Bombay High Court
Sau. Radha Gopal Bhoot And Another vs Yeshwant Lahnuji Sakore And Others on 30 September, 2016
Author: Prasanna B. Varale
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 6795 OF 2015
(1) Sau. Radha Gopal Bhoot
Aged about 41 years, Occ. Household work,
(2) Gopal Purushottamji Bhoot,
Age 51 years, Occ : Agriculturist,
Both resident of Main Road,
Dhamangoan Rly, Dist. Amravati. ... Petitioners
// VERSUS //
(1) Yeshwant Lahnuji Sakore
Age 50 years, Occ : Agriculturist,
(2) Sau. Vimalbai Yeshwant Sakore
Age 45 years, Occ : Agriculturist,
Both R/o College Road, in front of Bhandari
Bagicha, Dhamangao Rly,
Tq. Dhamangao Rly, Dist. Amravati.
(3) Sau. Vatsalabai Govindrao Dhanjode,
Age 65 yrs, Occ : Agriculturist,
R/o Talegaon (Dashasar),
Tq. Dhamangao Rly., Dist. Amravati.
(4) Mangesh Bhauraoji Sawalakhe
Aged 35 yrs, Occ :- Agriculturist,
R/o Mangrul Dastagir,
Tq. Dhamangao Rly., Dist. Amravati.
(5) Vilas Subhasrao Butale,
Aged 40 years, Occ :- Agriculturist,
R/o Lunawat Nagar, Matoshri Hights,
Dhamangao Rly., Tq. Dhamangao Rly.,
Dist. Amravati.
(6) Satish Vyawarimalji Budhlani,
Aged 60 years, Occ. Agriculturist,
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R/o Budhawar Bazar, Sindhi Colony,
Dhamangao Rly., Tq. Dhamangao Rly.,
Dist. Amravati.
(7) Rameshchandra Jasroopchandji Chandak
Aged 60 years, Occ : Agriculturist and
Legal Practitioner, R/o Main Road,
Gandhi Chowk, Dhamangao Rly.,
Tq. Dhamangao Rly., Dist. Amravati. ... Respondents
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Shri S. S. Alaspurkar, Advocate for the petitioners
Shri A. V. Bhide, Advocate for the respondent nos. 4 to 7
None for the respondent nos. 1 to 3
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CORAM : PRASANNA B. VARALE, J.
DATE : 30-9-2016.
ORAL ORDER
Rule. Rule made returnable forthwith.
2. Heard Shri Alaspurkar, learned counsel for the petitioners and Shri Bhide, learned counsel for the respondent nos. 4 to 7.
3. None appears for the respondent nos. 1 to 3.
4. By the present petition, the petitioners challenge the orders passed by the learned Joint Civil Judge Junior Division, Dhamangaon Railway, District Amravati dated 11-8-2015 thereby rejecting the applications filed at the instance of the petitioners.
5. Brief facts giving rise to the present petition can be ::: Uploaded on - 03/10/2016 ::: Downloaded on - 05/10/2016 00:32:24 ::: 3 jg.wp6795.15.odt summarized as follows.
The petitioners instituted Special Civil Suit No. 149/2009 against the respondent nos. 1 to 3 who are defendants before the learned Civil Judge Senior Division, Amravati. It was submitted in the claim that plaintiff no. 1 is owner of Field Survey No. 76/1 to the extent of area of 5H. 52R, the plaintiff no. 2 is owner of Field Survey No. 77/1 to the extent of area of 3H. 46R whereas defendant nos. 1 and 2 are the owners of Field Survey No. 76/2 to the extent of area of 2H. 18R. Defendant no. 3 is mother of defendant no. 2. It was submitted that defendant nos. 1 and 2 by hatching a conspiracy created and brought into existence approach to their field Survey No. 76/2 by removing the poles at the points 'D' and by filing the manure pit at point 'M' (shown in the plaint map) and created approach which was never in existence and it was the intention and motive to create approach in their field through the field owned by the plaintiffs. Thus on the allegations referred to above, the plaintiffs/petitioners made prayers, namely :
(i) It be declared that defendants have no right to damage or remove the wire fencing and / or any pole erected at the point D or any other adjoining point on the boundary of the suit fields bearing S. No. 77/1 and 76/1 owned by the ::: Uploaded on - 03/10/2016 ::: Downloaded on - 05/10/2016 00:32:24 :::
4 jg.wp6795.15.odt plaintiffs as shown in the plaint map, by letters A.D.E.
