Vishandas Parwani (Dead) Thr. Its Lrs ... vs Shubhalay Villa A Partnership Firm on 17 August, 2022

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Madhya Pradesh High Court

Vishandas Parwani (Dead) Thr. Its Lrs ... vs Shubhalay Villa A Partnership Firm on 17 August, 2022

Bench: Arun Kumar Sharma

1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA

MISC. PETITION No. 4865 of 2021

Between:-
1. VISHANDAS PARWANI (DEAD) THR. ITS LRS
SMT. BHARTI PARWANI ALIAS JHANVI
MANGHVANI W/O PRAKASH MANGWANI R/O
48, IDGAH HILLS (MADHYA PRADESH)

2. SMT. BHARTI PARWANI ALIAS JHANVI
AMNGHVANI W/O. PRAKASH MANGWANI, AGE-
ADULT, R/O. 48, IDGAH HILLS BHOPAL
(MADHYA PRADESH)

SMT. SARITA PARVANI W/O RAKESH
3. J AGTAYAN I 48,IDGAH HILLS BHOPAL MP
(MADHYA PRADESH)

4. JITESH PARWANI S/O LT. VISHANDAS PARWANI
48,IDGAH HILLS BHOPAL MP (MADHYA
PRADESH)

5. JITESH ESTATE PVT LTD THR JITESH PARWANI
NOT MENTION (MADHYA PRADESH)

6. CITY BUILDERS AND INVESTMENT THR ITS
PARTNER JITESH PARWANI 141, MALVIYA
NAGAR BHOPAL (MADHYA PRADESH)

7. PARWANI BUILDING LANDMARKS PVT. LTD
THR ITS DIRECTOR JITESH PARWANI 141,
MALVIYA NAGAR BHOPAL (MADHYA
PRADESH)

.....PETITIONER
(BY SHRI SANKALP KOCHA, LEARNED COUNSEL FOR THE
PETITIONER)

AND

1. SHUBHALAY VILLA A PARTNERSHIP FIRM THR.
ITS PARTNERS SHISHIR KHARE R/O E-7/150,
ARERA COLONY (MADHYA PRADESH)

2. M/S VISHNU HITESH BUILDERS AND
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 8/17/2022
5:33:48 PM
2
DEVELOPERS THR ITS PARTNER SHISHI
KHARE R/O E-7/150, ARERA COLONY, BHOPAL
MP (MADHYA PRADESH)

3. SHISHIR KHARE S/O SHRI G.L. KHARE R/O E-
7/150, ARERA COLONY, BHOPAL MP (MADHYA
PRADESH)

.....RESPONDENTS
(BY SHRI AVINASH ZARGAR, LEARNED COUNSEL FOR THE
RESPONDENTS)

Th is petition coming on for hearing this day, th e court passed the
following:
ORDER

(Passed on 17th Day of August, 2022) With the consent of both the parties, this petition is finally heard. The petitioners have preferred the present petition under Article 227 of the Constitution of India being aggrieved vide order dated 13/12/2021 (Annexure-P/8) passed by 25th District Judge and Additional Sessions Judge, Bhopal in Civil Suit No. RCS 579/2016, whereby an application filed by the petitioners under Order 1 Rule 10 (2) of C.P.C. has been dismissed.

