Jammu & Kashmir High Court - Srinagar Bench
Muzaffar Hussain Baba And Another vs < on 5 February, 2021
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(Through Video Conference)
Reserved on 02.12.2020
Pronounced on 05.02.2021
CM (M) No. 53/2019 (O&M)
Muzaffar Hussain Baba and another ...Petitioner/Applicant(s)
Through :- Mr. Mohsin S. Qadiri, Sr. Advocate with
Ms. Ahra Syed, Advocate
v/s
<
Ghulam Mohammad Dar and others
't
.....Respondent (s)
Through :- Mr. Lone Altaf, Advocate
Mr. Sheikh Mushtaq, Advocate
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
(through Video Conference from residence in Jammu)
JUDGMENT
1. Through the medium of the present petition, the petitioners have challenged the order dated 19.10.2019 passed by the learned Sub Judge, Ganderbal (hereinafter to be referred as the trial court) by virtue of which, the learned trial court has disposed of the following four applications:
(i) Application filed under Order I Rule 10 of the Code of Civil Procedure (for short the Code) by the petitioners seeking transposition of the respondent Nos. 2 to 4as party plaintiffs in a suit.
(ii) Application filed by the petitioners seeking setting aside of the objections filed by the respondent Nos. 5 and 6 against the application filed by the petitioners for filing additional written 2 CM(M) No. 53/2019 statement or in the alternative transposing them i.e. respondent Nos. 5 and 6 herein as party plaintiffs in the suit.
(iii) Application filed by the petitioners in terms of Order VIII Rule 9 of the Code seeking leave to file additional written statement.
(iv) Compromise petition between the respondent No. 1 (plaintiff) and respondent Nos. 2 to 6 herein with further prayer to decree the suit in terms of Order VIII Rules 4 and 5 of the Code filed by the respondents.
2. The order impugned has been challenged on the ground that the same is bad in law as initially the respondent Nos. 2 to 6 had denied the claim of the petitioner No. 1 through their respective written statements, but later on respondent Nos. 2 to 6 retracted their earlier stand and entered into a compromise with respondent No. 1 and, as such, respondent Nos. 2 to 6 joined hands with respondent No. 1 to get a collusive decree and such practice is always discouraged by the civil jurisprudence. The petitioners have further assailed the order that they had every right to file additional written statement under Order VIII Rule 9 of the Code, particularly when the respondent Nos. 2 to 6 had retracted from their earlier pleadings and had joined hands with respondent No. 1 and the real controversy with the parties was with regard to the validity of the impugned sale deeds and same could have determined only after the parties were afforded proper opportunity to plead their written version and lead evidence in the trial court. The learned trial court by refusing the petitioners to file additional written statement has resulted into denial of substantial justice to the petitioners as any compromise between some parties cannot be permitted to affect the right of third party or 3 CM(M) No. 53/2019 stranger to the compromise but the learned trial court has totally ignored this vital aspect of the case. The respondents having struck a compromise to obtain a collusive decree against the petitioners and same fact was brought to the notice of the trial court and the petitioners had made it clear that they are having clash of interest with the respondent Nos. 2 to 6 (co-defendants in the suit) and they are required to be construed as plaintiffs by applying principle of transposition.
