Madhya Pradesh High Court
Raman Kishore Goyal vs Rakesh Kumar Jain on 13 July, 2015
WP.1672/2015 1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Writ Petition No.1672/2015
Raman Kishore Goyal & Anr.
Versus
Rakesh Kumar Jain and Anr.
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Shri Anand V. Bhardwaj, Advocate, for the petitioner.
Shri K.N.Gupta, Sr. Advocate with Shri M.L. Bansal, Advocate for
the respondent No.1.
Shri Prashant Sharma, Advocate for the respondents No. 2 to 6.
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ORDER
( 13 / 07 / 2015) This petition filed under Article 227 of the Constitution is directed against the order dated 04.03.2015 passed in Civil Suit No. 08A/2014 (ED) by VIIth Additional District Judge, Gwalior.
2. The respondent No.1 / plaintiff instituted the instant civil suit for specific performance of contract and permanent injunction in respect of agreement dated 14.01.2014. As per said agreement, Rs. 10,00,000/- were given as advance to the defendant No.1 and sale deed was required to be executed till 30.06.2014. The petitioner's case is that on 09.02.2014 the petitioner got a notice published in newspapers stating that the property in question is their own property. Simultaneously, legal notices were issued to the plaintiff.
3. The respondent No.1 filed the aforesaid suit, copy of plaint is Annexure P/2. The respondent / defendant appeared before the Trial Court and denied the averments of the plaint. They further denied the claim of title of the petitioners. During the pendency of this suit, the petitioner filed an application under Order 1 Rule 10 r/w Section 151 C.P.C. In the said application, it is contended that the disputed property was owned by Rami Bai W/o Phool Chand Agarwal. After death of Rami Bai, the present petitioners became owner pursuant to a registered will. It is WP.1672/2015 2 mentioned that petitioners are relatives of Rami Bai. Hence, they have interest in the property. If the defendants want to sell the property or any part thereof, the present petitioners have the right of pre-emption. It is further contended that without permission of present petitioners, the defendant No.1 has no authority to enter into an agreement or sell the property. Apart from this, it is contended that agreement dated 14.01.2014 aforesaid includes the minor members of the family. In absence of permission from competent court, no sale can take place in relation to property of said minor members. Respondent No.2 / defendant filed the reply and contended that the present petitioners have no right to intervene in the matter. The respondent No.1 / plaintiff by filing reply (Annenxure P/8) stated that plaintiff has no objection if court deems it proper to implead the applicant / petitioner.
4. The Court below by order dated 04.03.2015 rejected the said application. The court below opined that in a suit for specific performance, the present petitioners are not necessary parties. The court below relied on catena of judgments of various courts. In nutshell, the court below opined that applicants / petitioners are not necessary party.
5. Criticizing this order, Shri A.V. Bhardwaj submits that separate suit (probate proceeding) is pending at the instance of present petitioners before District Judge, Gwalior ( page 46). In the said probate proceeding filed under Section 276 of Indian Succession Act, the present petitioners have prayed for declaration / relief which has direct relation with the suit property. Thus, in the fitness of things, the court below should have allowed the application preferred under Order 1 Rule 10 C.P.C. In addition, it is urged that the defendant No.1 and other dependents are party to the said suit. For this reason also, the court below should have allowed the instant application. Shri Bhardwaj relied on (2007) 10 SCC 82 ( Sumitabai and Ors. Vs. Paras Finance Co.)
6. Per Contra, Shri Prashant Sharma contended that court below has not committed any jurisdictional error. In absence of any error or illegality, no interference is warranted. He relied on WP.1672/2015 3 judgment of Supreme Court in (Kasturi Vs. Iyyamperumal) reported in 2005 Legal Eagle (SC) 396.
7. Shri K.N. Gupta, Sr. Advocate appearing for respondent No.1, submits that if court deems it proper, he has no objection if petitioner is directed to be impleaded before the Court below.
8. No other point is pressed by the parties.
9. I have heard learned counsel for the parties and perused the record.
10. The court below opined that the petitioner has pleaded about his right of pre-emption in his application preferred under Order 1 Rule 10 C.P.C. It is held that in a suit for specific performance, present petitioner is not a necessary party. In the present petition, the petitioner has contended that a probate proceeding is pending in the court of VII Additional District Judge, Gwalior. In view of nature of relief prayed therein and on account of fact that Smt. Sunita Devi and her dependents are non- applicants in the said case, his application should have been allowed. A plain reading of application preferred under Order 1 Rule 10 C.P.C. shows that this fact of pendency of said probate proceeding is not averred in the application. Putting it differently, the petitioner has not mentioned about pendency of probate proceeding in his application filed before the court below. In the present case a copy of probate application is filed which does not contain any case number. No case number and stage of said proceeding is shown in present writ petition. The principle laid down in Sumtibai (supra) cannot be doubted. In the facts and circumstances of a particular case if applicant is able to show a fair semblance of title or interest, he can file application for impleadment. However, the application preferred under Order 1 Rule 10 C.P.C the petitioner has failed to show any fair semblance of title or interest. Thus, this judgment is of no help to the petitioner.
11. Calcutta High Court in AIR 1995 Calcutta 381 (Sri Santosh Kumar Hui Vs. Sri Prakash Kumar Palit and others) opined that a plain reading of enabling provision of Specific Performance Act makes it lucidly clear that right must flow from WP.1672/2015 4 the contract. Since the right of pre-emption cannot be said to have flown from the contract alleged to have been executed, no relief can be claimed under Section 22 of the said Act. I am in respectful agreement with the view taken by Calcutta High Court. The petitioner has miserably failed to show that he had any title on the property in question. The question of right of pre-emption of present petitioners cannot be gone into in a suit for specific performance filed by respondent No.1 herein. In a petition filed under Article 227 of the Constitution, petitioner cannot be permitted to raise new facts.
12. At the cost of repetition, in my view, since the petitioner has not pleaded about pendency of probate proceeding, the court below had no occasion to examine this aspect while passing the impugned order. A new plea, totally based on facts, cannot be permitted to be raised for the first time in a proceeding of this nature.
13. As analyzed above, the court below has taken a plausible view and order is neither without jurisdiction nor suffers from any manifest procedural impropriety or perversity. There is no ingredient on which interference can be made by this Court.
14. Petition fails and is hereby dismissed.
(Sujoy Paul) Judge sarathe