Here, the plaintiff sued and had the decree. Thus, he is
entitled to the decretal amount. When he wanted to withdraw
that amount, somebody else objects. That somebody maybe his
brother or his erstwhile agent. However strong that person's
right to recovery maybe, he cannot file an intervention
application in an already disposed of matter and stay the
execution of the decree or nullify the decree without proper
judicial recourse. {Para 36}
37. After all is said and done, here comes the palliative. If
Subhash has an enforceable claim against either Rajesh or
Sudarshan, the above suit does not defeat his rights. Much less
do these observations affect Subhash’s supposed rights.
38. Under these circumstances, I express my inability to
entertain this application despite diligent efforts made by Shri
Savant, the applicant’s counsel. I, therefore, dismiss it.
39. Shri Savant, at this juncture, wants this Court to
restrain the respondent-plaintiff from withdrawing the decretal
amount for at least eight weeks, so the applicant could explore
his remedial options. The Respondent's counsel, of course,
strongly opposes this plea.
As the intervention application in a disposed of suit has
been summarily rejected, I see no justification for the Court to
grant such relief as the applicant sought. The request stands
rejected.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 11624 OF 2021
IN
SUIT NO. 2700 OF 2011
RAJESH SAICHAND SHARMA Vs SUDERSHAN GANGARAM RAJULA
CORAM : DAMA SESHADRI NAIDU, J.
DATE : 11th JUNE, 2021.
Introduction:
A contracts with B for purchasing some property. B
defaults. So A sues. In that suit, C, the brother of A, represents A
as his power of attorney agent (POA). A few years later, A
discharges C from being his POA; he pursues the case
independently and gets a decree—not for specific performance
but for the return of money. When A wants to withdraw the
deposited decretal amount, C, his brother and erstwhile POA,
objects. He wants to intervene in the disposed of suit and stake a
claim to a part of the decretal amount on the premise that he,
too, has contributed to the sale consideration.
2. Can C’s claim be countenanced? Is such an ‘intervention
application’ maintainable?
Facts:
3. Rajesh Saichand Sharma and Subhash Chandra
Saichand Sharma are brothers, now estranged. Rajesh lives in
the U.S.A. and Subhash in Mumbai. Initially, Rajesh filed the
above suit for specific performance against one Sudarshan
Gangaram Rajula. He pleaded that he contracted with
Sudarshan to buy a flat and paid a part of the sale consideration.
According to him, though he was willing to pay the balance sale
consideration and have a regular deed of conveyance in his
favour, Sudarshan did not come forward to perform his part of
the contract. With that cause of action, Rajesh filed Suit No.
2700 of 2011 before this Court for specific performance.
Incidentally, Subhash, his brother, was his power of attorney
agent in the Suit.
4. Of course, defendant Sudarshan denied the whole
transaction. On the other hand, he pleaded that it was a money
transaction camouflaged as an agreement of sale. But we need
not visit that controversy. The fact remains that when the suit
was pending, in 2017 Rajesh cancelled the power of attorney
and pursued the case on his own.
5. Over time, either to prove his bona fides or as an
interim step in aid of final adjudication of the suit, Sudarshan
deposited certain amounts in the Court. That was based on this
Court’s interim directions, and the amount remains deposited
with a nationalised bank, earning interest.
6. Eventually, this Court, through judgment dated
07.05.2021, decreed the Suit. The disposition of the judgment
reads as:
Para 4. Accordingly, the suit is decreed in the
sum of Rs. 61 lacs deposited by the Defendant in
this court together with accrued interest thereon
towards repayment of the loan advanced by the
Plaintiff to the Defendant. There will be no order as
to costs. Refund of court fees in accordance with
applicable Rules.
Para 5. Drawing up a decree is dispensed with.
Prothonotary and Senior Master to allow the
Plaintiff to withdraw the amount deposited in
court, which is presently lying in fixed deposit/s of
Nationalized Bank/s, together with accrued interest
thereon till the date of withdrawal of such deposit.
Para 6. This order has been passed in the
presence of the Plaintiff, who has joined the VC
link.
Para 7. In view of the disposal of the Suit,
Notice of Motion No. 1953 of 2019 does not survive
and is disposed of.
(Italics supplied)
7. From the above operative portion of the judgment, it is
evident that Sudarshan had to pay Rs.61 lakhs to Rajesh. And
that amount had been deposited when the suit was pending.
