Ashok Pal & Others vs Bhagwati Sahand Others

Manoj Kumar Tiwari, J

The question, which falls for consideration in this writ petition, is whether a transferee pendente lite is a necessary or proper party to an injunction suit for his impleadment under Order 1 Rule 10(2) of C.P.C.

Facts of the present case, shorn of unnecessary details, are as under:-

(i) Mr. Harprasad Sah and Mr. Gurucharan Singh Kohli filed a suit for permanent injunction for restraining the defendants, their agents, assignees etc. from encroaching upon the suit land, as described in para 1 of the plaint. Defendants entered appearance and filed written statement in the suit, which is numbered as Civil Suit No. 4 of 2013.

(ii) After death of Mr. Harprasad Sah (Plaintiff No.1) his wife Smt. Bhagwati Sah has been substituted as his legal representative.

(iii) Petitioners jointly moved an application under Order 1 Rule 10(2) of C.P.C. contending that they have purchased part of the suit property by means of different sale deeds executed in the year 2014, therefore, their interest is also involved in the matter and being a necessary and proper party, they should be impleaded as defendants in the suit. The said application made by the petitioners was rejected by learned trial court vide order dated 09.01.2017, by holding that having regard to the relief claimed in the suit, petitioners are neither necessary nor proper party. It was further observed that if defendants keep on executing sale deeds and then ask the buyers to get themselves impleaded in the suit, then it will prolong and deviate the proceedings.

(iv) Petitioners challenged the said order by filing revision under Section 115 of C.P.C., which has been rejected by learned 1st Additional District Judge, Haldwani vide judgment dated 29.11.2017.

By means of this writ petition, petitioners have challenged the orders passed by learned trial court as well as revisional court.

In an injunction suit, question of title is not directly and substantially in issue and the prayer for injunction has to be decided with reference to the finding on possession, as held by Hon'ble Supreme Court in the case of Anathula Sudhakar vs. P. Buchi Reddy, reported in (2008) 4 SCC 594. Para No. 21 of the said judgment is reproduced below:-

"21. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:-

(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."

Order 1 Rule 10(2) of C.P.C. enables the court to add or strike out a person as party to the suit. Rule 10(2) of Order 1 of Code of Civil Procedure is extracted below for ready reference:-

"10. Suit in name of wrong plaintiff-

(1) .....

(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."

A bare perusal of the aforesaid provision reveals that its primary object is to bring before the court, at one and the same time, all the persons interested in the dispute so that all the controversies in the suit may be finally determined once and for all in the presence of all the parties without delay, inconvenience and expenses of several actions, trials and inconclusive adjudication. The provision thus confers wide discretion on the court to meet with every case of defect of parties and is not affected by the inaction of the plaintiff to bring the necessary parties on record. Such discretion, however, has to be exercised judicially and on sound legal principles.

In the case of Anil Kumar vs Shivnath reported in (1995) 3 SCC 147, while considering Order 1, Rule 10(2) of C.P.C., Hon'ble Supreme Court observed that "though the court may have power to strike out the name of a party improperly joined or add a party either on application or without application of either party, the condition precedent is that the court must be satisfied that the presence of such party would be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit..... The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid multiplicity of proceedings."

Hon'ble Supreme Court in the case of Vidur Impex and Traders Private Limited & others vs Tosh Apartments Private Limited & others reported in (2012) 8 SCC 384, has laid down the broad principles for dealing with an application for impleadment. Para 41 of the said judgment is reproduced below:-

"41. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are:

41.1 The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit.

41.2 A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court.

41.3 A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.

41.4 If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.

41.5 In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.

41.6 However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment."

Hon'ble Supreme Court in the case of Sarvinder Singh Vs. Dalip Singh reported in (1996) 5 SCC 539, while dealing with a similar controversy as to whether a transferee pendent lite can be said to be a necessary or proper party to a suit, has held as under:-

"5. Having regard to the respective contentions, the question that arises for consideration is: whether the respondents are necessary or proper parties to the suit? It cannot be disputed that the foundation for the exclusive right, title and interest in the property, the subject matter of the suit, is founded upon the registered Will executed by Hira Devi, the mother of the appellant as on May 26, 1952. The trial court noted that in a suit filed on a previous occasion by the appellant, the will was propounded as basis for an exclusive right, title and interest in the said property. He impleaded Rajender Kaur, one of the daughters of Hira Devi, to the suit along with two other sisters and the suit came to be decreed by the trial Court on March 29, 1974. The decree became final. In view of those facts, the necessary conclusion that can be deduced is that the foundation for the relief of declaration in the second suit is the registered Will executed by Hira Devi in favour of the appellant on May 26, 1952. The respondents indisputably cannot challenge the legality or the validity of the will executed and registered by Hira Devi on May 26, 1952. Though it may be open to the legal heirs of Rajender Kaur, who was a party to the earlier suit, to resist the claim on any legally available to tenable grounds, those grounds are not available to the respondents. Under those circumstances, the respondents cannot, by any stretch of imagination, be said to be either necessary or proper parties to the suit. A necessary party is one whose presence is absolutely necessary and without whose presence the issue cannot effectually and completely be adjudicated upon and decided between the parties. A proper party is one whose presence would be necessary to effectually and completely adjudicate upon the disputes. In either case the respondents cannot be said to be either necessary or proper parties to the suit in which the primary relief was founded on the basis of the registered Will executed by the appellant's mother, Smt. Hira Devi. Moreover, admittedly the respondents claimed right, title and interest pursuant to the registered sale deeds said to have been executed by the defendants-heirs of Rajender Kaur on December 2, 1991 and December 12, 1991, pending suit.

Section 52 of the Transfer of Property Act envisages that "during the pendency in any Court having authority within the limits of India of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the right of any other party thereto under the decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. " It would, therefore, be clear that the defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or authority of the Court. Admittedly, the authority or order of the Court had not been obtained for alienation of those properties. Therefore, the alienation obviously would be hit by the doctrine of lie pendens by operation of Section 52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit."

In view of the settled legal position, petitioners cannot be said to be necessary or proper party in the injunction suit. A necessary party is one whose presence is absolutely necessary and without whose presence the issue cannot effectually and completely be adjudicated upon and decided between the parties. A proper party is one whose presence would be necessary to effectually and completely adjudicate upon the disputes.

Petitioners are neither necessary nor proper party to the suit in which relief of permanent injunction only has been sought against the defendants and there is no relief sought against the petitioners. This Court concurs with the reasoning given by learned trial court for rejecting petitioners' impleadment application and the revisional court has rightly affirmed the order passed by learned trial court.

Even otherwise also, the High Court, while exercising power under Article 227 of the Constitution of India, is not supposed to act as an Appellate Court. This Court does not find any jurisdictional error, or an error apparent on the face of record, which may warrant interference with the judgments rendered by learned courts below. In such view of the matter, this Court declines to interfere with the impugned judgment and orders.

Accordingly, writ petition fails and is hereby dismissed. No order as to cost.