3. Before appreciating rival contentions of the parties, it is necessary to have a brief resume of the pleadings of the parties before the trial court. The respondent No. 1 had filed a suit for declaration that the sale deeds executed on 18.03.2014 and registered in favour of the petitioners herein by respondent No. 2 and predecessor-in-interest of respondent Nos. 2 to 6 with regard to land measuring 08 kanals (04 kanals each) under khasra No. 352 khewat No.29, Khata No.80 situated at Mouza Sonamarg Tehsil, Kangan, Ganderbal, Kashmir as null and void with a further declaration declaring the respondent No. 1 to be legal and lawful owner in possession of the land mentioned above and also decree for permanent prohibitory injunction restraining the petitioners and the other defendants ( respondents 2 to 6) in the suit from causing any kind of interference into the peaceful possession and the enjoyment of the suit property by the respondent No. 1 on the ground that the respondent No. 2 and his father, who was originally arrayed as defendant No. 1 had entered into agreement to sell with the respondent No. 1 with regard to above mentioned land and had received a sale consideration way back in the year, 2013. But later on the respondent No. 1 came to know that the above mentioned persons have sold the land to the petitioners herein despite the fact that the respondent No. 2 and his father were requested to 4 CM(M) No. 53/2019 execute sale deed in favour of respondent No. 1 after the receipt of full and final sale consideration but they were in league with the petitioners and did not accede to the request of respondent No. 1 and later on he came to know that respondent No. 2 and his father had executed sale deed in favour of the petitioners. It was further alleged that after having executed the agreement to sell on 11.09.2013 in favour of the respondent No. 1, respondent No. 2 and his father were not competent to execute the other sale deed. The respondent No. 1 had placed on record the copies of the sale deeds and also the agreement to sell executed between the respondent Nos. 1, 2 and father of the respondent No. 2. The respondent No. 2 after causing appearance before the trial Court, admitted the execution of the agreement to sell and took a stand that certain conditions were required to be complied with by respondent No.1 and after that only, the sale deed was required to be executed. It was further stated that in case these conditions are fulfilled, the respondent No. 2 was ready to execute the sale deed in favour of the respondent No. 1. Respondent No. 2 had admitted that the respondent No. 1 had paid the 40% of the sale consideration and rest 60% of the sale consideration was yet to be paid by the respondent No. 1. It was also pleaded by respondent No. 2 that he had come to know for first time only that the forged sale deed had been executed on his behalf as well as on behalf of the deceased (father of respondent No. 2) in favour of the petitioners. The respondent No. 2 specifically denied that he at any point of time signed the said sale deed and also pleaded that as soon as he came to know about the forged sale deed, he immediately lodged FIR with the concerned Police Station, Kangan for commission of offences under sections 467, 468, 471 and 420 RPC on 24.12.2014 and the challan has also been filed before 5 CM(M) No. 53/2019 the competent court. Besides that the Registrar Vigilance of the High Court has been also looking into the matter as some lawyers were also involved in the matter including some revenue officials. The respondent No. 2 prayed for the dismissal of the suit filed by respondent No. 1. From the record, it transpires that after the demise of original defendant No. 1, his legal heirs were brought on record. Though there was inter se dispute of the legal heirs of late Abdul Rehman Bhat that led to the filing of appeal in the instant case but the reference to that would be irrelevant for the disposal of the present controversy. After the legal heirs of original defendant no: 1 were brought on record, they too filed the written statement.
4. The petitioners also filed their written statement, in which they pleaded that the respondent No. 1 seemed to have been in league with respondent No. 2 in order to get a collusive decree and it was further pleaded that the petitioners along with Nadeem Ahmed Mayer and his father, Shafiq Ahmad Mayer were called by the Munsiff, Kangan and were made to sign some blank papers and they were directed to surrender the sale deed in pursuance to some enquiry. The respondent Nos. 3 and 4 also filed their written statements, in which they have pleaded that they along with respondent No. 2 are the legal heirs of Abdul Rehman Bhat, who passed away some time back and he in his life time had entered into an understanding with respondent No. 1 with regard to the land measuring 4 kanals falling under khasra No. 352 situated at Mouza Sonamarg Tehsil, Kangan, Ganderbal, Kashmir. It was also pleaded that the deceased defendant No. 1 never appeared before the Sub Registrar, Kangan for registration of sale deed with regard to above mentioned land. It was also pleaded that the 6 CM(M) No. 53/2019 agreement to sell was executed by the deceased defendant No. 1 and same was subject to certain terms and conditions and the respondent No. 1 had made only part payment and they were ready to execute the formal sale deed provided the respondent No. 1 adhered to the other conditions of the agreement i.e. payment of balance sale consideration.