8. As a matter of further development, on 12.05.2021, in
this disposed of suit, Subhash filed this intervention application.
He pleads that he contributed a part of the consideration for the
contract and, therefore, he is entitled to a proportionate decretal
amount. For the record, we may extract the reliefs Subhash
sought in the intervention application. They are these:
(a) That this Hon'ble Court be pleased to pass an order
thereby allowing the applicant to intervene and further
add the applicant as a necessary party-Defendant No. 2 in
Suit No. 2700 of 2011 as the applicant is the affected
party;
(b) That the Plaintiff be restrained from withdrawing
the entire amount deposited by the Defendant in the office
of Prothonotary and Senior Master pursuant to the order
passed by this Hon’ble Court on 23rd July 2014 in the
Notice of Motion No. 3464 of 2011 from the office
Prothonotary and Senior Master;
In the alternative;
That in the event the Plaintiff has already withdrawn the
said entire amount, the Plaintiff be directed to deposit the
entire amount with the office of Ld. Prothonotary and
Senior Master.
(c) That this Hon’ble Court be pleased to pass an order
thereby directing the Ld. Prothonotary and Senior Master
to pay the amount of Rs. 37,53,818/- along with interest
accrued thereon to the Applicant in proportion as recorded
in the Order dated 23rd July 2014 in the Notice of Motion
In the alternative;
That the Hon’ble Court be pleased to pass an order thereby
restoring the present Suit No. 2700 of 2011 to its original
file and the present suit be heard on its own merits.
That the Hon’ble Court be pleased to direct the office of Ld.
Prothonotary and Senior Master to deposit Rs. 61 Lacs with
accrued interest thereon in the Fixed Deposit as directed by
this Hon’ble Court by its Order dated 23rd July 2014 till
disposal of this present suit.
(d) Pending the hearing and final disposal of this interim
application, the Plaintiff be restrained from withdrawing
the entire amount from the office of Prothonotary and
Senior Master;
(e) Pending the hearing and final disposal of this interim
application the office of Ld. Prothonotary and Senior
Master be directed to pay the amount of Rs. 37,53,818/-
along with interest accrued thereon to the Applicant in
proportion as recorded in the Order dated 23rd July 2014
in the Notice of Motion No. 3464 of 2011.
(f) Interim and ad-interim reliefs in terms of prayer
clause (c) above;
(g) Cost of this Application.
(italics supplied)
9. When Subhash filed the intervention application, soon
after that, on 24.05.2021, Rajesh applied to this Court for its
leave to withdraw the decretal amount—the amount Sudarshan
earlier deposited.
10. On 18.05.2021, this Court passed an interim order,
first, doubting whether this intervention application is
maintainable? Second, the Court has required both the parties to
file pleadings to establish their rival contentions. It wanted, of
course, to rule on whether Subhash is entitled to any relief.
11. After filing an additional affidavit setting out the
details of the payments he made, Subhash insists that the
application be allowed.
Arguments:
Applicant:
12. Shri Sanjiv Sawant, the learned counsel for Subhash,
submits that all along Subhash pursued the case, though as a
POA. According to him, Rajesh has been staying in the U.S.A.
That apart, he also asserts that Subhash contributed a
substantial part of the sale consideration—to be precise, Rs. 16
lakh in 2006. But Subhash has not averred in the plaint to that
effect, nor has he insisted on his being a co-plaintiff. It was only
because the brothers, then, had a cordial relationship, and
Subhash was pursuing the case to benefit both brothers—though
in the name of his elder brother.
13. To elaborate, Shri Sawant submits that the relationship
between the brothers got strained in or about 2014, and Rajesh
eventually cancelled the power of attorney in 2017. Though
Rajesh has filed a summary suit against Subhash before the City
Civil Court, and it is still pending, that suit, however, has
nothing to do with the dispute on hand.
14. Shri Sawant emphasises that on 16.04.2012, this Court
did observe in its docket proceedings that both the brothers
contributed the sale consideration. So, it is beyond any pale of
controversy that Subhash has a stake in the decretal amount.
