1. Heard Sri Shashi Nandan, learned senior Advocate, assisted by Sri Madhav Jain, learned counsel for the revisionist and Sri Anil Tiwari, assisted by Sri Asim Kumar Singh, learned counsel for the respondent no.1.
2. Briefly stated the facts of the present case are that Sri Komal Singh son of late Sri Kundan Singh, Ramesh Chandra, Chandrapal sons of Sri Komal Singh residents of village- Dhetora, Agra and Sri Kunwar Pal son of late Sri Kundan Singh, Deepchnadra, Shanker Singh, Hakim Singh, sons of Sri Kunwar Pal residents of village Dhetora, Agra were owners of agricultural plot No(s).192,195,197,198/1 and 199 M of village Mohammadpur, Tehsil and District Agra.
3. The aforesaid two sets of persons have separately sold an area of 2.9857 hectares vide registered sale deed dated 23.9.2011 and an area of 1.8440 hectares vide registered sale deed dated 1.5.2012 respectively to one Sri Subodh Kumar. Out of this total area of 4.8297 hectares, Sri Subodh Kumar sold an area of 2.3040 hectares to the revisionist vide registered sale deed dated 4.2.2013 and entered into a registered agreement dated 30.4.2012 with the plaintiff-respondent No.1 for an area of two bighas. In the sale deed dated 4.2.2013, the plaintiff respondent no.1 was one of the witness. It was mentioned in the aforesaid deed dated 4.2.2013 that sale deed of the remaining area of the land out of total area of 4.8297 hectares shall be executed in favour of the revisionists as per his convenience within one year.
4. Subsequently, a suit for specific performance being O.S. No.1467/2014 Hakim Singh Yadav Vs. Subodh Kumar was filed by the plaintiff respondent no.1 against respondent no.2 for specific performance of the registered agreement to sale dated 30.4.2012.
5. In this suit the revisionist filed an application for impleadment as necessary party under Order 1 Rule 10 of C.P.C. in the Court of Additional District Judge, Court No.13, Agra who rejected the application by the impugned order dated 31.10.2015 on the ground that the revisionist is not a necessary party inasmuch as at the time of contract/agreement between the plaintiff-respondent no.1 and the defendant-respondent no.2 he was not in existence.
6. Aggrieved with this order the revisionist has filed the present revision.
Submission of the Revisionist
7. Sri Shashi Nandan submits that since in the sale deed dated 4.2.2013 plaintiff-respondent was a witness in which it was clearly stated that the remaining portion of the property out of total area of 4.8297 hectares shall be sold by executing a sale deed in favour of the revisionist as per his convenience within one year and as such at least some kind of right over the property in favour of the plaintiff, has accrued to the revisionist and as such he is a necessary party in the suit of specific performance in which relief has been sought by the plaintiff-respondent no.1 that sale deed of the disputed property be executed by the defendant-respondent no.2 in his favour. He submits that under the facts and circumstances of the case revisionist is a necessary party in the suit and as such he should have been impleaded as defendant. The impugned order rejecting the impleadment application is fully arbitrary and illegal. In support of his submission he relied upon the decision of Hon'ble Supreme Court in the case of Baluram Vs. Chellathangam and others AIR 2015 SC 1264 Para 14.
Submission of the Plaintiff Respondent No.1
8. Sri Anil Tiwari, learned counsel for the plaintiff-respondent no.1 submits that the sale deed on the basis of which the revisionist is claiming his some kind of right over the disputed property is void in view of the provisions of Section 25 of the Indian Contract Act for reason that no consideration is mentioned for the promise made. He submits that the promise incorporated in the sale deed dated 4.2.2013 does not fall within any of the exceptions of Section 25 of the Indian Contract Act and, therefore, such an agreement is void. He submits that it is the sole discretion of the plaintiff to implead or not to implead a person as a party in the suit and in case he has not impleaded a necessary party in the suit, his suit may either be dismissed for non impleadment of necessary party or even if it is decreed the decree shall not be a binding on a person who is not a party to the suit. He, therefore, submits that in these circumstances, neither any right of the revisionist stands affected at this stage nor he has any right to be impleaded as a defendant in the suit of the present plaintiff-respondent no.1.