5. During the pendency of the said suit, respondent No. 1(plaintiff in the suit) and respondent Nos. 2 to 6 entered into a compromise and the respondent Nos. 2 to 6 acknowledged and rather admitted that the sale deeds impugned were false and frivolous and also that the compromise petition between the respondents be allowed, accepted and whole of the suit filed by respondent No. 1 be decreed as prayed for in accordance with Order VIII Rules 4 and 5 of the Code as there has been evasive denial on the part of the petitioners to the suit filed by the respondent No. 1. The learned trial court after hearing the parties, vide order dated 18.10.2017 directed the learned counsels for the parties to address the issue as to whether the compromise can be made applicable and binding on all the parties in view of the objections taken by the learned counsel appearing for the petitioners that once the petitioners are not party to the said compromise, the said compromise cannot be binding upon them. Later on the petitioners herein moved an application under Order VIII and Rule 9 of the Code seeking leave to file additional written statement on the ground that in their written statement they had pleaded that the parties other than them were in collusion with each other and were trying to obtain a collusive decree, detriment to the rights of the petitioners and the compromise petition has vindicated the stand of the petitioners and the respondent No. 1 and respondent Nos. 2 to 6 had taken contradictory pleas with regard to the their stands 7 CM(M) No. 53/2019 taken initially and the petitioners want to file reply to the contradictions between their previous stand and compromise petition. The said application was objected by the respondent No. 1 on the ground that the provision of Order VIII Rule 9 of the Code are not enacted to provide relief to the dishonest fraudulent persons and the learned trial court had heard the arguments and had fixed the matter for orders on 16.04.2018 and the present application has been filed just to delay the orders. It was also pleaded that earlier the petitioners had evasively replied the plaint of respondent No. 1 and now they cannot file additional written statement. The said application was also opposed by the respondent No. 5 and 6.The first application was filed by the petitioners seeking transposition of respondent Nos. 2 to 4 i.e. defendant Nos. 1 to 3 as party plaintiffs in the suit on the ground that they have taken a stand against the interest of the petitioners by entering into compromise with respondent No. 1 and transposition of respondent Nos. 2 to 4 would serve the cause of justice as the course adopted by the said respondents is identical to the role of respondent No. 1 in the suit and also that the clash of interest exists between respondent Nos. 2 to 4 on one side and the petitioners on the other, so the role of respondent Nos. 2 to 4 is nothing more than that of the plaintiff and as such they are required to be transposed as plaintiffs to the original suit. The said application was objected on the ground that the application was meritless and is without any provision of law. Yet another application was filed by the petitioners for setting aside the objections filed by respondent Nos. 5 and 6 against the application for filing additional written statement or in the alternative their transposition as plaintiffs in the above titled suit on the ground that they had a clash of interest with the petitioners and as they have joined the respondent No. 1 8 CM(M) No. 53/2019 so they too are required to be arrayed as plaintiffs in the suit. The said application was also opposed by the respondent No. 1 and respondent No. 5&6.
6. The learned trial court vide order dated 19.10.2019 dismissed all the three applications filed by the petitioners and in the compromise petition directed the learned counsels appearing for the respondents to produce the respective parties on the next date of hearing for recording of their statements in support of the compromise.
7. Mr. Mohsin S. Qadiri, learned counsel for the petitioners has vehemently argued and reiterated the grounds those have been taken in the petition and has also submitted the written arguments.
8. On the contrary, learned counsels for the respondents have vehemently argued that the petitioners are guilty of concealment of facts as they have also filed a petition for review of order dated 19.10.2019 in the trial court and they had not disclosed the said fact in the petition before this Court. Learned counsel for the respondents has further argued that the trial court has passed the order within the parameters of law and there is neither any illegality nor any jurisdictional error committed by the trial court that warrants interference by this Court.
9. On being confronted with the filing of the review petition before the trial court, Mr. Qadri submits that he will not press for the said petition before the trial court and his present petition be considered.