That accepted, if the Court allows Rajesh to withdraw the entire
decretal amount, it prejudices Subhash. In this context, Shri
Sawant insists that Rajesh has played fraud on Subhash. With
that, the whole judicial proceedings stand vitiated. So no
procedural limitations can come in the way of this Court’s
allowing the interlocutory application. That, in fact, serves the
cause of justice.
Respondent/Plaintiff:
15. On the other hand, Shri Chandrakant Chavan, the
learned counsel for Rajesh, strenuously denies Subhash's
assertion. According to him, Rajesh contributed the entire sale
consideration, and, therefore, he alone sued. Subhash
representing Rajesh as his POA is of no consequence. Shri
Chavan also submits that though Rajesh filed Summary Suit No.
1273 of 2016 before the City Civil Court for recovering about
Rs.80 lakh, to this day Subhash, as the defendant, has not set up
any defence of setting off, adjustment, or counterclaim. Nor has
he pleaded that Rajesh owed him money because he contributed
a part of the sale consideration.
16. About this Court's incidental observation, as the
learned counsel puts it, whether Subhash has contributed any
part of the sale consideration, Shri Chavan points out that it was
a prima facie observation way back in 2012, and that was,
perhaps, at Subhash's behest, for he had been prosecuting the
case as a POA in his brother’s absence. In other words, Shri
Chavan contends that the Court’s observations, if any, with no
foundation in the pleadings—and falling beyond the scope of
the very suit—do not help Subhash. Therefore, he urges this
Court to dismiss the intervention application.
Second Respondent/Defendant:
17. Of course, Mrs. Bhandari, the learned counsel for the
defendant, who too joined the issue, has contended that there
had never been an agreement for sale. According to her, it was
only a money transaction. To the same effect is the decree, too.
That said, we need not revisit that controversy. The suit has
already been disposed of—rather decreed in Rajesh’s favour.
18. Heard, Shri Sanjiv Sawant, the learned counsel for the
applicant, Shri Chandrakant Chavan, the learned counsel for the
respondent-plaintiff, Mrs. Sukeshi Bhandari, the learned counsel
for the respondent-defendant.
Discussion:
19. Indeed, Courts have often held that procedural laws
are handmaid of justice. The function of adjective law is to
facilitate justice and further its ends. The rules of procedure are
intended to be a handmaid to the administration of justice.
Therefore, they must be construed liberally and in such a
manner as to render the enforcement of substantive rights
effective. A ‘hypertechnical view’ should not be adopted by the
court in interpreting procedural laws. A party cannot be refused
just relief merely because of some mistake, negligence,
inadvertence, or even infraction of the rules of procedure. ‘Rules
of pleadings’ are intended as aids for a fair trial and for reaching
a just decision. An action at law should not be equated with the
game of chess. Provisions of law are not mere formulae to be
observed as rituals. Beneath the words of a provision of law,
generally speaking, there lies a juristic principle. It is the duty of
the court to ascertain that principle and implement it. Our laws
of procedure are based on the principle that as far as possible,
no proceeding in a court of law should be allowed to be
defeated on mere technicalities. The Code of Civil Procedure,
therefore, must be interpreted in a manner to subserve and
advance the cause of justice[1].
20. Let us put the icing on the cake. In his inimitable
rhetorical flourish, Krishna Iyer, J, observed in State of Punjab v.
Shamlal Murari thus:
“We must always remember that processual law is not to
be a tyrant but a servant, not an obstruction but an aid to
justice. It has been wisely observed that procedural
prescriptions or the handmaid and not the mistress, a
lubricant, not the resistant in the administration of
Justice. Where the non-compliance, the procedural, will
thwart fair hearing or prejudice doing of justice to parties,
the rule is mandatory. But, grammar apart, if the breach
can be corrected without injury to adjust disposal of the
case, we should not enthrone a regulatory requirement
into a dominant desideratum. After all, courts are to do
justice, not to wreck this product of technicalities.”
(italics supplied)
1 C. K. Thakker’s Code of Civil Procedure, Vol. I, EBC,
p.200 (EBC Reader)
4. IA (L) 11624 of 2021.odt
21. That said, we may, metaphorically, liken the procedural
parameters to traffic rules on the road to justice. The better they
are observed, the safer the vehicle of justice travels. True,
occasional infraction is not fatal; in fact, that infraction is
inevitable and, perhaps, necessary. Granted, an ambulance may
jump the signal, but not a picnic van. With no other way left, a
litigant may insist that the way he chose is the only way—and
that he must have his way. On the contrary, a party cannot
abandon a highway, reach a cul de sac or a blind alley, and insist
that he should have his way.
