1. The applicant has taken out present applications seeking below mentioned relief:-
(A)......
(B) Your Lordships may be pleased to implead the present applicant as a respondent No.4 in Special Civil Application No.6144 of 2012.
(C) .........."
2. Heard Mr. Tushar Mehta, learned Counsel with Mr. Kapadia, learned advocate for the applicant and Mr. N.D. Nanavati, learned Senior Counsel with Mr. A.S. Shah learned advocate for opponent No.1 and Mr. A.J. Patel, learned Counsel for opponent No.2.
3. So as to support and justify the request made in the application i.e. for being impleaded as party respondent in writ petition being SCA No.6144 of 2012 the applicant has urged that it is necessary party being interested in the proceedings so far as writ petition being SCA No.6144 of 2012 and the order impugned therein are concerned.
3.1 The said applicant has also taken out another Civil Application being Civil Application No.5383 of 2012 wherein also similar request i.e. for being impleaded as party respondent in writ petition being SCA No.6145 of 2012 on similar ground, is made.
4. Since the applicant herein and respondent Nos. 1 to 4 are common in both the applications, and the relief prayed for in both the applications are almost similar (except the relevant proceedings in which the applicant wants to be impleaded are different) and since the parent proceedings from which the two petitions and applications have arisen i.e. Arbitration Suit No.43 of 2011 is common, it is considered appropriate to decide the two applications by present common order.
5. The applicant has, inter alia, urged in the applications that the opponent No. 2 bank had issued advertisement on 20.2.2010 inviting bids for the land bearing Survey No.593/1, block No.40, T.P. Scheme 74, admeasuring about 29732 sq. yard. The bank proposed to sell the said property. The applicant has also claimed that it had participated in the auction proceedings in which, upon conclusion of the auction proceedings, the applicant emerged as highest bidder and that therefore the bank decided to accept the applicant's bid for the property in question. It is also claimed that the respondent No.2 bank conveyed the said decision to the applicant vide communication dated 29.3.2010. It appears that after sometime certain proceedings (Arbitration Suit No.43 of 2011) came to be initiated by present opponent No.1 in connection with the above mentioned property. It appears from the record that in the said proceeding certain interlocutory orders came to be passed by Board of Nominees. The respondent bank felt aggrieved by the said orders and that therefore two separate Revision Application (i.e. Revision Application No. 134 of 2011 and Revision Application No.98 of 2011) came to be filed by respondent No.2 - Bank before the learned tribunal. It further appears that learned tribunal has passed orders in the said two Revision Applications, on 18.4.2012. The above mentioned two petitions have been filed against the said two orders, both dated 18.4.2012, passed by the learned tribunal in the said two Revision Applications.
6. The applicant has claimed that its bid has been accepted by respondent no.1 bank and it has made payment of sale consideration and that therefore as auction purchaser of the property in question the petitioner is interested party and that therefore it is entitled to be impleaded as party respondent in the said two petitions.
7. Mr. Mehta, learned Senior Counsel for the applicant has narrated, at length, the details of the events and proceedings which have taken place since the date on which the respondent bank came into possession of the property in question. He has submitted that in view of the document executed in 1941 in favour of respondent No.2 bank, the said bank acquired the title and interest and ownership of the property in question and in exercise of its rights the respondent bank has auction sold the property in question, and the said property has been purchased by it during auction proceeding. The applicant has, however, admitted the fact that until now sale deed has not been executed in its favour. The learned Counsel emphasized that the applicant has paid entire amount of consideration to the respondent bank.
8. So far as opponent No.2 bank is concerned, it has not disputed the factual aspects stated by the applicant, including the fact about the applicant has made the payment of consideration as per the auction term. The bank has also not opposed request by the applicant for being impleaded as party respondent in the said two petitions.
