In my view, the Applicant is neither necessary party nor proper party and
his presence is not necessary in order to enable the court to effectually and
completely adjudicate all the questions involved in the suit. In my view, the claim
of the Applicant that the property in question is HUF property cannot be decided
in this suit for specific performance of agreement which is all together for a
different reliefs.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 1600 OF 2009
IN
SUIT NO. 2674 OF 2006
Mulchand K.Ranka & Anr.
..... Plaintiffs
Vs.
Hitesh C.Jhaveri & Ors.
CORAM
: R.D. DHANUKA, J.
PRONOUNCED ON : 9th MARCH, 2012.
The Applicants have taken out this Chamber Summons for impleading
themselves as party to Suit No.2674 of 2006 claiming to be necessary party. The
Plaintiffs have filed the suit for seeking specific performance of the Agreement
dated 12th January, 1991 and in the alternative, for damages to the tune of Rs.27
crores together with interest. It is case of the Applicant that Plaintiff No.1 is the
brother of the Applicants and all brothers belong to Undivided Joint Hindu family.
It is his case that his father late Kaluchand Hanjarimal Ranka had initially started
the business of watch repairing and subsequently he closed down the said
business and had ventured into business of construction and development of
properties. It is his case that several properties in and around Mumbai came to
be developed jointly. It is his case that till date, no partition oral or written by
metes and bounds have taken place and all the business are carried out for the
joint Hindu family of the Applicants and Plaintiffs and their mother Devubai
K.Ranka. It is the case of the Plaintiffs that though Plaintiffs had entered into an
agreement with the Defendant, the Applicants who are also entitled to share in it,
deals into the business of the Hindu Joint Undivided Family. It is contended by
the Applicants that they are proper and necessary party to the suit and as such are
required to be joined as parties to the suit. The Applicants also relied upon the
affidavit dated 13th April, 2010 filed by the mother of the Applicants and Plaintiff
No.1 supporting the Applicants.
2.
This Chamber Summon has been vehemently opposed by the Plaintiffs and
other Defendants. The Learned Counsel appearing for the Plaintiffs state that the
Applicants are neither necessary nor property parties to the suit. The Plaintiffs
also denied the allegations of the Applicant that the suit property or any part
thereof were part of Joint Hindu Undivided Family. The Plaintiffs denied that the
Applicants have any right, title or interest of whatever manner in the suit
property.
3.
The Learned Counsel appearing for Defendant Nos. 1A to 1E and for
Defendant No.2 contended that Applicants are attempting to delay the hearing of
the suit and the application is false and frivolous. The Defendants also contended
that the Applicant was neither necessary nor property required to be impleaded as
the Defendants to the suit. The Plaintiffs as well as the Defendants also
contended that after filing of this Chamber Summons, the Plaintiffs have already
filed separate suit being No. 261 of 2011 against the Plaintiffs herein and the
Defendants for various reliefs. According to the Plaintiffs herein and the
Defendants, the allegations made in the Chamber Summons that the suit property
is HUF property and that the Applicants have share in the same is also subject
matter of the said suit No. 261 of 2011 and therefore on this ground also the
Chamber Summons is liable to be dismissed.
4.
The matter was heard on 14th February, 2012 when the Applicants and
Plaintiffs were directed to furnish copy of the said plaint referred by the parties
filed by the Applicants in this Court. Since the copy was not furnished by the
parties, the matter was placed for directions on 28th February, 2012. On 28th
February, 2012, Learned Counsel for the Applicants submitted a copy of the plaint
with annexures in Suit No. 261 of 2011. I have considered the copy of the plaint
filed in Suit No. 261 of 2011 also. In the said suit bearing No. 261 of 2011, the
Applicants herein have alleged that under the Agreement dated 12th January,
1991(which is the subject matter of this suit), the Plaintiff No.1 herein was
entitled to 35% share in the profit and/or losses of the joint venture. Remaining
65% share was to be held by Defendant Nos. 2 to 33 of the suit. It is to be
pointed out here at this stage that some of the Defendants are also parties to this
suit. In para 14 of the said suit, the Applicants have alleged that the Applicants
had filed Chamber Summons No. 1600 of 2009 hurriedly in Suit No. 2674 of
2006 and sought to be impleaded in the said suit. The said Chamber Summons
was taken out on the advice of the then advocate of the Applicants herein and the
same is pending.
5.
