioner by the said deed the first respondent has not transferred the rights as landlord nor the benefit of the decrees which are subject matter of challenge in the two appeals. The tenancy rights have also not been attorned in favour of Arham Developers.
5. Be that as it may, on the basis if the said deed Arham Developers filed an application ( Ex 40) for impleadment in appeal no 41/2008 on 23 July 2012.
6. The first respondent claims to have "terminated" the deed of conveyance vide notice dated 15 April 2019. The first respondent has filed Suit (Lodging) No.1145/2019 challenging the said deed. Arham Developers has also filed Suit (Lodging) No 9811/2020 against the first respondent and the petitioner for a declaration that the deed of conveyance is valid and subsisting and binding between the parties. Both these suits are pending before the original side of this Court. By an order dated 4 January 2021 in IA (L) no 9993/2020 injunction is granted in favour of 'Arham Mamta Kale page 5 of 32 ::: Uploaded on - 20/05/2021 ::: Downloaded on - 20/05/2021 21:55:22 ::: 1-wpst-1929-21 & group.odt Developers' restraining the first respondent from creating third party rights in the suit property.
7. On 14 January 2021 the petitioner and the first and the second respondents filed an application/ pursis in Appeal no 41/2008 for disposal of the appeal as the dispute is settled between the parties. According to the petitioner it was not necessary for the Appellate Bench to have called say of Arham Developers on the said application, in as much as 'Arham Developers' was not yet impleaded as a party respondent.
8. The Appellate Bench however allowed application Exh.40 on 14 January 2021 for impleadment and granted time to 'Arham Developers' to file say to the application for disposal of the appeal in view of the settlement between petitioner and the first and the second respondent. It is this order which is subject matter of challenge in WP St No.1929/2021.
9. A similar order passed in Appeal No.193/2008 is challenged in WP St No.1930/2021, by the petitioner society.
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10. In Writ Petition No.4009/2011 petitioner Tajdar Amrohi (the appellant in Appeal No.193/2008) is challenging the order dated 14 January 2021 and is seeking permission to withdraw the appeal on the basis of the application/pursis filed before the Appellate Bench.
11. In WP St No.4011/2021 petitioner Tajdar Amrohi is challenging the order dated 14 January 2021 passed in Appeal No. 41/2008. The petitioner is seeking an order for allowing the appeal on the basis of the settlement and setting aside of the Judgment and decree dated 16/17 October 2007 passed in RAE & R Suit No.184/525 of 1991.
12. Before proceeding further it is necessary to state few more facts. Shandar Amraohi brother of Tajdar Amrohi died on 21 August 2011. The Trial Court by an order dated 27 November 2013 and the order passed by this Court on 18 February 2014 directed deletion of Shandar Amrohi from the array of parties. The Society, challenged the said order before the Supreme Court in Special Leave Petition(C) No.7386-87 of 2014 which is pending. 'Arham Mamta Kale page 7 of 32 ::: Uploaded on - 20/05/2021 ::: Downloaded on - 20/05/2021 21:55:22 ::: 1-wpst-1929-21 & group.odt Developers', sought impleadment before the Supreme Court in the aforesaid SLP which has been allowed on 11 September 2019 with liberty to the parties to raise their objections available under the law. It may be mentioned that Tajdar Amrohi filed an application being IA No.159743/2019 before the Supreme Court for deletion of Arham Developers from the SLP which is rejected on 10 February 2020. According to the petitioners, 'Arham Developers' cannot take shelter of the said order passed by the Supreme Court in seeking impleadment in the appeals pending before the Appellate bench and supporting the impugned orders.
13. I have heard the learned counsel for the parties. Perused record.
14. Mr. Setalwad, the learned Senior counsel for the petitioner society submitted that the application (Exh.40) was filed by 'Arham Developers' under Order XXII Rule 10 of CPC. He points out that Order XXII deals with death, marriage and insolvency of the party. He submitted that thus the application as framed and filed was not maintainable under Order XXII, in as much as there is neither death, marriage or insolvency, pursuant to which such application could have been filed. He submitted that Rule 10 of Mamta Kale page 8 of 32 ::: Uploaded on - 20/05/2021 ::: Downloaded on - 20/05/2021 21:55:22 ::: 1-wpst-1929-21 & group.odt Order XXII of CPC would apply only during the pendency of the suit. Thus, the application being filed in the appeal after the suit was already disposed of was not maintainable. He pointed out that sub- Rule 1 of Rule 10 of Order XXII deals with substitution and not addition of party. Thus, the application filed for addition / impleadment is not maintainable. He pointed out that sub-Rule 2 of Rule 10 of Order XXII is inapplicable as it deals with attachment of a decree.
