Shakshi Township Private Limited vs Shrimati Kumud Tandon and Others

Sujoy Paul, J.—By filing this petition under Article 227 of the Constitution of India, the petitioner has called in question the order dated 27th April, 2012 passed by the Court of Ninth Additional Judge to the Court of First Civil Judge Class II, Gwalior in Civil Suit No. 45A/2011 whereby his application under Order 1 Rule 10 C.P.C. (Annexure P/7) is rejected. Shri Prashant Sharma, learned counsel for the petitioner submits that by filing the application under Order 1 Rule 10 read with section 151 C.P.C. it was stated that the petitioner is also a beneficiary in the suit filed by plaintiff/respondent No. 1 Shrimati Kumud Tandon. In para 3 of the said application, it is specifically stated that the present petitioner has filed a suit for temporary injunction which was registered as Civil Suit No. 7A/2010 before the Court below. Learned counsel for the petitioner submits that if the prayer/relief in the civil suit filed by respondent No. 1 Shrimati Kumud Tandon and civil suit No. 7A/2010 filed by the present petitioner is examined in juxtaposition, it will be clear that the same sale deed dated 25th/29th October, 2010 is under challenge in both the suits. He submits that once the similar relief is claimed by the petitioner in a different suit, the Court below should have considered this aspect while deciding the said application whereas there is no consideration of this aspect by the Court below.

Shri Prashant Sharma, learned counsel for the petitioner submits that the order is perverse in nature and suffers from procedural impropriety. Relevant factors are not taken into account by the Court below which vitiate the impugned order.

Per contra, Shri Shashank Indapurkar, learned counsel appearing on behalf of respondent No. 2 supports the order and submits that the Court below has rightly held that if the suit is allowed no adverse impact will be passed on to the present petitioner and in absence of showing that the petitioner has purchased any part of the disputed land, by no stretch of imagination, he is necessary party and, therefore, the Court below has not erred in disallowing the application. In support of the contentions, learned counsel relied on the judgments of Hon''ble the Apex Court in the cases of Mohd. Yunus Vs. Mohd. Mustaqim and Others, and Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, .

I have heard learned counsel for the parties and perused the record.

On a specific question being asked by the Court, Shri Shashank Indapurkar, learned counsel appearing on behalf of respondent No. 2 fairly admitted that the same sale deed dated 25th/29th October, 2010 is under challenge in both the suits aforesaid. A microscopic reading of the order passed by the Court below would show that the Court below has only taken into account the factor that the petitioner has not purchased any land which is covered in the civil suit filed by respondent Shrimati Kumud Tandon. However, the factum of nature of the civil suit filed by the petitioner wherein the same sale deed is under challenge is not at all taken into account by the Court below. It is settled in law that interference can be made under Article 227 of the Constitution of India when the Court has not taken into account the relevant consideration or taken into account irrelevant consideration. If the relevant consideration is not taken into account, the order suffers from procedural irregularity and impropriety. The impugned order does not deal with the second aspect raised in the application (Annexure P/7), i.e. pendency of another civil suit No. 7A/10 wherein same sale deed dated 25th/29th October, 2010 is called in question.

Considering the aforesaid, in my opinion, the impugned order cannot be permitted to stand. The judgments cited by the learned counsel for respondent No. 2 are of no assistance to him. But on the contrary, as per the case of Shalini Shyam Shetty (supra), interference can be made when relevant consideration is not taken into account or the order has been without application of mind or principles of natural justice are violated. In the considered opinion of this Court, the Court below has erred in not taking into account the averments of para 3 of the application (Annexure P/7) filed under order 1 Rule 10 C.P.C. before it.

Normally, I would have remitted the matter back to the Court below for consideration of the aforesaid facet which was left out by it, however, considering the fact that in the present case, the factum of civil suit by the petitioner, wherein the same relief of annulment of the sale deed dated 25th/29th October, 2010 is challenged, is not in dispute, therefore, in the fitness of things, in the opinion of this Court, it would be proper to implead the petitioner by way of order 1 Rule 10 C.P.C. In other words, in my opinion, since the petitioner has filed a civil suit wherein same sale deed dated 25th/29th October, 2010 is called in question, it would be proper to allow the application under Order 1 Rule 10 C.P.C. (Annexure P/7). This will not cause any prejudice to the original plaintiff.

Considering the aforesaid and for the reasons stated herein above, the impugned order passed by the Court below is set aside. The application Annexure P/7 is allowed and the Court below is directed to take appropriate action for compliance of this order. Petition is allowed to the extent indicated herein above.