22. Here, I will avoid a ‘hyper-technical view’ and try to
adopt a pragmatic approach. Then, can I aid the applicant? I am
afraid, not.
23. First, there is no lis before the Court for it to entertain
an interlocutory application. Thus, the Court is proverbially
functus officio. Nevertheless, Subhash wants the Court to revive
and resurrect a disposed of suit. To have that revival or
resurrection, first we must set aside the decree that has already
been passed. Subhash has not sought that relief. Let us assume
that the Court is willing to travel beyond the pleadings and the
prayer, too, to meet the ends of justice.
24. Then, the question is, can the Court adopt such a
course in an application for intervention, as it is termed? It
cannot. A decree can be set aside under Order 9, Rule 13 CPC.
But, as the Supreme Court has held in Ram Prakash Agarwal v.
4. IA (L) 11624 of 2021.odt
Gopi Krishna[2], the applicant must have been a party to the
suit, in the first place. Of course, the Apex Court has taken a
different view in Raj Kumar v. Sardari Lal,[3] but that was in the
context of a lis pendens purchaser. Another interlocutory
method for setting aside a decree is under Order 37, Rule 4 CPC.
But that must be in a summary suit and the party must be the
defendant.
25. The next permissible method for having a decree set
aside is review under Order 47, read with Section 114, of the
Code of Civil Procedure. Nor can this Court exercise its inherent
powers under Section 151 of CPC once the party has a specific
provision in the Code to meet his needs.
26. As I have already noted, Subhash has a highway or a
thoroughfare to travel on if ever he wants to reach his judicial
destination: a separate suit, seeking a declaration. Its
permissibility or its sustainability is not the subject matter here.
We are only talking remedially.
27. Now, let us deal with the issue from another
perspective. Essentially, the suit is in a contractual dispute. And
that dispute concerns the parties to the contract. In a suit for
specific performance, whatever be its outcome, no third party
can have the role to play. Let us check the precedential position
on this point. In E. Ajay Kumar v. Smt Tulsabai,[4] this Court has
2 (2013) 11 SCC 296
3 (2004) 2 SCC 601
4 AIR 1973 Bom. 330
4. IA (L) 11624 of 2021.odt
held that by very nature, a suit for specific performance confines
itself to the agreement and several pleas that can either defeat
or lead to its enforcement. The cause of action in such a suit is
the agreement and its enforceability. In paragraph 20 of the
judgment, E. Ajay Kumar has viewed the issue from another
angle. It posed unto itself a question: Can it really be said that
the stranger to an agreement is concerned with the relief sought
by the plaintiff or the defences raised against such specific
performance? In answer, it has held that, first, the stranger not
being a party to the suit, any decision in that suit does not affect
him. Therefore, he suffers no prejudice. Second, the Court is
being called upon to enforce the agreement but not to settle any
disputes between the plaintiff and the stranger. So, the presence
of such a person is not necessary for the Court to decide the
controversy in the suit.
28. To sum up, in a suit for specific performance, a third
party’s assertion that he has a stake in the subject matter of the
suit counts to noting. What matters is the contract, not the
property covered by the contract.
29. In 1945, the High Court of Calcutta in Prem Sukh
Gulgulia v. Babib Ullah, AIR 1945 Cal 355 has held that the necessary parties in
a suit for specific performance of a contract for sale are the
parties to the contract. If they are dead, their legal
representatives will have the standing. Of course, a person who
has purchased the property from the vendor after the contract is
also a necessary party as he would be affected. But a person who
claims adversely to the vendor is, however, not a necessary party.
According to Prem Sukh Gulgulia, this is on the principle that
the scope of a suit for specific performance of a contract for sale
ought not to be enlarged and turned into a title suit between
one of the parties to the contract and a stranger.
30. In Panne Khushali v. Jeewanlal Mathoo Khatik,[6] a
Full Bench of the High Court of Madhya Pradesh has held that
strangers to the contract making a claim adverse to the title of
the defendant—for example, that they are the co-owners of the
contracted property—are neither necessary nor proper parties.