Brief facts of the case are that the respondents have filed a Civil Suit bearing registration No. RCS 579/2016 before learned XXVth District & Additional Sessions Judge, Bhopal for specific performance of alleged agreement dated 23/11/2012 (Annexure P/2) and permanent injunction; wherein respondent No.3 and petitioner No.1 were the party. Alleged agreement dated 23/11/2012 has never been executed by the petitioners and the same has been forged by the respondents. As soon as petitioner No.1 came to know about the existence of the alleged agreement dated 23/11/2012, at the very instance, he lodged the FIR (Annexure P/3) against the respondents. During pendency of the aforesaid civil suit, petitioner Nos. 2 to 7 filed an application under Order 1 Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 8/17/2022 5:33:48 PM 3 Rule 10 (2) of CPC (Annexure P/4) before learned trial Court on the ground that they are not necessary party because the said agreement dated 23/11/2012 was allegedly executed between respondent No.3 and petitioner No.1 and the respondents have convincingly impleaded petitioner nos. 2 to 7 with intend to harass and vitalize them. Respondents filed the reply to the said application by contending that petitioner Nos. 2 to 7 are necessary and proper party for adjudication of the civil suit as the respondents had earlier filed civil suits RCS No. 1089A/2012 and RCS B/109/2012, wherein petitioner Nos. 2 to 7 were necessary party. Respondent No. 3 had filed a Civil Suit RCS No. 1089A/2012 before learned District and Sessions Judge, Bhopal praying for specific performance of agreement. During aforesaid civil suit, respondents on its own record filed an application under Order 23 Rule 1 of CPC but did not file any document so as to bring on record the terms of alleged settlement, whereafter the respondents withdrew the aforesaid civil suit, however, no liberty was granted by learned District and Sessions Court for filing a fresh civil suit. Respondent No.3 had also filed another civil suit RCS B/109/2012 before learned District and Sessions Court at Bhopal for recovering Rs.8,54,42,529/-. During pendency of the aforesaid suit, respondents on its own record filed an application under Order 23 Rule 1 of CPC, however, they did not file any document so as to bring on record the terms of alleged settlement, thereafter, respondents withdrew the aforesaid civil suit but no liberty was granted by learned District and Sessions Court for filing a fresh civil suit. The application filed by petitioner Nos. 2 to 7 came up for hearing on 13/12/2021, the trial court vide impugned order rejected the said application. Feeling dissatisfied by the impugned order, the petitioners have preferred present petition before this Court.

Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 8/17/2022 5:33:48 PM 4

Learned counsel for the petitioner submits that the trial Court has committed error in rejecting the application filed by petitioner Nos. 2 to 7 without appreciating the fact that the petitioner Nos. 2 to 7 were never privy to the alleged agreement dated 23/11/2012 so also the fact that the respondents are only seeking specific performance of alleged agreement dated 23/11/2012. It is also submitted that the respondents have concealed material facts from the Authorities in their bid to somehow explain the fact that petitioner Nos. 2 to 7 are necessary and proper party in the said civil suit. It is further submitted that it would not be out of place to mention that one Pyare Khan had also filed a civil suit RCS No. 733A/2012 before learned District and Sessions Court for specific performance of agreement dated 09/10/2009 and during pendency of the aforesaid suit, petitioner Nos. 2 to 7 filed an application under Order 7 Rule 11 of CPC on the ground that they are not necessary and proper party in the said suit as they never privy to the alleged agreement. The said application came up for hearing on 25/06/2014, whereupon learned trial Court, Bhopal pleased to allowed the said application and the said order was also upheld by this Honble Court, vide order dated 08/12/2014 passed in WP No. 15344/2014. Under these circumstances, learned counsel for the petitioners prays for setting aside of the impugned order. In support of his contentions, learned counsel for the petitioners have placed reliance on various judgments of Honble Apex Court in the case of Panne Khushali and another Vs. Jeewanlal Mathoo Khatik and another, 1975 SCC Online MP 28: AIR 1976 MP 148 (FB), Bureau f Indian Standards Vs. Suresh Chandra Gupta, 2015 SCC Online Del 7657 and The State Trading Corporation of India Limited Vs. Chittoor Co- operative Sugar Limited & Others, ILR (1989) II Delhi 415.

Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 8/17/2022 5:33:48 PM 5

On the other hand, learned counsel for the respondents have vehemently opposed the contentions canvassed by learned counsel for the petitioners by contending that the trial court has not committed any illegality or perversity in passing the impugned order because the petitioner Nos. 2 to 7 are the persons against whom relief has been sought by the respondents. Under these circumstances, learned counsel for the respondents prays for dismissal of the petition.

I have heard learned counsel for the parties at length and perused the documents available on record.