In para 16(b) of the said suit, the Applicants have alleged that the
Defendant No.1 (Plaintiff No.1 in the present suit) is bound in law to hold such
benefit/advantage/50% share in the said firm and ownership of the property for
the benefit of and in trust for the Plaintiffs (i.e. Applicants herein). The
Applicants in the said suit has prayed for declaration that Defendant No.1
(Plaintiff No.1 herein) hold 50% share in Defendant No.34 firm and through it
50% of the said property and for the benefit of and on account of the Plaintiffs
and that the Plaintiffs are entitled to the same. The Applicants have also prayed
for an order and decree that the properties be sold and 3/4th of 50% of the sale
proceeds be handed over to the Applicants herein. The said suit is pending in this
Court.
6.
In rejoinder, the Learned Counsel appearing for the Applicants contended
that in the aforesaid suit, the Plaintiffs herein had taken out Notice of Motion
bearing No. 3196 of 2006. The Plaintiffs had made an attempt to withdraw the
said Notice of Motion so as to jeopardize the Hindu Undivided Family property. It
is contended by the Applicants that it is likely that in collusion with the
Defendants, the Plaintiffs may withdraw the suit itself jeopardizing the interest of
the Applicants. It would be necessary to refer to the relevant provisions which
have been invoked by the Applicants.
7.
Order 1 Rule 10 of the Code of Civil Procedure, 1908, which reads as
under:
10. Suit in name of wrong plaintiff.
(1) Where a suit has been instituted in the name
of the wrong person as plaintiff or where it is
doubtful whether it has been instituted in the
name of the right plaintiff, the Court may at any
stage of the suit, if satisfied that the suit has been
instituted through a bona fide mistake, and that it
is necessary for the determination of the real
matter in dispute so to do, order any other person
to be substituted or added as plaintiff upon such
terms as the Court thinks just.
(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.
(3) No person shall be added as a plaintiff suing
without a next friend or as the next friend of a
plaintiff under any disability without his consent.
8.
In the case of Kasturi vs. Iyyamperumal and others reported in AIR 2005 SC
2813 after considering the provisions of Order 1 Rule 10 of the Code, the Apex
Court has held that the necessary parties in a suit for specific performance of a
contract for sale are the parties to the contract or if they are dead their legal
representatives as also a person who had purchased the contracted property from
the vendor. It is held that the contract constitutes rights and also regulates the
liabilities of the parties. It is held that two tests are to be satisfied for
determining the question who is a necessary party. Tests are (1) there must be a
right to some relief against such party in respect of the controversies involved in
the proceedings (2) no effective decree can be passed in the absence of such party.
In the said Judgment, the Apex Court has followed the Judgment in the case of
Vijay Pratap and others vs. Sambhu Saran Sinha reported in (1996) 10 SCC
53 in which it was held as under :
14. .............. to decide the right, title and
interest in the suit property of the stranger to the
contract is beyond the scope of the suit for specific
performance of the contract and the same cannot
be turned into a regular title suit. Therefore, in
our view, a third party or a stranger to the contract
cannot be added so as to convert a suit of one
character into a suit of different character.
9.
At para 15 of the said Judgment delivered by the Apex Court, it is held as
under:
15. That apart, from a plain reading of the
expression used in subrule (2) Order 1 Rule 10 of
the CPC "all the questions involved in the suit" it is
abundantly clear that the legislature clearly meant
that the controversies raised as between the
parties to the litigation must be gone into only,
that is to say, controversies with regard to the right
which is set up and the relief claimed on one side
and denied on the other and not the controversies
which may arise between the plaintiff/appellant
and the defendants inter se or questions between
the parties to the suit and a third party. In our
view, therefore, the court cannot allow
adjudication of collateral matters so as to convert
a suit for specific performance of contract for sale
into a complicated suit for title between the
plaintiff/appellant on one hand and Respondent
Nos. 2 & 3 and Respondent Nos. 1 and 4 to 11 on
the other.
10.
In view of the fact that the Applicants have already filed a separate suit
being suit No. 261 of 2011 for claiming similar reliefs and has raised similar
issues which are sought to be raised in the present Chamber Summons, no relief
can be allowed in the present Chamber Summons taken out by the Applicants.
11.
In my view, the Applicant is neither necessary party nor proper party and
his presence is not necessary in order to enable the court to effectually and
completely adjudicate all the questions involved in the suit. In my view, the claim
of the Applicant that the property in question is HUF property cannot be decided
in this suit for specific performance of agreement which is all together for a
different reliefs.
12.
In view of the facts, the Applicants have already filed a substantial suit, no
reliefs in the present Chamber Summons can be granted. It is for the Applicants
to make an application for clubbing of this suit with Suit No. 261 of 2011, if he so
desire.
13.
In my view, the Chamber Summons is totally misconceived and therefore
the same is dismissed with no order as to cost.
[R.D. DHANUKA, J.]
No comments:
Post a Comment