9. He relied upon the judgment of Hon'ble Supreme Court in the case of Kasturi Vs. Iyyamperumal and others AIR 2005 SC 2813(1) para 20 wherein it has been held that in a suit for specific performance of a contract for sale, even after receiving notice for a claim of title and possession from a person, if the plaintiff does not want to join him as respondent in the pending suit he does so at his own risk and he can not be forced to join such person as defendant.
10. In support of his submission he also relied upon the decisions of Hon'ble Supreme Court in the case of Raheja Universal Limited vs Nrc Limited And Ors 2012 4 SCC 148, Mumbai International Airport Pvt. Ltd. vs Regency Convention Centre & Hotels Pvt. Ltd. & Ors. 2010 (7 ) SCC 417, Ramesh Chandra Pattnaik vs Pushpendra Kumari & Anr 2008 10 SCC 708 and Anil Kumar Singh vs Shivnath Mishra And Gadasa Guru JT 1995 (1) SC 273.
Submission of the Revisionist in Rejoider
11. Replying to the aforenoted submissions of Sri Tiwari, Sri Shashi Nandan submits that since the plaintiff was a witness to the sale deed dated 4.2.2013 executed by the defendant-respondent no.2 in favour of the revisionist in which there is a clear condition as indicated above and as such the revisionist has some kind of right or interest with respect to the disputed property and since the suit for specific performance has been filed for executing sale deed by the defendant respondent no.2 in favour of the plaintiff and as such the rights of the revisionist would be seriously jeopardized in case he is not made party in the suit. He submits that the decision of Hon'ble Supreme Court relied upon by learned counsel for the plaintiff-respondent no.1 are distinguishable on the facts of the present case and the same are no help to him.
Discussion and findings
12. I have carefully considered the submissions of the learned counsel for the parties.
13. It is wholly undisputed that one Sri Subodh Kumar had purchased the entire area of agriculture plot no(s). 192,195,197,198/1 and 199 M of Village Mohammadpur, Tehsil and District Agra by way of registered sale deed dated 23.9.2011 for an area of 2.9857 hectares and registered sale deed dated 1.5.2012 for an area of 1.8440 hectares. Out of this total area of 4.8297 hectares he entered into a registered agreement to sale dated 30.4.2012 with the plaintiff-respondent No.1 for an area of two bighas. Subsequent to this he sold an area of 2.3040 hectares to the revisionst by registered sale deed dated 4.2.2013 with the stipulation in the sale deed itself that the entire area of the aforesaid entire plots i.e. 4.8297 hectares less the vended area of 2.3040 hectares shall be sold by executing a sale deed in favour of the revisionist as per his convenience within one year. In this sale deed dated 4.2.2013 the plaintiff respondent no.1 was one of the witnesses. Subsequently, the plaintiff-respondent No.1 filed O.S. No.1467/2014 for specific performance of the agreement dated 30.4.2012 against Sri Subodh Kumar (respondent no.2) in which the revisionist moved an application under Order 1 Rule 10 C.P.C. for impleadment as defendant being a necessary party. By the impugned order dated 31.10.2015 the said impleadment application was rejected on the ground that the revisionist is not a proper and necessary party inasmuch as at the time of contract/agreement between the plaintiff respondent no.1 and the defendant-respondent no.2, he was not in existence. In other words, the court below was of the opinion that since the registered agreement was executed prior to the sale deed dated 4.2.2013 and thus at that time revisionist was not in existence and as such he is not a necessary party.
14. Aggrieved with this order dated 31.10.2015 passed by the Court of Additional District District Judge, Court No.13, Agra, the revisionist has filed the present revision under Section 115 of the Code of Civil Procedure Code.
