Calcutta High Court (Appellete Side)
Noor Jahan Begam & Ors vs Md. Ashique Hossain & Ors. ....Opp. ... on 24 December, 2013
Author: Sudip Ahluwalia
Bench: Sudip Ahluwalia
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present : Sudip Ahluwalia, J.
C.O. No. 2451 of 2012 NOOR JAHAN BEGAM & Ors. ....Petitioners Vs. Md. ASHIQUE HOSSAIN & Ors. ....Opp. Parties For the Petitioners : Mr. Gopal Chandra Ghosh Ms. Jayeta Kaunda For the Opposite Parties No. 1 to 3 : Mr. S.R. Islam Heard On : 11.12.2013 Judgment On : 24.12.2013 Sudip Ahluwalia, J. :
1. This Revisional Application is directed against the Order passed by the 2nd Court of the Learned Civil Judge (Senior Division) at Alipore (District South 24-Parganas) in Title Suit No. 54 of 1995 of the Said Court.
2. Vide the impugned Order the Learned Trial Court had rejected an application filed on behalf of the original applicants Noor Jahan Begam and Jahanara Begum (since deceased and substituted by her legal representatives, now petitioner Nos. 2(a), (b) & (c) under U/Order- I Rule- 10(2) r/w S. 151of the C.P.Code filed on 03.07.2002. In that application those petitioners had prayed for being added as parties in the suit pending between the present O.P. Nos. 1, 2 and 3 as plaintiffs, and the O.P No. 4 as the defendant.
2. It may be mentioned that the suit was filed by the O.P Nos. 1, 2 and 3 against the O.P No. 4 for Specific Performance in relation to the suit property being premises No. 52/1A, Bright Street, Kolkata-17. It was alleged that the said defendant/O.P No. 4 had entered into an agreement with them on 29.05.1994 for sale of the aforesaid suit property for a consideration price of Rs. 1, 05,000/- on receipt of the sum of Rs. 10,000/- from them as earnest and part payment, thereby leaving balance consideration money amounting to Rs. 95,000/-. It was allegedly agreed between those parties that the transaction would be completed preferably within one year from the date of execution of the agreement. But the defendant/O.P No. 4 failed to perform his part of the agreement on account of which the plaintiffs approached the learned Court below for a Decree of Specific Performance against him.
3. During pendency of the suit the petitioners Noor Jahan Begam and Jahanara Begum interceded and prayed for being added as parties by way of their petition U/O. I R. 10(2) r/w S. 151 C.P. Code, which was rejected by the Ld. Court below vide the impugned order. The contention of the petitioners was that they were the actual owners of the disputed premises, and that the defendant No. 1 had no Right, Title or Interest in the same, and was therefore incapable of transferring it to the plaintiffs.
4. In rejecting the application the Ld. Trial Court observed that the petitioners were not entitled to be added as parties in the suit for Specific Performance of Contract for Sale, and that by allowing them to be impleaded, the nature and character of the dispute would be converted into a Title Suit, which was not permissible. The relevant extracts from the impugned order passed by the Ld. Trial Judge happen to be -
".......The primary meaning of a party is a litigant who has a part to play in the proceeding. A necessary party is one without whom no order can be effectively made. A proper party is one whose presence is necessary for a complete and final decision of question involved in the proceeding.
The power of the Court under Sub-Rule(2) of Rule-10, Order-1 C.P.C. may be exercised at any stage of the proceeding subject to the law of limitation and the discretion given is wide the object being to avoid multiplicity of the suit and conflict of decision. But the discretion has to be exercised by the Court judiciously.
The petitioners are not parties to the contract for sale and they are strangers to the contract. In a suit for specific performance of contract for sale the strangers to the contract making a claim adverse to the title of the vendor-defendant that they are owners of the contracted property are neither necessary nor proper parties. If the petitioners are impleaded in this suit for a specific performance of contract for sale, the very complex of the litigation would be converted into a title suit, where the impleadment of a person would change the complex of the litigation his/her presence is neither necessary for the decision to the question involved in the proceeding nor to enable the court effectively and completely to adjudicate upon and settle the question involved in the case. Such a person is neither a necessary nor a proper party. The suit for specific performance of contract cannot be converted into a title suit and the remedy of the petitioners lies elsewhere.
Considering the facts and circumstances of the case and the materials on record and the discussions made above, I am of the firm opinion that the petitioners are neither necessary nor proper party in the instant suit.
Hence, Ordered That the application under Order-1 Rule 10(2) read with Section 151 of C.P.C. filed by Noor Jahan Begum and Jahanara Begum on 3.7.2002, is rejected on contest but without cost.........."
5. The question before this Court now is whether the impugned order is legal and proper or not, assuming that the petitioners are actually the real owners of the disputed premises or that the original defendant/O.P No. 4 who allegedly entered into an agreement for sale with the plaintiffs/O.P Nos. 1, 2 and 3 did not have any right or capability to transfer the same.