10. Heard and perused the record.
11. The learned trial court has rejected the applications filed by the petitioners for arraying respondent Nos. 2 to 6 as plaintiffs in the said suit. 9 CM(M) No. 53/2019 Needless to say that the plaintiff is dominus litus and it is the choice of the plaintiff to array any person as a defendant in the suit provided he has a cause of action against the said person. The sole contention of the petitioners is that the respondent Nos. 2 to 6 are hands in glove with respondent No. 1 and as such, they are required to be transposed as plaintiffs in the suit. The perusal of the written statement filed by the respondent No. 2 and other legal heirs of the deceased defendant No. 1 reveal that they had not admitted the claim of the respondent No. 1 in its totality and had categorically pleaded that the deceased defendant No. 1and respondent No.2 had entered into an agreement to sell with the respondent No. 1 and had even received the part sale consideration and it was because of non receipt of the balance sale consideration, the sale deed was not executed in favour of the respondent No. 1. The respondent No. 2 and respondent Nos. 3 and 4 had categorically prayed for dismissal of the suit filed by petitioner No. 1. Merely denying the execution of the sale deed by respondent No.2 as well as Abdul Rehman Bhat would not mean that they were in league with respondent No. 1. It was during the pendency of the suit that all the respondents settled their dispute and made a joint petition before the learned trial court for passing of a compromise decree. No doubt the defendant can be transposed as plaintiff under Order I Rule 10 of the Code but only when there is no clash of interest between the plaintiff and the defendant sought to be transposed as plaintiff. In the instant case the respondent Nos. 2 to 6 had prayed for the dismissal of the suit and it was only subsequently that they settled the dispute, as such, they could not have been arrayed as plaintiffs in the suit.
10 CM(M) No. 53/2019
12. Also it would be apt to take note of Order XXIII Rule 1A of the Code. Order XXIII Rule 1A of the Code reads as under:
"When transposition of defendants as plaintiffs may be permitted When a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants"
13. The mere perusal of Order XXIII Rule 1A of the Code would reveal that when a suit is withdrawn or abandoned by the plaintiff under Rule 1, the defendant can apply to a court for being transposed as plaintiff under Order I Rule 10 in the court and the court has to consider whether the applicant has a substantial question to be decided as against any of the other defendants or not.
14. So far as the present controversy is concerned, it is not the case of the petitioners that respondent No. 1, who is the original plaintiff, has either withdrawn or abandoned the suit filed by him. Rather it is the case of the petitioners that the respondents have joined hands with each other and have even prayed for passing of compromise decree pursuant to an understanding arrived at between them. So testing the contention raised by the petitioners that the respondents are in collusion with each other against the parameters laid down in the Order XXIII Rule 1A of the Code, this Court finds that both the applications filed by the petitioners for arraying the respondent Nos. 2 to 6 as plaintiffs are not sustainable in the eyes of law as neither the respondent No. 1 has abandoned the suit nor has withdrawn any claim and also it is not the respondents 2 to 6, who have filed the application for their transposition as plaintiffs. Thus, the learned trial court has rightly dismissed both the applications filed by the petitioners. 11 CM(M) No. 53/2019
15. Now coming to the other contention raised by the petitioners that as per the mandate of Order VIII Rule 9 of the Code, the learned trial court has committed illegality in rejecting the application of the petitioners for filing additional written statement. A perusal of the order reveals that the trial court has rejected the application on the ground that the petitioners want to retract from their earlier stand and plead a new case. It is also observed by the trial court that petitioners were required to invoke the provisions of Order VI Rule 17 of the Code, in case they wanted to amend their written statement. Even the petitioners in their written arguments submitted that the law relating to pre trial amendments are settled and the learned trial courts have been liberal enough so that the justice may not be defeated at the hands of procedural law and has further submitted that the petitioners have the statutory right to seek amendment of their first written statement or even file additional written statement under Order VIII Rule 9 of the Code in order to make factual stand clear before the court. The Hon'ble Apex Court in P. A. Jayalakshmi v. H. Saradha, (2009) 14 SCC 525 has examined the distinction between Order 6 Rule 17 and Order 8 Rule 9 and has held as under:
"10. Order 6 Rule 17 speaks of amendment of pleadings whereas Order 8 Rule 9 provides for subsequent pleadings by a defendant. The distinction between the two provisions is evident. Whereas by reason of the former unless a contrary intention is expressed by the court, any amendment carried out in the pleadings shall relate back to the date of filing original thereof, subsequent pleadings stand on different footings."