15. Thus the sole question that arise for consideration in this revision is :
"Whether under the facts and circumstances of the case the revisionist is a necessary party in O.S. No.1467/2014 filed by the plaintiff respondent no.1"?
16. The provision relevant for the purposes of the controversy involved is Order 1 Rule 10 C.P.C. which provides 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 bone 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.
(4) Where defendant added, plaint to be amended--Where a defendant is added, the plaint shall, unless the court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the court thinks fit, on the original defendant.
(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.
17. Sub Rule 2 of order 1 Rule 10 provides that 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 joind, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have joind 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.
18. It is not disputed between the parties that the sale deed dated 4.2.2013, in which the plaintiff respondent no.1 was a witness, contains a clause that the "remaining area" of plot no. 142,145,197,198/1 and 199 M of Village Mohammadpur, Tehsil and District Agra shall be sold by executing a sale deed within a year in favour of the revisionist. The land which is subject matter of the registered agreement executed by the respondent no.2 in favour of the plaintiff respondent no.1 on a prior date i.e. 30.4.2012 is included in the "remaining area". The suit for specific performance has been filed by the plaintiff-respondent no.1 for execution of sale deed in his favour by the respondent No.2 pursuant to the said agreement dated 30.4.2012 while the revisionist claims that the area in respect of which suit has been filed is liable to be transferred by sale to him by the respondent no.2 in respect of pursuance to a contract of a subsequent date in which the plaintiff-respondent no.1 himself was a witness.
19. Thus plaintiff respondent no.1 has filed a suit in question for execution of sale deed in his favour by the respondent no.2 in respect of the same property over which the revisionist is claiming his right for execution of sale deed by the respondent no.2 in his favour. Thus, the subject matter of right being claimed by the revisionist and the plaintiff respondent no.1 by execution of sale deed by the respondent no.2 is in respect of one and the same property.
20. The respondent no.2 is required to execute a sale deed of the disputed property either in favour of the revisionist or the plaintiff-respondent no.1. He can not execute two sale deeds in respect of the disputed property, one in favour of the revisionst and the other in favour of the respondent no.1. Thus, the controversy involved in the suit in question for specific performance is in respect of one and the same property. This shall give rise to a further question as to whether the respondent no.2 is liable to execute sale deed in respect of the suit property in favour of the plaintiff-respondent no.1 or that by a subsequent contract the right of the plaintiff respondent no.1 for execution of sale deed in his favour does not survive and certain right/interest in favour of the revisionist stood created by a subsequent contract and, therefore, the presence of the revisionst before the court may be necessary in order to enable the court to adjudicate effectively and completely and to settle all the questions involved in the suit. The controversy involved is intimately linked with the entitlement of the revisionist and the plaintiff-respondent No.1. for rights/interest over the disputed property and for this reason also the presence of revisionist is necessary in the suit before the Court.
21. For the aforesaid reasons it can not be said that the revisionist is not required to be heard in the suit. In view of these facts, revisionist is likely to be affected on account of judgment and decree in the suit in question. The argument of learned counsel for the plaintiff-respondent No.1, that the conract is void, can not be gone into at the stage of consideration of the impleadment application but the same can be decided by framing issues and adjudication thereof on the basis of facts of the case and evidences which may be led by the parties. Thus, considering the facts and circumstances of the case as briefly noted above, I find that the revisionist is a necessary party in the suit and, therefore, rejection of impleadment application by the impugned order is wholly erroneous and, consequently, the impugned order deserves to be set aside.
22. In the case of National Insurance Co. Ltd. vs Mam Chand & Anr. (2007) 3 SCC 691 Hon'ble Supreme Court held that where a question is intimately linked with the entitlement to receive the amount from the appellant then it cannot be said that he is not required to be heard.