15. It is next submitted that the impugned order is passed in violation of Section 52 of the Transfer of Property Act, 1882 ('TP Act' for short). He submitted that the deed of conveyance has been executed without obtaining any leave, during the pendency of the appeal. It is submitted that 'Arham Developers' is claiming impleadment on the basis of the rights based on the purported deed of conveyance dated 19 May 2010 which is disputed. He submitted that the said deed of conveyance has been terminated vide notice dated 15 April 2019 and Suit No.01/2021 (Lodging No.1145/2019) seeking cancellation of the purported deed of conveyance is pending. He pointed out that the suit filed by 'Arham Developers' for declaration that the deed of conveyance is valid and subsisting and binding on first respondent Tajdar Amrohi is also pending. In Mamta Kale page 9 of 32 ::: Uploaded on - 20/05/2021 ::: Downloaded on - 20/05/2021 21:55:22 ::: 1-wpst-1929-21 & group.odt short, it is submitted that the issue about the transfer / acquisition of title by 'Arham Developers' on the basis of the deed of conveyance being pending before the Original Side of this Court, it was not open for the Small Causes Court to have allowed the impleadment, more so, when the Small Causes Court cannot go into the question of title.
16. It is submitted that the society and the first respondent had sought disposal of the appeal in view of the settlement reached and a prayer was also made for referral of the dispute to mediation. It is submitted that the Appellate Bench was in error in refusing to act on the application / pursis filed on the basis of the settlement which would have put an end to a long standing dispute mostly involving Senior citizens. It is pointed out that 'Arham Developers' cannot place reliance on the order passed by the Hon'ble Supreme Court in as much as the Supreme Court has granted liberty to the parties to raise their objection available under the law by order dated 11 September 2019. On behalf of the petitioner reliance is placed on the decisions in (i) Ranbir Singh Vs. Asharfi Lal1 1(1995) 6 SCC 580 Mamta Kale page 10 of 32 ::: Uploaded on - 20/05/2021 ::: Downloaded on - 20/05/2021 21:55:22 ::: 1-wpst-1929-21 & group.odt
(ii) Foolchand Vs. Shabbir2 (iii) Kanaklata Das Vs. Naba Kumar 3
(iv) Patna Noorul Hoda Vs. B. N. Prasad 4 (v) Ramchandra Bhikachand Nahar Vs. Narhar Maruti Udavant & Ors. 5 (vi) Anil Dinmani Shankar Joshi and Anr. Vs. Chief Officer, Panvel Municipal Council, Panvel and Anr.6
17. Mr. Dhakephalkar, the learned Senior Counsel appearing for the petitioner Tajdar Amrohi has also challenged the impugned order on similar grounds. In so far as the withdrawal of Appeal No.193/2008, it is submitted that the petitioner as an appellant has every right to withdraw the appeal and once the appeal stood withdrawn, the Appellate Bench could not have directed impleadment of Arham Developers in the appeal. The learned Senior Counsel took strong exception to the Appellate Bench permitting Arham Developers to be impleaded as co-appellant without the permission of the petitioner. It is pointed out that no party can be directed to be added / impleaded as a plaintiff / appellant without consent of the plaintiff or the appellant as the case may be. The learned Senior Counsel was at pains to point out 21998(1) Mh.L.J. 429 3(2018) 2 SCC 352 4MANU/BH/1884/2017 5AIR 1996 Bom 338 62003 SCC Online 24 Mamta Kale page 11 of 32 ::: Uploaded on - 20/05/2021 ::: Downloaded on - 20/05/2021 21:55:22 ::: 1-wpst-1929-21 & group.odt that the impugned order in so far as impleadment in Appeal No.193/2008, would lead to a situation where the petitioner as an appellant is desirous of withdrawing the appeal while 'Arham Developers' as co-appellant is desirous of prosecuting the appeal. It is submitted that such a situation cannot be conceived and the Appellate Bench was oblivious of such a incongruous situation resulting from the impugned order.