(ii) By grant of permanent injunction the defendants be restrained from damaging or removing the wire fencing and/or any pole erected at the point D or any other adjoining point on the boundary of the suit fields bearing S.No. 77/1 and 76/1 owned by the plaintiffs as shown in the plaint map, by letters A.D.E.
(iii) It be declared that the defendants have no right to approach their F.S. no. 76/2 from the point M or any other portions of the suit fields bearing S. No. 77/1 and 76/1 owned by the plaintiffs.
(iv) By grant of permanent injunction the defendants be restrained from approaching the F.S. No. 76/2 from point M or any other portion of the suit fields bearing No. 76/1 and 77/1.
(a) A decree for recovery of damages of Rs. 1,00,000/- be passed in favour of the plaintiffs and against the defendants making them liable jointly and severally along with interest thereon.
(v) .....
(vi) .....
Defendants resisted the claim by filing written statement. It is
submitted in the petition that the defendant nos. 1 and 2 are also made counter claim along with their written statement. The petitioners approached the learned Court below by filing applications ::: Uploaded on - 03/10/2016 ::: Downloaded on - 05/10/2016 00:32:24 ::: 5 jg.wp6795.15.odt for (1) grant of permission to amend the plaint under Order 6 Rule 17 of the Civil Procedure Code, (2) seeking leave to the plaintiff to continue the suit against the assignee in the interest of justice under Order 22 Rule 10 of the Civil Procedure Code and (3) seeking permission to join the respondent nos. 4 to 7 as defendant nos. 4 to 7 by amending the plaint under Order 1 Rule 10 of the Civil Procedure Code.
The applications were opposed by the defendants as well as purchasers and the persons as per the claim of plaintiffs who have been assigned the interest in the property. Learned Joint Civil Judge Junior Division found no favour with the plaintiffs and by orders dated 11-8-2015 rejected the applications.
6. Submissions of Shri Alaspurkar, learned counsel for the petitioners in challenge to the orders rejecting these applications was two fold. Firstly, learned counsel for the petitioners submitted that though the defendant no. 1 to 3 have sold their property and the persons who have purchased the property are necessary parties to the suit as the interest assigned to the original owners of the property i.e. defendant nos. 1 to 3. It was the second submission of Shri Alaspurkar, learned counsel that the Court below erred in ::: Uploaded on - 03/10/2016 ::: Downloaded on - 05/10/2016 00:32:24 ::: 6 jg.wp6795.15.odt rejecting applications only on the basis of the statements made in the reply to the applications. It was the further submission of Shri Alaspurkar, learned counsel that it was for the Court below to conduct the enquiry which may not be detailed one, but some enquiry in the form of summary nature on the backdrop of the fact that the petitioners-plaintiffs were submitting case that the original defendants were transposing from their own field to approach their field and the petitioners sought the prayer of injunction against the defendants who are restraining the defendants from approaching Field Survey No. 76/2. Thus it was the submission of Shri Alaspurkar, learned counsel that it was necessary for the Court below to conduct a summary enquiry to appreciate the submissions of the petitioners in the applications. Shri Alaspurkar, learned counsel in support of his submissions placed reliance on the judgment of the Apex Court reported in 2016(3) Scale in the matter of Chandra Bai (dead) thr.
L.Rs. Vs. Khandalwal Vipra Vidyalaya Samiti and ors.