23. In the case of Udit Narain Singh Malpaharia Vs.Additional Member, Board of Revenue, Bihar, 1963,Supplement (1) SCR 676 : AIR 1963 SC 786 (para 9 and 10), Hon'ble Supreme Court observed that a party whose right is directly affected, is the necessary party. A proper party is one whose presence is not necessary for making an effective order, but whose presence may facilitate the settling of all the questions that may be involved in the controversy.
24. The principles laid down in the aforesaid judgment has been reiterated in large number of decisions by Hon'ble Supreme Court including the judgment in the case of State of Assam v. Union of India, (2010) 10 SCC 408.
25. The general rule, as argued by learned counsel for the plaintiff-respondent No.1; with regard to impleadment of parties that the plaintiff in a suit, being dominus litis, may choose the presence against him he wishes to litigate and can not be compelled to sue a person against him he does not seek any relief and consequently a person who is not a party has no right to be impleaded against the wishes of the plaintiff; is subject to the provisions of order I Rule 10(2) C.P.C. by which a discretion has been given to the Court to add any person as a party in a suit who is found to be necessary party or a proper party.
26. The plaintiff-respondent No.1 has heavily relied upon the decision of Hon'ble Supreme Court in the case of Mumbai International Airport Pvt. Ltd. (supra) and the judgment of Kasturi (supra).
27. In the case of Mumbai International Airport Pvt. Ltd. (supra) Hon'ble Supreme Court laid down the same principles of necessary or proper party and held in para 26 as under:
"If the principles relating to impleadment are kept in view, then the purported divergence in the two decisions will be found to be non- existent. The observations in Kasturi Vs. Iyyamperumal (2005) 6 SCC 733 and Sumtibai Vs. Paras Finance Co. (2007) 10 SCC 82 are with reference to the facts and circumstances of the respective case. In Kasturi (supra), this Court held that in suits for specific performance, only the parties to the contract or any legal representative of a party to the contract, or a transferee from a party to the contract are necessary parties. In Sumtibai, this Court held that a person having semblance of a title can be considered as a proper party. Sumtibai (supra) did not lay down any proposition that anyone claiming to have any semblance of title is a necessary party. Nor did Kasturi (supra) lay down that no one, other than the parties to the contract and their legal representatives/transferees, can be impleaded even as a proper party."
(emphasis supplied by me)
28. In the case of Raheja Universal Limited (supra) Hon'ble Supreme Court considered the provisions of sick industries Company (Special Provision) Act 1985 and the Transfer of Property Act 1882 and held as under :
"105. Suffices it to note that memorandum of understanding and the agreement to sell the land belonging to the company between the appellant and the respondent company was signed prior to the presentation of the scheme before the BIFR. However, the second supplementary agreement was executed not only subsequent to the presentation of the scheme before the BIFR but even after the BIFR had passed an order under Section 17(3) of SICA of 1985. It cannot be disputed that even the sale proceeds received under the agreements have been utilized for the revival of the company to a large extent. The agreement with the workers dated 5.9.2008 stands testimony to this fact. Once the asset of the company and/or its sale proceeds have been integral part of the formation and finalization of the revival scheme, such transaction by any stretch of imagination cannot be stated to be beyond the ambit and scope of Section 22(3) of the Act of 1985. Thus BIFR has the power to issue declarations in relation to contracts, agreements, settlements, awards, standing orders or even other instruments in force to which the sick industrial company is a party. The power to suspend or power to enforce the same subject to such adaptations as BIFR may consider appropriate is a power of great magnitude and scope, the only restriction thereupon is as contemplated in the proviso to Section 22(3) of SICA 1985.
106. The provisions of Section 53A of TPA 1882 Act recognize a right of a transferee, where a transferor has given and the transferee has taken possession of the property or any part thereof. Even this provision does not create title of the transferee in the property in question but gives him a very limited right, that too, subject to the satisfaction of the conditions as stated in Section 53-A of TPA 1882 itself.