9. However, the opponent No.1 i.e. the petitioner in the said two petitions has vehemently opposed the applications. Mr. Nanavati, learned Senior Counsel appearing for the petitioner submitted that the applicant is neither necessary nor proper party so far as the said two petitions are concerned. He also submitted that the applicant is merely prospective purchaser in whose favour the sale deed has yet not been executed and the title of the property in question has not passed in favour of the applicant. Mr. Nanvati, learned Senior Counsel also submitted that the applicant is not party to the proceedings before the Board of Nominees i.e. where the parent proceedings of Arbitration Suit No.43 of 2011 are pending and the applicant was also not party to the proceedings so far as two Revision Applications i.e. Revision Application No.134 of 2011 and Revision Application No.98 of 2011 are concerned and that therefore in present two petitions which arise from the order passed by the Board of Nominees, the applicant has no right to be impleaded as party respondent. Learned Senior Counsel for opponent No.1 also submitted that the application lacks bonafide and is actuated by malafides. So as to support his submission and to oppose the request of the applicant, learned Senior advocate for opponent No.1 relied on the decision by the Apex Court in case of Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotels Private Limited and others (2010[7] SCC 417).
10. I have considered rival submissions made by learned Senior Counsel appearing for the contesting parties and have also perused the record of the two Civil Applications as well as two writ petitions of which reference has been made hereinabove.
11. Before proceeding further it is relevant to mention that the applicant herein has taken out two writ petitions being SCA No.16615 of 2010 and SCA No.13634 of 2010 and in one of the said two writ petitions the applicant herein has challenged the action of respondent bank of putting the property in question for auction sale after issuing advertisement dated 16.12.2010 and in another writ petition the applicant has prayed for writ of prohibition against the continuation of the proceedings related to the Arbitration Suit No.43 of 2011. Any order of interim relief is yet not passed in favour of present applicant (i.e. the petitioner in said two writ petitions) in the said petitions being SCA No.16615 of 2010 and SCA No.13634 of 2010.
12. It is not in dispute that the applicant herein is not party to the proceedings related to the Arbitration Suit No.43 of 2011. It is also not in dispute that the applicant herein was not party to the proceedings in the said two Revision Applications i.e. Revision Application No.134 of 2011 and Revision Application No.98 of 2011. It is also not in dispute that the applicant has not taken out any application for being impleaded as party opponent (on the ground that it is necessary and interested party) in any of the said proceedings i.e. in the suit and / or in the Revision Applications.
12.1 It is pertinent that before preferring present applications the applicant herein never claimed before the Board of Nominees and / or the learned Tribunal that it is necessary and interested party in the proceedings.
12.2 It is also pertinent that the applicant on its own has not taken out any proceedings to challenge the two orders - both dated 18.4.2012 - passed by the learned tribunal (and for that matter the orders passed by the Board of Nominees) and it has also not taken out any proceedings to enforce the auction sale.
13. In this context, learned Counsel for the applicant would submit that in view of the provision contained under section 96 of the Gujarat Cooperative Societies Act (hereinafter referred to as the "Act") the applicant cannot take out any proceeding before the Board of Nominees or before the learned tribunal. The applicant would also rely on the two petitions preferred by it.
14. Another relevant aspect is that it is not in dispute that the plaintiff i.e. opponent No.1 herein has not prayed for any relief against present applicant. Actually there is no cause of action of lis between the applicant herein and the opponent No.1 i.e. original plaintiff in Arbitration Suit No.43 of 2011. The real contesting party before the Board of Nominees is the present opponent No.2 Bank inasmuch as the opponent No.2 Bank is in possession of the property in question and it is the Bank who initiated auction proceedings and claims title and interest and ownership of the property in question.