6. In this connection the settled law as laid down by a Three Judge Bench of the Apex Court in the case of "Kasturi Vs. Iyyamperumal" [reported in (2005) 6 Supreme Court Cases 733] is that in relation to an application for addition of parties under Order-1 Rule 10(2) in a suit for specific performance of contract, only the parties to the contract or parties claiming under them, or a person who had purchased the contracted property from the vendor with or without notice of the contract are the necessary parties. The Apex Court has further observed that a person who claims independent Title and possession adversely to Title of the vendor is not a necessary party, since an effective decree can be passed in his absence, and no relief can be claimed against such party. (Emphasis added).
7. On the above reasoning the Apex Court had set aside the orders of the Trial Court as well as the High Court which had allowed the Respondent Nos. 1 and 4 to 11 in the Appeal, added as parties on the basis of their claim that they were the actual title holders of the disputed property in respect of which a suit for specific performance had been filed by the Appellant against the Respondent Nos. 2 and 3, who were the original defendants and who had allegedly entered into a contract for transfer of the suit property. Consequently the application for addition of parties by the respondent No. 1 and 4 to 11 was rejected by the Apex Court after setting aside the order and Judgment passed by the Trial Court as well as the High Court.
8. The petitioners in the present case also stand on exactly the same footing as the Respondent Nos. 1 and 4 to 11 in the appeal decided by the Apex Court. To that extent the rejection of their application for being added as parties in the pending suit for Specific Performance against the O.P No. 4 vide the impugned Order would appear to be perfectly logical and tenable.
9. Ld. Advocate for the petitioners has referred to a decision of the Apex Court in "Gorie Gouri Naidu (Minor) & another, Vs. Thandrothu Bodemma & Others" (AIR 1997 SC 808). It was held therein that an inter-party judgment given by a competent Court is binding between parties to a subsequent suit for partition. In Para-4 of this decision the Apex Court has observed, "By the impugned judgments, the Division Bench of the Andhra Pradesh High court has held that in view of such declaration of the said deed of gifts as invalid, no claim of title on the basis of the said deed of gift or family settlement can be made. In our view, such decision of the Division Bench is justified since the said earlier decision in declaring the deeds of gift as invalid, is binding between the parties. There is no occasion to consider the principle of estoppel since considered by the learned single Judge in the facts and circumstances of the case for holding the said transfers as valid, in view of the earlier adjudication on the validity of the said deeds in the previous suit between the parties. The law is well settled that even if erroneous, an interparty judgment binds the party if the Court of competent jurisdiction has decided the lis."
10. The above decision however has practically no application whatsoever to the facts and circumstances of the present case. It needs to be noted that the Suit now pending is for Specific Performance (not Partition) between some outsider purchasers, and a defendant who allegedly transferred a specific property in favour of the plaintiffs. The petitioners were neither parties to such agreement of sale nor their presence is necessary, since any decision in the Suit would bind only the parties to the agreement, and not the petitioners who are complete strangers qua the plaintiffs.
11. Nevertheless, Ld. Advocate for the petitioners contended before this Court that notwithstanding the position of law as expounded in the aforesaid civil appeal ("Kasturi Vs. Iyyamperumal"), the petitioners in the present case ought to have been made parties in view of the fact that their Right, Title and Interest in the suit premises had already been recognized by a Division Bench of this Court in an earlier proceeding being FMAT 1553 of 1998. This Court has perused the copy of the relevant Order dated 16.06.1998 passed by the Division Bench which is on Pages 48 to 50 in the form of Annexure P-3 to the Revisional Application. On perusal of the same, it is seen that the previous appeal was preferred against another earlier order of the Trial Court passed on 26.02.1998, whereby the application of the plaintiffs/O.P Nos. 1, 2 and 3 for a Temporary Injunction against the defendant/O.P No. 4 had been rejected.
12. But on a careful reading of the aforesaid Order of the Division Bench dated 16.06.1998, it is seen that the apparent Right, Title and Interest of the petitioner has been recognized in relation to premises No. 52/1B, Bright Street, which is clearly separate and distinct from the premises No. 52/1A, Bright Street, which is the actual subject matter of the present Suit for Specific Performance. This fact is further verified on scrutiny of the description of the Schedule 'A' of the Suit Property as given in the Plaint filed before the Ld. Court below. A copy of the relevant amended plaint filed as far back as in the month of November 1998 was placed before this Court on behalf of the contesting O.P Nos. 1, 2 and 3. The same clearly goes to reveal that the suit for Specific Performance relates only to the premises No. 52/1A, Bright Street, under P.S. Karaya, and it is further seen that the premises No. 52/1B, Bright Street, in respect of which apparent the right of the petitioners was noted by the Division Bench, is shown to be located on the Eastern side of the actual suit premises. As such even this factual contention raised on behalf of the petitioner's side of being owners of the disputed premises is found to be misleading.
13. Besides, it needs to be noted that even if there was a stray observation to the Division Bench in the earlier proceeding regarding the petitioners' apparent Right, Title and Interest in the different premises No. 54/1B, still it is undisputed that they were not parties themselves in the said proceeding (FMAT 1553 of 1998) which was again only between the plaintiffs and the defendant. So any question of application of the principle of Res-judicata cannot arise, when the present petitioners were not even the actual parties in the previous proceeding.
14. For the above reasons this Court finds no merit in the present Revisional Application, which is accordingly dismissed; Parties to bear their own costs.
(Sudip Ahluwalia, J.)