7. Per contra, Shri Bhide, learned counsel appearing for the respondent nos. 4 to 7 supported the orders passed by the learned Court below and impugned in the petition. It was the submission of Shri Bhide, learned counsel that the respondent nos. 4 to 7 are not the ::: Uploaded on - 03/10/2016 ::: Downloaded on - 05/10/2016 00:32:24 ::: 7 jg.wp6795.15.odt purchasers of any property of the plaintiffs. Shri Bhide, learned counsel submitted that the respondent nos. 4 to 7 purchased the property from the defendant nos. 1 to 3. Shri Bhide, learned counsel then submitted that a categorical statement was made on behalf of these respondents in reply to the applications that the respondents would not use the way about which the grievance was made by the plaintiffs. It was further submitted that as a statement was made that the respondent nos. 4 to 7 are not going to use the way to approach the field, there was no question of causing any disturbance to the plaintiffs as alleged by the plaintiffs. It was the further submission of Shri Bhide, learned counsel that on the backdrop of the statement made by the respondent nos. 4 to 7, the controversy in the suit would be a very limited issue i.e. whether the plaintiffs would be entitled for decree for recovery of damages caused to him. It was further submission of Shri Bhide, learned counsel that the submissions advanced on behalf of the petitioners that the Court below was required to conduct summary enquiry is unacceptable for the reason that neither the provision speaks about such an enquiry nor there is any judicial pronouncement. Shri Bhide, learned counsel submitted that what is required is the satisfaction of the Court to exercise the ::: Uploaded on - 03/10/2016 ::: Downloaded on - 05/10/2016 00:32:24 ::: 8 jg.wp6795.15.odt discretion.
8. On the backdrop of the rival contentions of the parties, I have gone through the material placed on record. Though it was the submission of learned counsel appearing for the petitioners that the Court below ought to have conducted some sort of summary enquiry to assess the claim of the petitioners in view of the submission that the respondent nos. 4 to 7 are the subsequent purchasers of the property and on the backdrop of this fact, the plaintiffs submitted application for amendment of the plaint by adding respondent nos. 4 to 7 as necessary parties to the suit. Shri Alaspurkar, learned counsel for the petitioners has placed reliance on the provision of Order 22 Rule 10.
The same reads thus :
10. Procedure in case of assignment before final order in suit. - (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a 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.
(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule(1).
10-A. ......
::: Uploaded on - 03/10/2016 ::: Downloaded on - 05/10/2016 00:32:24 :::9 jg.wp6795.15.odt Shri Alaspurkar, learned counsel for the petitioners in support of his submission that though the provision do not speak the words that the Court has required to conduct an enquiry by a judicial pronouncement, the Court below is required to conduct a summary enquiry.
9. Shri Alaspurkar, learned counsel for the petitioners placed reliance on the case of Chandra Bai (dead) thr. L.Rs. Vs. Khandalwal Vipra Vidyalaya Samiti and ors. (cited supra). It would be necessary to refer to the said judgment of the Apex Court. The Apex Court observed that :
3. We have duly taken note of these decisions and it appears to us that in Raj Kumar v. Sardari Lal (supra), this Court has held that in case of an assignment, creation or devolution of any interest during the pendency of any suit, Order 22 Rule 10 CPC confers a discretion on the Court hearing the suit to grant leave to the person in or upon whom such interest has come to vest or devolve to be brought on record. Bringing of a lis pendens transferee on record is not as of right but is the discretion of the Court.
We have also noticed that in Amit Kumar Shaw & Anr. v. Farida Khatoon & Anr. (supra), this Court has held that it is not necessary to make a detailed enquiry at the stage of granting leave under Order 22 Rule 10 of CPC. The Court at that point of time has to be prima facie satisfied for ::: Uploaded on - 03/10/2016 ::: Downloaded on - 05/10/2016 00:32:24 ::: 10 jg.wp6795.15.odt 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. ...
Thus, what is expected is the Court below exercising its discretion to its satisfaction and to reach that satisfaction, one of the mode is a summary enquiry. This by itself cannot be presumed to be a requirement of summary enquiry. The Apex Court Chandra Bai's case (cited supra) referred to the judgment in the case of Amit Kumar Shaw & Anr. v. Farida Khatoon & Anr. It would be useful for our purpose to refer to the judgment of Amit Kumar Shaw & Anr. v.
Farida Khatoon & Anr. reported in (2005) 11 SCC 403. The Apex Court in the case of Amit Kumar Shaw observed that :
9. The object of Order 1 Rule 10 is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non-suited. The power to strike out or add parties can be exercised by the court at any stage of the proceedings. Under this rule, a person may be added as a party to a suit in the following two cases :
(1) when he ought to have been joined as plaintiff or defendant, and is not joined so, or (2) when, without his presence, the questions in the suit cannot be completely decided.