18. In so far as the Appeal No.41/2008 is concerned, it is submitted that the society and the petitioner having settled their interse dispute had sought disposal of the appeal by setting aside decree dated 16/17 October 2007 and the same ought to have been allowed. It is pointed out that Rule 10 of Order XXII, speaks about continuation of suit / proceeding in the eventuality of assignment or devolution or any interest in the suit and does not mandate addition / impleadment of the party on account of such assignment / devolution. It is pointed out that 'Arham Developers' is neither a necessary nor a proper party to the appeal or the suit.
19. The learned Senior Counsel has extensively taken me through the impugned order passed in order to submit that the Appellate Bench has exceeded its jurisdiction by dwelling on the Mamta Kale page 12 of 32 ::: Uploaded on - 20/05/2021 ::: Downloaded on - 20/05/2021 21:55:22 ::: 1-wpst-1929-21 & group.odt nature and the effect of the deed of conveyance and the notice of cancellation when the Appellate Bench was not entitled to go into the question of title more so when the validity and the binding nature of deed of conveyance is subject matter of dispute before this Court. It is pointed out that the Appellate Bench was in error in coming to the conclusion that the parties had intended that 'Arham Developers' would be a beneficiary of the decree dated 16/17 October 2007 particularly when the eviction was granted by the said decree on the basis of the arrears of rent for the period prior to the alleged purchase of the suit property by 'Arham Developers'. In short, it is submitted that by virtue of the alleged deed of conveyance Arham Developers was not vested with any right, title or interest to prosecute the suit or the appeal or to claim the benefit of the decree of eviction. It is submitted that the Appellate Bench by virtue of "convoluted reasoning" has arrived at a wrong conclusion permitting impleadment.
20. Mr. Sharan Jagtiani, the learned Senior Counsel and Mr. Mayur Khandeparkar, the learned Counsel for the 'Arham Developers' has supported the impugned order. It is submitted that there is a registered deed of conveyance executed in favour of the 'Arham Developers' which still subsists. It is pointed out that the Mamta Kale page 13 of 32 ::: Uploaded on - 20/05/2021 ::: Downloaded on - 20/05/2021 21:55:22 ::: 1-wpst-1929-21 & group.odt party to a registered deed of conveyance cannot conceivably "terminate" the same as has been purported to be done by a notice dated 15 April 2019. It is submitted that in any event, the suit filed by the society seeking cancellation of the said deed of conveyance is still pending and in the absence of any order being passed in respect of the said deed of conveyance, 'Arham Developers' was entitled to seek impleadment. It is submitted that such impleadment has also been allowed by the Supreme Court in the SLP filed by the society. It is submitted that the impleadment has rightly been allowed on the basis of the deed of conveyance.
21. In so far as the ground based on the Arham Developers being allowed to be joined as co-appellant in Appeal No.193/2008 is concerned, it is pointed out that there is also an application for deletion/transposition of the appellant Tajdar Amrohi which is pending before the Appellate Bench. It is submitted that the impugned order does not suffer from any infirmity much less results into any manifest injustice on the parties and no case for interference is made out under Article 227 of the Constitution of India.
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22. I have carefully considered the rival circumstances and the submissions made.
23. At the outset, it is necessary to note that although certain allegation have been made as to the manner in which the appeals have been conducted and the parties were allegedly not allowed to go for mediation, I do not propose to go into these allegations more so, for the reason that an application for transfer was filed and was said to be pending at the relevant time. The learned counsel for the Petitioners submitted that the concerned Presiding Officer has since retired and therefore, nothing survives in the transfer application. As indicated earlier, it is not necessary to go into these allegations.