Order 1 Rule 10 (2) of CPC reads as follows:-

" (2) Court may strike out or add parties- The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

In Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre & Hotels Pvt. Ltd.; 2007 SCC 417, the Supreme Court held as follows:-

" 15. Necessary party is a person who ought to have been jointed as a party and in whose absence no effective decree could be passed at all by the court. If a necessary party is not impleaded, the suit itself is liable to be dismissed. A proper party is a party who, though not a necessary party, is a person whose presence Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 8/17/2022 5:33:48 PM 6 would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance. "

The scope and ambit of Order 1 Rule 10 (2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub- rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10 (2) of the Code the court will of course act according to reason and fair play and not according to whims and caprice.

I n Ramesh Hiranand Kundanmal Vs. Municipal Corporation of Bombay; (1992) 2 SCC 524, the Supreme Court held as follows:-

" The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 8/17/2022 5:33:48 PM 7 has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interest in the action in the answer i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. "

On perusal of the record it becomes axiomatic that the alleged agreement dated 23.11.2012 was executed between the petitioner no.1 Vishandas Parwani and the respondent no. 3 and except both of them, no other person was party to the said agreement. It would not be out of place to mention here that the respondents had filed two civil suits bearing RCS No.1089A/12 and RCS No.109B/12 for specific performance of agreement and also for recovering Rs.8,54,42,529/- but the respondents withdrew both the aforesaid civil suits without any liberty. Moreover, as per the petitioner no.1, the alleged agreement is said to have been fraudulently prepared by the respondents and when this fact came into knowledge of the petitioner no.1, he immediately lodged an FIR against the respondents and a copy whereof is also annexed with the petition as Annexure-P/3. This court has no hesitation to hold that the petitioner nos. 2 to 7 are not necessary party and not proper party to the suit. Apart from above, there is no material available on record to demonstrate that the petitioners no. 2 to 7 were very well aware of the alleged agreement to have been executed between the petitioner no. 1 and the respondent no. 3 and it is also evident that no relief was sought against the petitioners no. 2 to 7 in the earlier suits filed by the respondent no. 3. Further, the petitioners no. 2 to 7 were not the attesting witnesses of the alleged agreement dated 23.11.2012.

Apart from above, it would not be out of place to mention here that one Pyare Khan had also filed a civil suit RCS No. 733A/2012 before learned Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 8/17/2022 5:33:48 PM 8 District and Sessions Court for specific performance of agreement dated 09/10/2009 and during pendency of the aforesaid suit, petitioner Nos. 2 to 7 filed an application under Order 7 Rule 11 of CPC on the ground that they are not necessary and proper party in the said suit as they never privy to the alleged agreement. The said application came up for hearing on 25/06/2014, whereupon learned trial Court, Bhopal pleased to allowed the said application and the said order was also upheld by this Honble Court vide order dated 08/12/2014 passed in WP No. 15344/2014. On perusal of the record, it is axiomatic that in the earlier civil suit bearing RCS No.579/16, the respondents are only seeking specific performance of the agreement dated 23.11.2012.

Looking to the peculiar facts and circumstances of the case and in view of the case laws cited by learned counsel for the petitioners, in the considered opinion of this Court, the trial Court has committed error in rejecting the application filed by the petitioner Nos. 2 to 7 under Order 1 Rule 10(2) of C.P.C., which is not sustainable in the eyes of law. Accordingly, the present petition filed by the petitioners under Article 227 of the Constitution of India is allowed and the impugned order dated 13/12/2021 passed by 25th District Judge and Additional Sessions Judge, Bhopal in Civil Suit No. RCS 579/2016 is hereby set aside, meaning thereby the application filed by the petitioners filed under Order 1 Rule 10 (2) of C.P.C. before the Court below stands allowed. Consequently, interim order dated 21.01.2022 stands vacated.

Let a copy of this order be sent to the concerned trial Court for information and its compliance.

Certified copy as per rules.

Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 8/17/2022 5:33:48 PM 9

(ARUN KUMAR SHARMA) JUDGE JP Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 8/17/2022 5:33:48 PM

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