1. Heard Sri Anoop Trivedi, learned counsel for the revisionist and Sri Gajendra Pratap Singh, learned Senior Advocate assisted by Sri S.C. Pandey, Advocate for respondent nos. 1 and 2.
2. This revision has been preferred under Section 115 CPC against an order dated 27.5.2011 passed by Civil Judge (S.D.), Allahabad on application no. 29-Ga in original suit no. 499 of 2009 (Savitri Singh Vs. Kamla Jha). By means of the impugned order, the trial court has allowed certain amendment in the plaint and has also impleaded certain persons as defendants including the present revisionist namely "Amar Nath Shroff".
3. Sri Anoop Trivedi, learned counsel for the revisionist contended that entire suit filed by the plaintiffs- respondents was wholly a gross abuse of process of law inasmuch as the plaintiffs-respondents launched litigation on various occasions upto the Apex Court and had relied on certain compromise decree which has been allegedly in force and in respect of same, an application was also filed by the revisionist which is pending for final orders. The revisionist is neither necessary nor proper party in the matter, therefore the impugned order could not have been passed. He placed reliance on a judgment of Apex Court in Kasturi Vs. Iyyamperumal and others (2005) 6 Supreme Court Cases 733.
4. Sri Gajendra Pratap Singh, learned Senior counsel for the respondents submitted that revisionist himself has admitted in his objections that he owned the property which was subject matter of dispute in the original suit and in view thereof he was necessary and proper party and has rightly been impleaded by the court below. So far as the question, whether the suit itself is maintainable or not or has rightly been filed, there is no fraud committed by the plaintiffs- respondents. The questions related to merit of the suit can be contested by a person who is a party to the suit and therefore all these pleas would be available to the defendant revisionist after he is impleaded and not otherwise. Once a person is impleaded as a party then, he can always raise these pleas but at this stage all these arguments can not be entertained unless revisionist become a party in the original suit. This also justifies his impleadment.
5. Certain facts which are not disputed between the parties are that original suit no. 499 of 2009 was filed by two plaintiffs-respondents namely Smt. Savitri Singh and Sundaram Muraly. There was only one defendant namely Kamla Jha, W/o- Sri Shankar Jha. The plaintiffs sought following reliefs in the suit:
6. It appears that some ad interim injunction was also granted by the court below in the aforesaid suit. During the pendency of the aforesaid suit the plaintiffs-respondents no. 1 and 2 filed an application under order 1 Rule 10 read with order 6 Rule 17 and Section 151 C.P.C. which was registered as an application no. 29G. By this application the plaintiffs- respondents requested court below to allow impleadment of the following defendants in the above suit:
10. A.......................
1. be added and being to name and address of the defendant Smt. Kamla Jha, the name and address of third party be added as under. 2. Mr. Sanjai Jhunjhunwala: Chairman Mani group, 9, IT chamber " Mani Square" 164/1 Mariktalla main Road Kolkata 700054. 3. Mr. Vijay Agarwal, Chairman and Managing Director Sattva Group 4th floor, Sala Purta Hindsorl, Juloor Road, Banglore 56042 Karnataka (India) 4. Mr. Amar Nath Shroff, Chairman diamond Group, 6C/2 Harish Mukherjee Road Kolkata 25. 5. Municipal Corporation Kolkata 5, S.N. Banerjee Road Kolkata P.h. 33) 22862000 through the principal Commissioner presently Arant Roy. 6. That, after para no. 12 of the plaint following para as added.
7. Besides it also sought amendment in the plaint by seeking addition of six paragraphs in the plaint and some consequential amendments with reference to the defendants etc. as a result of impleadment of defendants. Some minor amendment was sought in the relief sought in the plaint so as to cover all the defendants.
8. Notices were issued on the said application. The present revisionist himself filed an objection, copy whereof has been placed in record as Annexure- 6 to the affidavit accompanying stay application. Therein the present revisionist has admitted that he and some others have become owner of the property which is subject matter of dispute in the suit and he is in possession thereof after having duly purchased under the directions and supervision of the Apex Court and Calcutta High Court. It is also stated that the mutation has already taken place regarding name of the objectors and others in respect to the aforesaid property in the municipal records. Thereafter the revisionist on the facts has said that the suit has been filed in a mysterious manner and on wrong facts trying to raise an issue which has become final in several other matters, the documents relied upon, are forged and therefore the suit is liable to be dismissed.
9. The court below after hearing the parties, has passed the impugned order wherein it has been mentioned that so far as the question whether suit is maintainable or not or deserves to be dismissed at this stage, are the questions to be considered on merit. Once application under order 1, Rule 10 is disposed of and the objectors place all the facts before court below in the aforesaid suit, the issues can be considered, decided and not otherwise. At this stage the real moot question is whether the objectors are necessary or proper party in the suit or not. Question regarding maintainability of said cannot be examined at this stage.
10. So far as amendment of the plaint is concerned, it has to be observed that amendment which is likely to change nature of the suit or otherwise may be barred by limitation etc., can only be rejected or not otherwise. For considering amendment in the plaint, the courts have to take lenient view and unless there is any legal or otherwise obstruction amendment generally has to be allowed.