24. It further appears that initially the dispute was between the landlord Tajdar Amrohi and tenant Cozihom society. The deed of conveyance is dated 19 May 2010 and the impleadment was sought on 23 July 2012 and the application was pending. WP St. No.1929/2021 & WP St. No.4011/2021
25. The challenge in both these petitions is to the order dated 14 January 2021 passed by the Appellate Bench of the Small Mamta Kale page 15 of 32 ::: Uploaded on - 20/05/2021 ::: Downloaded on - 20/05/2021 21:55:22 ::: 1-wpst-1929-21 & group.odt Causes Court in Appeal No.41/2008. By the impugned order, the Application (Exh.40) filed by the 'Arham Developers' seeking impleadment as respondent No.1 (D) has been allowed. The facts which are undisputed and/or which are matters of record are that the predecessor-in-title of petitioner Tajdar Amrohi had leased out the land to the Cozihom Co-Operative Society and the suit filed for eviction against the society has been decreed on 16/17 October 2007 on the ground of arrears of rent which judgment and decree is subject matter of challenge in the appeal. It is a matter of record that during the pendency of the appeal, a Power of Attorney, re- development agreement and a registered deed of conveyance has been executed in favour of the 'Arham Developers' and on the strength of the same, the impleadment is sought. It is also a matter of record that there are two suits filed and pending before the Original Side of this Court. In one of the suit, there is a challenge to the deed of conveyance on the ground that the same has been cancelled by virtue of a notice dated 15 April 2019. The second suit is by Arham Developers seeking declaration that the deed of conveyance is subsisting and binding between the parties. It is further a matter of record that this Court by an order dated 4 January 2021 in Interim Application (L) No.9993/2021 in Suit (L) No.9811/2020 has granted interim relief in favour of Arham Mamta Kale page 16 of 32 ::: Uploaded on - 20/05/2021 ::: Downloaded on - 20/05/2021 21:55:22 ::: 1-wpst-1929-21 & group.odt Developers by which Tajdar Amrohi (Defendant No.1) or anybody on his behalf has been restrained from disposing of and/or creating any third party rights / interest in the suit property. A perusal of para 6 of the said order would indicate that this Court had prima facie found that the property "has admittedly passed". It would be worthwhile to reproduce para 6 of the said order as under.
6. Having heard parties, I am of the view that ad-interim relief would have to be granted since the property has admittedly passed. Pendency, if any, of a suit being Suit (Lodging) No.1145 of 2019 filed by the first defendant for cancellation of the deed of conveyance will be of no consequence at this ad-
interim stage. In the meantime, Mr. Purohit submits that in the suit filed by defendant No.1 all office objections have been complied.
26. It is true that application (Exh.40) was filed under Order XXII Rule 10 of CPC. Although, Order XXII pertains to death, marriage and insolvency of the parties, Rule 10 provides for procedure in case of assignment before final order in suit. Sub-Rule 1 of Rule 10 of Order XXII which is relevant for the purpose reads thus-
10(1) - In other cases of an assignment, creation or devolution of any interest during the pendency of a Mamta Kale page 17 of 32 ::: Uploaded on - 20/05/2021 ::: Downloaded on - 20/05/2021 21:55:22 ::: 1-wpst-1929-21 & group.odt suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
It can thus be seen that it provides for assignment, creation or devolution of any interest during the pendency of the suit.
27. The Supreme Court in the case of Amit Kumar Shaw and Another Vs. Farida Khatoon and Anr.7 has interalia held that under Order XXII Rule 10, no detailed inquiry at the stage of granting leave is contemplated. The Court has only to be prima facie satisfied for exercising its discretion in granting leave "for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution". It has further been held that the power of Court to add the party to a proceeding cannot depend solely on the question whether he had interest in the suit property. Para 10 and 12 of the judgment are apposite and may be reproduced thus-
10. The power of a Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, 7(2005) 11 SC 403 Mamta Kale page 18 of 32 ::: Uploaded on - 20/05/2021 ::: Downloaded on - 20/05/2021 21:55:22 ::: 1-wpst-1929-21 & group.odt however, will necessarily include an enforceable legal right.
12. Under Order XXII Rule 10, no detailed inquiry at the stage of granting leave is contemplated. The Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution. The question about the existence and validity of the assignment or devolution can be considered at the final hearing of the proceedings. The Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit.
28. It has further been held that the application under Order XXII Rule 10 can be made to the Appellate Court, even though the devolution of the interest occurred when the case was pending during the trial.
29. In the present case, the transfer although challenged by the vendor has happened during the pendency of the appeal. However, what is relevant is that the Supreme Court has held that an application under Order XXII Rule 10 can even be made to the Appellate Court. Even otherwise an appeal is a continuation of the suit and therefore the contention that Order XXII Rule 10 was Mamta Kale page 19 of 32 ::: Uploaded on - 20/05/2021 ::: Downloaded on - 20/05/2021 21:55:22 ::: 1-wpst-1929-21 & group.odt inapplicable for the reason that it applies to a suit, to my mind, cannot be accepted.