108. Thus, even if the part-performance of the agreement is accepted, still no title is created in favour of the Respondent Company. Provisions of Section 53-A would also not, in any way, alter the position of the Act SICA of 1985 having an overriding effect vis-à-vis the provisions of TPA 1882. We have already held that the provisions of Act of 1985 shall have precedence and overriding effect over the provisions of the Act of 1882.
109. This brings us to the last and final question arising for consideration of this Court in the present case, that is, whether in the facts and circumstances of the case, the BIFR had the jurisdiction to issue a direction or make a declaration in relation to the agreement in question in exercise of the powers vested in it under Section 22(3) of SICA 1985 and, if the answer to the above is in the affirmative, whether the order dated 16.7.2009 of BIFR and that of the High Court dated 29.7.2011 are unsustainable on facts?
113. We find no jurisdictional or other error in the order of the High Court in restoring the order of the BIFR. The land being the primary asset of the Respondent Company, could not be permitted to be dissolved by sale or otherwise without the consent and approval of the BIFR. The BIFR is the authority proprio vigore and required to oversee the entire affairs of a sick industrial company and to ensure that the same are within the framework of the scheme formulated and approved by the Board for revival of the company in accordance with the provisions of SICA 1985.
114. On facts as well, neither the BIFR nor the High Court had exceeded its jurisdiction in passing the impugned orders. It is not that the Respondent Company has been divested of its right by the BIFR. All that has been done is to suspend the final transfer of the property in its favour in accordance with the provisions of the Act and the limitations imposed therein. Once the scheme is implemented or the period specified under the provisions of Sections 22(3) and 22(4) expires, the declaration would cease to exist and the appellant would be entitled to enforce its rights in accordance with law as if no such declaration or restriction ever existed.
115. The principle of law that emerges from the aforereferred discussion, which consistently has judicial benediction, is that a scheme for rehabilitation or restructuring of a sick industrial company undertaken by a specialized body like the BIFR/AAIFR should, as far as legally permissible, remain obstruction free and the events should take place as preordained, during consideration and successful implementation of the formulated scheme. Wide jurisdiction is vested in BIFR/AAIFR to issue directives, declarations and prohibitory orders within the rationalized scope and limitations prescribed under Section 22(1), 22(3) and 22-A of the Act of 1985."
29. Thus the aforesaid judgment in the case of Raheja Universal Limited (supra) is of no help to the plaintiff-respondent No.1 on the facts of the present case.
30. The next judgment in the case of Bharat Karsondas Thakkar Vs. Kiran Construction Company and others (2008) 13 SCC 658 and the judgment in the case of Ramesh Chandra Pattnaik (supra) relied by learned counsel for the plaintiff-respondent No.1 are also distinguishable on facts inasmuch as the controversy involved in those cases were entirely different.
31. The next judgment in the case of Anil Kumar Singh(supra) is also of no help to the plaintiff-respondent No.1 inasmuch as the controversy involved in that case was whether the person who has got his interest in the property declared by an independent decree but not of property to the agreement to sale is a necessary and a proper party for effectuate and complete adjudication and settling all the questions involved in the suit.
32. In the latest decision of Hon'ble Supreme Court in the case of Baluram(supra) question of impleadment of beneficiaries of the trust property in a suit filed for specific performance of agreement to sale the suit property executed by the trustees was involved and it was held that the appellant i.e. beneficiaries were not stranger but a necessary party to the suit as defendant.
33. In view of the above discussions, the impugned order passed by the Court of Additional District and Session Judge, Court No.13, Agra, dated 31.10.2015 in O.S. No.1467 of 2014 rejecting impleadment application of the revisionist (paper no.32 C) can not be sustained and is hereby set aside. The court concerned is directed to dispose of the impleadment application afresh, in accordance with law in the light of the observations made above.
34. In result, the revision succeeds and is hereby allowed to the extent indicated above.
Order Date :- 7.1.2016/vkg