11. Sri Anoop Trivedi, learned counsel for the revisionist has drawn my attention to the documents, to show that the aforesaid suit was filed by the plaintiffs- respondents in a wholly illegal manner and it was gross abuse of process of law. At one stage he also stated that at the bar that objector revisionist is neither necessary nor proper party in the matter inasmuch as he has nothing to do with the property in question involved in the suit. Since property was purchased in the name of the company of which he is the chairman and the company was independent, he has nothing to do in his personal capacity and hence impleadment of the revisionist is illegal. On the contrary I find that there is nothing in the entire revision, the affidavit filed in support of stay application that he is not interested in the property in question. Sri Trivedi could not show any specific document in the affidavit in this regard.
12. This Court on his instance passed order as under:
Heard Sri C.B.Yadav, learned Senior Advocate assisted by Sri Anoop Trivedi for the revisionist and Sri Gajendra Pratap Singh, learned Senior Advocate assisted by Sri S.C.Pandey for respondents No.1 and 2.
Learned counsel for the revisionist, after some arguments, states that revisionist-applicant is neither necessary nor proper party, inasmuch as, property in question in respect whereto suit was filed by defendants No.1 and 2, he has no concern at all and in this regard he intends to file an affidavit of revisionist, for which he seeks time.
As prayed, put up on Monday i.e. 27.06.2011 for further arguments.
13. Today, though second supplementary affidavit has been filed but it does not mention any such fact that the revisionist has no concern with the property in question.
14. Sri Anoop Trivedi, learned counsel admitted and drew my attention to his averments contained in para 11 of the affidavit accompanied with stay application that the plaintiffs respondents are in a habit of instituting vexatious proceedings in different courts at Allahabad including this Hon'ble Court in respect of the properties situate at 42/1,42/A and 42-B, Chaurangi Road, Kolkata, West Bengal. The present proceedings have been initiated by Smt. Kamla Jha, her husband and their associates and agents. He also drew my attention to para 8 of the affidavit that the companies became owners in possession of the aforesaid properties after having duly purchased them under direction, control and supervision of the Hon'ble Supreme Court and Calcutta High Court and relying thereto sought to be argue that the revisionist being Director of the company, can not be said to have any interest in the property in question and therefore, he is neither necessary nor proper party.
15. However I am not impressed by the aforesaid arguments for the reason that his objection before trial court which is plainly stated to be an objection on behalf of Amar Nath Shroff as objector / proposed defendants in para 7 and 9 said openly that:
7. That the answering opposite party/objector and others have become owner in possession of the aforesaid properties after having duly purchased them under direction, control and supervision of the Hon'ble Supreme Court and Calcutta High Court. The objector has acquired perfect right, title and interest in the aforesaid properties and no other person has any concern with the said properties. The confirmation of sale in favour of opposite party nos. 17 to 30 have been reported in AIR 1996 Kolkata page, 279.
9. That the name of the objector and others have already been recorded over the aforesaid property in the relevant municipal records.
16. These averments could not be disputed by the revisionists before this Court.
17. In view of the above, it can not be said that the revisionist has no interest in the property in question and no effective relief can be granted in the suit in absence of revisionist.
18. The judgment of the Hon'ble Apex Court in the case of Kasturi Supra itself has considered the question who is necessary party for determination and therefore two 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. Moreover at the stage of considering application under section 1 Rule 10 CPC, only question involved in the suit has to be considered is whether the amendment is necessary or the proposed person is a proper or necessary party or not and not the controversies that would arise between the parties as a result of issues raised by them. In paragraph 16 of the judgment of the Apex Court observed:
"That apart, from a plain reading of the expression used in sub-rule (2) order 1 Rule 10 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 can not 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 Respondents 2 and 3 and Respondents 1and 4 to 11 on the other."
19. The suit considered by the Apex Court was in respect of specific performance of contract and therefore admittedly in such matters only party against whom specific performance was sought, was the proper party and therefore factual observations in the judgement are in context of the nature of the suit involved therein. The general legal proposition as noticed above clearly shows if, the decree can not be passed effectively in absence of person, he is necessary and proper party in the case. In a suit for declaration in respect of property if a person has no interest or right over the said property, he is neither a necessary nor proper party but if he claims to be the owner of the property or otherwise in possession thereto in his own rights, in his absence effective declaration may not be given and therefore he would be necessary and proper party.
20. In view of the own averments made by the revisionist in his objection that he is the owner of the property, subject matter of suit, it can not be said that he is not a necessary and proper party. Various collateral issues raised by him regarding maintainability of the suit etc. can not be considered at this stage since it is always for a party to raise all such pleas before the trial court and it can also raise objections for rejection of plaint under Order 7 Rule 11 CPC if so advised and if the occasion so arise. At this stage when the court has to consider the question about the one whether necessary and proper party to be impleaded as respondent or not the issues relating to the merits which may result in deciding the suit itself in one or the other manner, can not be considered. Various objections regarding maintainability of suit raised By Sri Trivedi therefore at this stage are not to be adjudicated by this Court.
21. Consequently, Civil Revision fails and is accordingly dismissed.
22. By way of clarification, it is provided that observations, if any, made in this order shall not prejudice the court below in deciding the issue independently in accordance with law.
Sanjeev Date 27.6.2011