30. In Amit Kumar Shaw it has further been held that the transferee, on whom such interest devolves can be joined both under Order XXII Rule 10 or Order I Rule 10 of CPC, given that such transferee is bound by the final decree under Section 52 of the TP Act.
31. It can thus be seen that the principles which can be deduced are that the transferee can apply and can be joined both under Order XXII Rule 10 or Order I Rule 10 of CPC, albeit, if otherwise, a case for addition / impleadment is made out. At the stage of said addition / impleadment, a detailed inquiry is neither contemplated nor necessary and prima facie satisfaction of the Court will be sufficient and the power of the Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will necessarily include an enforceable legal right.
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32. It is further well settled that the label under which a particular application is filed or relief is sought is not decisive and the Court can always grant relief provided the power to grant relief otherwise exists albeit on satisfaction of the necessary conditions.
33. Coming to the present case, prima facie, there is a registered deed of conveyance which is now disputed by the vendors in respect of which the suit filed by the vendors and the counter suit filed by the vendee are pending. Prima facie, at this stage, there is no order about cancellation and/or invalidity of the said deed of conveyance.
34. It is true that the Small Causes Court and for the matter of that the Appellate Bench entertaining an appeal arising out of a suit before the Small Causes Court, cannot go into the question of title. The suit before the Small Causes Court essentially proceeds on the basis of existence of landlord-tenant relationship. The learned Senior counsel for the petitioners have strenuously urged that notwithstanding the settled position, the Appellate Bench has indeed dwelt on the aspect of title based on the deed of conveyance. In order to support the said contention, certain paragraphs from the impugned order were read out.
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35. In my considered view, it would not be necessary to go into the said contention, for the reason that the learned Single Judge of this Court entertaining Suit (L) No.9811/2020 filed by 'Arham Developers' has prima facie found that the property has 'admittedly passed' in paragraph 6 which has been reproduced above. In my considered view, the Small Causes Court would be bound by the said prima facie finding particularly when at the stage of impleadment, no detailed inquiry is contemplated.
36. Prima facie, in my opinion, there is a registered deed of conveyance in favour of 'Arham Developers' and although it is sought to be "cancelled" by virtue of a notice dated 15 April 2019, there is no order of cancellation or even a prima facie finding that the document is invalid or inoperative at this stage. Quite to the contrary, there is a prima facie finding that the 'property has passed' in favour of the 'Arham Developers' on the basis of which interim relief is granted to 'Arham Developers'.
37. The question is essentially whether prima facie the vendors have any subsisting interest in the face of the deed of Mamta Kale page 22 of 32 ::: Uploaded on - 20/05/2021 ::: Downloaded on - 20/05/2021 21:55:22 ::: 1-wpst-1929-21 & group.odt conveyance and/or whether the vendor 'Arham Developers' have acquired an interest thereby entering in the shoes of the landlord.
38. It is further necessary to note that the Hon'ble Supreme Court by an order dated 11 September 2019 has allowed the application for impleadment filed by 'Arham Developers' and permitted it to participate in the proceedings.
39. Coming to the ground based on Section 52 of the TP Act, it is evident that Section 52 of the TP Act does not contain any prohibition for transfer of property pendente lite. All that Section 52 provides is that in any suit or proceeding (which is not collusive) and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding "so as to affect the rights of any other party thereto", under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. It can thus be seen that the transfer pendente lite governed by Section 52 of the TP Act is subject to the decree or order passed in the suit or proceeding and such transfer cannot affect the rights of any other party to the suit. There is a clear distinction between a transfer pendente lite Mamta Kale page 23 of 32 ::: Uploaded on - 20/05/2021 ::: Downloaded on - 20/05/2021 21:55:22 ::: 1-wpst-1929-21 & group.odt governed by Section 52 of the TP Act and a transfer which is in breach of any prohibitory order passed by the Court. These two transfers clearly differ in so far as their effect is concerned. In the prior case, governed by Section 52, the transfer is only subject to the outcome or the order or the decree passed in the suit or proceeding as the case may be.
40. It is necessary to note that prima facie at this stage, the petitioner society as well as petitioner Tajdar Amrohi have filed a pursis claiming that there is a settlement amongst them and therefore, in order to examine the interest of the Arham Developers, the Appellate Bench was within its bounds to allow the impleadment.