15. So as to consider and appreciate the relief prayed for by the applicant in present case and particularly to ascertain as to whether the applicant can be said to be necessary or proper party to the proceeding, it is necessary to take into account some factual background. It has emerged from the record that somewhere in 1941 the predecessor of present opponent No.1 executed a deed in favour of opponent No.2 Bank. There is serious dispute between the plaintiff and the opponent No.1 bank as to the nature of the said deed, i.e. as to whether it is deed of mortgage or it is a sale deed. On the basis of the said document dated 18.4.1941 the bank claims title and interest and ownership of the property and also claims that legal possession is in its hand. It is also claimed by the opponent bank that it is entitled to sell the property in question in view of the provisions contained in the said deed. It appears that in purported exercise of power to sell the property in question as per aforesaid deed dated 18.4.1941 the opponent No.1 bank had issued advertisement and invited bids wherein the applicant herein emerged as highest bidder. The respondent bank therefore accepted the said bid. However, the applicant herein failed to make payment as per the agreed schedule. Therefore the respondent bank cancelled the decision of accepting the applicants' bid and decided to conduct auction process afresh. In pursuance of the said decision bank issued another advertisement. It appears that after the advertisement was issued the applicant herein approached the respondent bank and agreed to make payment as per original terms of the auction. It appears that the respondent bank with a view to avoiding or putting an end to litigation agreed to accept the applicants' request. In pursuance of such subsequent agreement the applicant appears to have made payment of sale consideration in installment. However, until now sale deed is not executed and the title and interest and ownership in the property in question is not transferred in favour of the applicant herein.
16. Along with the said vital fact it is also necessary to keep in focus that the opponent No.1 has initiated Arbitration Suit proceedings against the opponent bank. The said suit has been filed by invoking provision under Section 96 of the Act. In the said proceeding the opponent No.1 has prayed for declaration as well as specific performance and permanent injunction.
17. The plaintiff i.e. present opponent No.1 claims to be the only surviving heir or legal representative of the deceased who executed the document / deed dated 18.4.1941 and in that capacity the opponent No.1 has taken out said suit proceeding and prayed for relief of redemption of mortgage declaration, specific performance and permanent injunction in connection with the property in question. The said Arbitration Suit is pending adjudication before the Board of Nominees.
18. During the pendency of the said proceeding the Board of Nominees passed two orders. By order dated 8.8.2011 the Board of Nominees granted order in nature of injunction restraining respondent bank from alienating transferring, selling in any manner whatsoever the property in question. The said order was carried before the learned Tribunal by bank by preferring Revision Application No.134 of 2011. The tribunal has vide its order dated 18.4.2012 allowed Revision Application and set aside the order dated 8.8.2011 restraining the bank from transferring property in question in any manner in any body's favour. The said order dated 18.4.2012 passed by the learned Tribunal is subject matter of petition being SCA No.6144 of 2012. It is in connection with the said writ petition that the applicant herein has preferred Civil Application No.5382 of 2012 and prayed for being joined as party respondent.
19. As mentioned above, the Board of Nominees also passed another order. The said order has been passed by Board of Nominees below application (exhibit-19) which was preferred by present opponent bank. The bank requested learned tribunal to dismiss the suit proceedings as barred by limitation, in exercise of powers under Order 7 Rule 11(D) of the Code of Civil Procedure. The said application (exhibit-19) came to be rejected by Board of Nominees. Therefore the bank, upon being aggrieved by the said order, filed another Revision Application being Revision Application No. 98 of 2011. Learned tribunal after hearing the bank and original plaintiff i.e. present opponent No.1 partly allowed the Revision Application and remitted the matter to Board of Nominees with direction to frame preliminary issue about the maintainability of suit in view of the limitation and decide the said issue within 30 days. The said order passed by the tribunal is subject matter of the writ petition being SCA No.6145 of 2012.
20. The above mentioned chronology would demonstrate that the applicant herein is neither party to the Arbitration Suit No.43 of 2011 and / or to any of the above mentioned orders and / or to the two Revision Applications. The applicant has, until now, not taken out any proceeding against any order passed in any proceeding by the Board of Nominees or the learned tribunal against the bank and / or against original plaintiff in the Arbitration Suit No.43 of 2011 (except above referred two petitions being SCA No.16615 of 2010 and SCA No.13634 of 2010).