The Apex Court further observed that :
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10. The power of a court to add a party to a proceedings cannot depend solely on the question whether he has interest in the suit property. ...
Then Apex Court while dealing with the other aspect of lis pendens or the situation permitting the parties to submit application pendente lite further observed :
16. The doctrine of lis pendens applies only where the lis is pending before a Court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10 an alienee pendente lite may be joined as party. As already noticed, the court has discretion in the matter which must judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. ....::: Uploaded on - 03/10/2016 ::: Downloaded on - 05/10/2016 00:32:24 :::
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10. In present matter, though an attempt was made by Shri Alaspurkar, learned counsel for the petitioners that the petitioner sought for an addition of parties of respondent nos. 4 to 7 on the ground that they are subsequent purchasers and they have stepped into shoes of original defendant nos. 1 to 3 and, as such, the trial Court was required to conduct a summary enquiry. I am unable to accept the submission of Shri Alaspurkar, learned counsel for the petitioners. As stated above, the Apex Court in clear and unambiguous terms observed that for the consideration of such application by the Court below, what is required to be seen is whether the discretion is exercised by the Court below judiciously. It was also not the requirement that in each and every case, the Court below should conduct the enquiry even if it is accepted that enquiry cannot be detail enquiry but summary nature. The judgment of the Apex Court nowhere mandates that in each and every case, the lower Court is bound to conduct summary enquiry or some enquiry. The Apex Court in the case of Amit Kumar Shaw (cited supra) in clear words held that the Court has discretion and it must judicially be exercised, meaning thereby, by considering the merits of the application.
11. In the present matter, it was the case of the ::: Uploaded on - 03/10/2016 ::: Downloaded on - 05/10/2016 00:32:24 ::: 13 jg.wp6795.15.odt plaintiffs/petitioners that the defendant nos. 1 to 3 by erecting or fencing wire on poles causing disturbance to their property and the defendant nos. 1 to 3 were using their field for approaching their field.
Now, the learned Court below while considering the applications and reply filed on behalf of the respondent nos. 4 to 7 in clear terms observed that the respondent nos. 4 to 7 made a statement that it is not in dispute that the respondent nos. 4 to 7 have not purchased any property of the plaintiffs but they have purchased the property of defendant nos. 1 to 3. A statement was made before the Court below on behalf of the respondent nos. 4 to 7 that they would never used the way about which the plaintiffs had a grievance and made allegations that defendant nos. 1 to 3 were using that way for entering into their field. The learned Court below by accepting that statement found no favour with the applications filed by the plaintiffs and rejected these applications. Thus, in my opinion, the learned Court below exercised discretion on the material presented before it and was satisfied on the material. The orders passed by the learned Joint Civil Judge Junior Division show that the learned Judge was not inclined to undertake the exercise of conducing any sort of enquiry. I see no reason to show any indulgence in the order passed by the learned Joint Civil Judge ::: Uploaded on - 03/10/2016 ::: Downloaded on - 05/10/2016 00:32:24 ::: 14 jg.wp6795.15.odt Junior Division.
12. Though Shri Alaspurkar, learned counsel for the petitioners made an attempt to submit that on the statement made by the respondent nos. 4 to 7, the only course left with the Court below is to pass the decree in favour of the plaintiffs, counter submission was made on behalf of the respondent nos. 4 to 7 that the plaintiffs would be entitled only to ask for relief to claim damages against defendant nos. 1 to 3. It is not necessary for this Court to go into all these aspects. The Court below may, on hearing the parties and on assessment of the material and on appreciation of the record and evidence, pass the ultimate final order. It is not for this Court to look into that aspect of the matter. Considering all these aspects of the matter, the petition being meritless, deserves to be rejected and the same is, accordingly, rejected.
Rule is discharged.
JUDGE wasnik ::: Uploaded on - 03/10/2016 ::: Downloaded on - 05/10/2016 00:32:24 ::: 15 jg.wp6795.15.odt CERTIFICATE "I certify that this Judgment uploaded is a true and correct copy of original singed Judgment."
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