41. A brief reference may be made at this stage to the decisions cited on behalf of the petitioner.
42. In Ranbir Singh , the Supreme Court has held that the question of title of the property is not germane, "however, may be examined incidentally", in a eviction suit between the landlord and the tenant. However, the question of title cannot be decided finally in the eviction suit.
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43. In the case of Foolchand , the non-applicant No.1 had sought eviction against the non-applicant No.2 claiming that he was a tenant and had defaulted in the matter of payment of rent. The applicant before this Court had sought impleadment on the ground that he was an owner of the suit property. This Court noted that there was a dispute between the applicant and the non-applicants regarding the ownership of the said premises. What is significant is that there was a decree passed in favour of the non-applicant No.1 by the Trial Court on adjudication although, this Court had directed maintenance of the status-quo. It was in these circumstances found that the order refusing impleadment did not require any interference. In the present case, there is no such decree passed in favour of the vendors and quite to the contrary, there is a prima facie finding that the property has passed.
44. In the case of Kanaklata Das, in an eviction suit, an application was filed under Order I Rule 10(2) of the CPC for impleadment as co-plaintiff on the ground that he was a member of the plaintiff's family and being so, has a right, title and interest in the suit premises. The Supreme Court interalia having noted that if there are co-owners or co-landlords, then one co-owner or co- landlord can file a suit for eviction, refused to allow the Mamta Kale page 25 of 32 ::: Uploaded on - 20/05/2021 ::: Downloaded on - 20/05/2021 21:55:22 ::: 1-wpst-1929-21 & group.odt intervention, as the respondent No.1 was found to be neither necessary nor proper party to the suit.
45. In the case of Anurag Mittal , the question was about validity of marriage contracted during pendency of an appeal against a decree for dissolution of earlier marriage. The question was whether the date of dismissal of appeal, against dissolution of marriage relates back to the filing of the application for withdrawal of appeal. It can thus be seen that the case is clearly distinguishable on facts. What is relied upon by the learned counsel for the petitioner is that Order XXIII Rule 1(1) of CPC gives absolute right to the plaintiff to withdraw his suit or abandon any part of his claim. Taking note of the said provision, the Supreme Court held that if such an application is made, the Court has to grant it.
46. Coming to the present case, in so far as Appeal No.41/2008 is concerned which was filed by the society against the judgment and decree dated 16/17 October 2007, the society was not seeking withdrawal of the appeal but was in fact seeking order by which the appeal was required to be allowed, thereby setting aside the decree of eviction passed against the society. I would revert back to this aspect while deciding the Writ Petition St. Mamta Kale page 26 of 32 ::: Uploaded on - 20/05/2021 ::: Downloaded on - 20/05/2021 21:55:22 ::: 1-wpst-1929-21 & group.odt No.1930/2021 and Writ Petition St. No.4009/2021 in which the appeal was sought to be withdrawn.
47. Even the decision of this Court in Ramchandra Nahar would not apply on facts. In that case, it was held that only the family members residing with the tenant at the time of his death would get the tenancy rights and no other heir of tenant can be brought in to bestow upon him the tenancy rights.
48. Lastly, in the case of Pannala Renuka and Anr. Vs. Kavali (Rajumouni) Venkataiah & Ors.8 , it was found in paragraph 5 that although purchaser of the property during the pendency of the suit, as of right, cannot claim to be a necessary or proper party to the suit, having regard to the circumstances of the each case, the Court may permit the purchaser pendente lite to come on record. WP (St) No.1930/2021 and WP (St) No.4009/2021
49. Coming to these petitions, the only distinguishing feature in these petitions is that the respondent Arham Developers had sought impleadment by virtue of application (Exh.17) as co-
82006(3) A.P.L.J. 348 (HC)
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appellant No.2. The petitioner Tajdar Amrohi who is the appellant in Appeal No.193/2008 has sought withdrawal of the appeal in which such impleadment as a co-appellant has been allowed.
50. Mr. Dhakephalkar, the learned Senior counsel for the petitioner submitted that such impleadment as a co-appellant could not have been allowed and it would lead to a situation where Tajdar Amrohi appellant No.1 is desirous of withdrawing the appeal while appellant No.2 Arham Developers is interested in prosecuting the appeal. He also submitted that such impleadment would not be permissible under Order XXII Rule 10 of CPC.