So they are not entitled to be joined as parties to the suit. Parties
should not be added so as to convert a suit of one character into
that of a different character. And, later, the High Court of Delhi
has echoed the same view in Raj K. Mehra v. Mrs. Anjali
Bhaduri.[7]
31. In Razia Begum v. Anwar Begum,[8] the Supreme
Court has held that if the plaintiff, even after notice of claim of
title hostile to his vendor by an intervener, does not want to join
the intervener, he takes the risk. He cannot be forced upon to
join the intervener. That is, in a suit for specific performance of a
contract for sale regarding a property, some other person who
applies for being impleaded as a party on the ground he has a
6 AIR 1976 MP 148
7 AIR 1981 Del 237
8 AIR 1958 SC 886
right by birth in the suit property cannot be joined as a party. It
is so because if such a person could intervene as a party, the
nature of the suit would change from a suit for specific
performance of a contract to that of a suit for the title.
32. Keeping in view the above precedential position, let us
examine the issue: (1) The agreement was between Rajesh and
Sudarshan. (2) From the very inception, Subhash represented
Rajesh as his POA in the suit; thus, he knew his brother’s
pleadings and assertions to the exclusion of everyone else. (3)
Despite that, Subhash never objected to his principal’s (Rajesh’s)
contentions. (4) Though Rajesh, as the principal, cancelled GPA
in 2017, Subhash never attempted, if ever permissible, to come
on record as a defendant to protect his independent interest, if
any. (5) The suit was eventually decreed in 2001. (6) Sudarshan
willingly suffered the decree and deposited the amount to be
appropriated by Rajesh alone.
33. Thus, if Sudarshan had received the consideration
from Rajesh and Subhash and treated both as his counterparts to
the contract, his satisfying Rajesh’s decree would not discharge
him from his alleged obligation to Subhash. (8) Evidently,
Sudarshan has not viewed it so; in fact, he seems willing to risk
a claim from Subhash by fulfilling Rajesh’s claim alone.
34. Put it differently, if Subhash contributed to the sale
consideration at Rajesh’s behest, he would have his claim
against Rajesh intact, subject to limitation though. On the
contrary, if he has contributed directly to Sudarshan and wanted
him to treat both the brothers as co-purchasers, Subhash may
have his remedy against Sudarshan open. Thus, the suit between
Rajesh and Sudarshan does not affect him. I may, at this
juncture, stress that these are polemical propositions but not the
Court’s considered views, much less conclusions having any
judicial imprimatur.
35. Now, let us deal with a collateral issue. Subhash insists
that this Court, in its order dated 16.04.2012, noted that
Subhas, too, contributed to the sale consideration. In this
context, I may note that to facilitate adjudication of the matter,
procedurally the Court undertakes various steps. And in that
process, it may prima facie observe or record certain aspects
based on the counsel’s representations. They are sans pleadings
and sans evidence. Such observations do acknowledge the
parties existing rights if any, but they do not create rights on
their own. A Court’s observation cannot give rise to a right
unless it has already existed, nor does it provide a cause of
action. Here, in this case it had never been in the Court’s
contemplation as to who contributed the sale consideration. It is
a non sequitur.
36. Here, the plaintiff sued and had the decree. Thus, he is
entitled to the decretal amount. When he wanted to withdraw
that amount, somebody else objects. That somebody maybe his
brother or his erstwhile agent. However strong that person's
right to recovery maybe, he cannot file an intervention
application in an already disposed of matter and stay the
4. IA (L) 11624 of 2021.odt
execution of the decree or nullify the decree without proper
judicial recourse.
37. After all is said and done, here comes the palliative. If
Subhash has an enforceable claim against either Rajesh or
Sudarshan, the above suit does not defeat his rights. Much less
do these observations affect Subhash’s supposed rights.
38. Under these circumstances, I express my inability to
entertain this application despite diligent efforts made by Shri
Savant, the applicant’s counsel. I, therefore, dismiss it.
39. Shri Savant, at this juncture, wants this Court to
restrain the respondent-plaintiff from withdrawing the decretal
amount for at least eight weeks, so the applicant could explore
his remedial options. The Respondent's counsel, of course,
strongly opposes this plea.
As the intervention application in a disposed of suit has
been summarily rejected, I see no justification for the Court to
grant such relief as the applicant sought. The request stands
rejected.
[DAMA SESHADRI NAIDU, J.]
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