16. The perusal of the application reveals that leave has been sought to file additional written statement on the following grounds and the relevant portion of the application is reproduced as under:
12 CM(M) No. 53/2019
"3. The compromise petition has vindicated the stand of applicants wherein the plaintiff and defendants 1-5 have taken contradictory pleas to what has been their previous stand as such the same needs a detailed reply through an additional written statement."
17. The application filed by the petitioners by applying the ratio of judgment (supra) cannot by any means be termed as an application seeking amendment of the pleadings because the petitioners want to submit a detailed reply to the contradictions between the original stand of the respondents and the compromise petition filed by them subsequently. The application has not been filed by the petitioners for elaborating the defence already taken by them but only to respond to the contradictions between the original stand of the respondents and the compromise petition. The Apex Court has also examined the scope for permitting additional written statement in case titled Olympic Industries v. Mulla Hussainy Bhai Mulla Akberally, (2009) 15 SCC 528 and the relevant para is extracted as under:
"18. It is also well settled that while allowing the additional counter-statement or refusing to accept the same, the court should only see that if such additional counter-statement is not accepted, the real controversy between the parties could not be decided. As noted herein earlier, by filing an additional counter- statement in the present case, in our view, would not cause injustice or prejudice to the respondents but that would help the court to decide the real controversy between the parties. In our view, the High Court was, therefore, not justified in rejecting the application for permission to file additional counter-statement as no prejudice could be caused to the respondent which would otherwise be compensated in terms of costs."
18. Testing the case of the petitioners on the principles laid down in judgment(supra) the sole ground raised by the petitioners for seeking leave to file 13 CM(M) No. 53/2019 additional written statement is that the petitioners wants to file the detailed reply to the contradictory pleas between the previous stand of the respondents and the subsequent compromise petition. This Court is of the considered opinion that without permitting the petitioners to file the additional written statement, the real controversy between the parties would not escape adjudication by the Court and the petitioners without filing additional written statement can still demonstrate the contradictions and its effect on the merits of the case. The real controversy between the parties is with regard to the validity of the sale deeds and the enforcement of the agreement to sell. The reasons assigned by the trial court that the petitioners want to retract from their earlier stand is contrary to record as the petitioners have not filed the proposed additional written statement and have also not divulged their stand in the application seeking leave to file additional written statement and similarly the delay cannot be sole criteria for rejection of application. The reasons for dismissal of the application furnished by the trial court are contrary to the decision of the Apex Court mentioned above but the application deserved dismissal for the reasons mentioned above.
19. Now coming to the last contention that the compromise decree cannot be passed as the petitioners are not party to the said compromise. It is clear from the perusal of the order dated 18.10.2017 that the trial court had directed the parties to address the issue whether the compromise can be made applicable and binding on all the parties. The trial court vide order dated 19.10.2019 had merely directed the learned counsel for the parties to cause appearance of their respective parties before the court for recording their statement in support of the compromise and the trial court has neither decided the issue as contemplated by order dated 14 CM(M) No. 53/2019 18.10.2017 nor has passed any compromise decree therefore, this contention of the petitioners is premature and cannot be considered at this stage.
20. In view of all what has been discussed above, the trial court has passed the order impugned within the domains of law and there is no any illegality or jurisdictional error in the order impugned, as such, this petition is devoid of merit and is dismissed.
(RAJNESH OSWAL) JUDGE Jammu:
05.02.2021 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No