51. I have gone through para 10 of the impugned order dealing with the said aspect. The Appellate Bench has found that -
(i) this ground was not raised in the reply filed by the petitioner herein to the application for impleadment. (ii) the Cozihom society (defendant No.1) has nothing to do with the impleadment in the appeal filed by the petitioner Tajdar Amrohi (original plaintiff). (iii) the effect of such addition and whether there will be conflict of interest between the existing appellant and the Arham Developers can be seen at the later stage and not at the sage of considering Mamta Kale page 28 of 32 ::: Uploaded on - 20/05/2021 ::: Downloaded on - 20/05/2021 21:55:22 ::: 1-wpst-1929-21 & group.odt impleadment. (iv) the aggrieved appellant may take appropriate recourse for transposition amongst them if deemed fit.
For aforesaid reasons, the Appellate Bench has refused to accept the contention "at this stage".
52. I have given my anxious consideration to the circumstances and the submissions made. It is true that normally a person cannot be added or foisted as a plaintiff or as an appellant without the consent of the plaintiff or the appellant as the case may be. However, it prima facie, appears that Order I Rule 10 envisages even the 'continuation of any suit' by such person upon whom such interest has come or devolved. Thus, prima facie, Order XXII Rule 10 would show that the person can even be added as a plaintiff, in as much as the said provision envisages continuation of the suit by or against the person upon whom such interest is devolved. As a necessary corollary it will also apply to continuation of an appeal, in as much as an appeal is a continuation of the suit. It transpires that an application for deletion of the existing appellant is pending before the Appellate Bench.
53. Having regard to the fact that the Appellate Bench has also observed that the contention cannot be accepted at this stage, it Mamta Kale page 29 of 32 ::: Uploaded on - 20/05/2021 ::: Downloaded on - 20/05/2021 21:55:22 ::: 1-wpst-1929-21 & group.odt would be open to the parties to urge the same and the Appellate Bench can consider the same while considering the application for deletion and/or the application / pursis for withdrawal of the appeal.
54. I would now propose to briefly deal with the cases on which reliance is placed by Mr. Dhakephalkar, the learned Senior counsel for the petitioner. The case of Shiv Prasad Vs. Durga Prasad and Anr. 9 and Prakash Kaur (Smt) Vs. Sandhooran (Smt) and Anr. 10 involved withdrawal of an application under Order XXI Rule 89(2) of CPC.
It can thus be seen that both these cases are distinguishable on facts. In para 12 of Shivprasad , the Supreme Court has observed that "even on the interpretation of Rule 89(2) which we have put we are not prepared to accept the contention put forward on behalf of the appellant that an application under Rule 90 does not stand withdrawn until an order to that effect is recorded by the Court".
55. It can thus be seen that the said observation is in context of Rule 89(2) of Order XXI. In the present case, admittedly, 9(1975) 1 SCC 405 10(1993) 3 SCC 312 Mamta Kale page 30 of 32 ::: Uploaded on - 20/05/2021 ::: Downloaded on - 20/05/2021 21:55:22 ::: 1-wpst-1929-21 & group.odt there is no formal order passed for withdrawal of the Appeal No.193/2008.
56. To conclude, prima facie, there is a registered deed of conveyance executed in favour of Arham Developers. Although the said deed is sought to be cancelled by virtue of a notice, the suit filed by the vendors as well as suit filed by the Arham Developers is pending before this Court. In the suit filed by the later, there is a prima facie finding while granting interim relief that the property has passed. That apart, the Hon'ble Supreme Court in the SLP filed by the society arising out of the suit between the landlord and the tenant i.e. the society and Tajdar Amrohi has granted impleadment of 'Arham Developers' permitting it to participate in the proceedings. At the stage of impleadment, the Court is only required to look at the prima facie case.
57. In that view of the matter, no case for interference is made out. The petitions are accordingly dismissed with no order as to costs.
58. At this stage, the learned counsel for the Petitioners seeks continuation of the interim relief which was operating in these Mamta Kale page 31 of 32 ::: Uploaded on - 20/05/2021 ::: Downloaded on - 20/05/2021 21:55:22 ::: 1-wpst-1929-21 & group.odt petitions. He seeks the continuation of the interim relief for a period of eight weeks.
59. Mr. Khandeparkar, the learned counsel for the respondent/ Arham Developers has opposed the said prayer.
60. Considering the over all circumstances and the fact that the interim relief was already operating from 3 February 2021, the same shall continue for a period of eight weeks.
C.V. BHADANG, J.
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