It is also pertinent to note that the applicant herein has not taken out any proceeding against the bank for enforcing its claim for execution of sale deed in its favour.
21. Before proceeding further, it would be appropriate to refer to the observations made by the Apex Court in case of case of Mumbai International Airport Private Limited (supra) wherein the Apex Court has, inter alia, observed that:-
"13.
The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of Code of Civil Procedure (`Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:
"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."
14. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the question involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party.
15. A `necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a `necessary party' is not impleaded, the suit itself is liable to be dismissed. A `proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.
22. Let us consider the scope and ambit of Order I of Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo moto or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice.
25. In other words, the court has the discretion to either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party.
26. 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 and Sumtibai are with reference to the facts and circumstances of the respective case. In Kasturi, 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 did not lay down any proposition that anyone claiming to have any semblance of title is a necessary party. Nor did Kasturi 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.
27. On a careful examination of the facts of this case, we find that the appellant is neither a necessary party nor a proper party. As noticed above, the appellant is neither a purchaser nor the lessee of the suit property and has no right, title or interest therein. First respondent - plaintiff in the suit has not sought any relief against the appellant. The presence of the appellant is not necessary for passing an effective decree in the suit for specific performance. Nor is its presence necessary for complete and effective adjudication of the matters in issue in the suit for specific performance filed by the first respondent-plaintiff against AAI. A person who expects to get a lease from the defendant in a suit for specific performance in the event of the suit being dismissed, cannot be said to be a person having some semblance of title, in the property in dispute.
28. Learned counsel for the appellants contended that in view of section 12A of the Act when AAI granted a lease of the premises of an airport, to carry out any of its functions enumerated in section 12 of the said Act, the lessee who has been so assigned any function of AAI, shall have the powers of AAI, necessary for the performance of such functions in terms of the lease. Learned counsel for the appellant submitted that in view of this provision, it should be deemed that the appellant has stepped into the shoes of AAI so far as the Airport premises are concerned. This contention has no merit. The appellant as lessee may certainly have the powers of AAI necessary for performance of the functions that have been assigned to them. What has been assigned is the function of operation, management and development agreement with reference to the area that been demised. Obviously the appellant as lessee of the Airport cannot step into the shoes of AAI for performance of any functions with reference to an area which has not been demised or leased to it."
22. The plaintiff is dominus litis and that therefore he is free to elect the defendant and cannot be forced to implead particular defendant. However, the Civil Procedure Code confers power on the Court to order, at any stage, any other person as plaintiff or defendant to effectually and completely adjudicate and settle all questions involved in the suit. The provision finds place in the code under Order 1 Rule 10 (1) and Rule 10 (2). The litmus test to decide as to who ought to be permitted to join the proceedings / to be impleaded as party defendant is to find out as to whether he is necessary party to the proceedings or not.
The party whose presence before the Court is necessary to effectually and completely adjudicate the questions involved in the suit is considered necessary party. Differently put a party without whom any order cannot be effectively made is necessary party whereas, a party in whose absence effective orders can be made but whose presence may be necessary for final decision is, ordinarily, considered proper party.
The Court is empowered to join a person whose presence is necessary but the Court would not direct or permit addition of person whose presence is not necessary for the purpose of the suit.
Therefore, anyone who desires to be impleaded as party to any proceedings, is required to establish that he is necessary party to the suit proceedings and the Court should be satisfied on that count.
The Apex Court has observed, in catena of decisions, that addition of parties is not a question of initial jurisdiction of the Court but of judicial discretion which has to be exercised in view of the facts and circumstances of a particular case.
If presence of a person is necessary for complete adjudication of the issues involved in the suit or for final decision in the proceedings, then Court may grant the request or direct the addition of party to the proceedings.
In present case the factual matrix mentioned hereinabove demonstrates that the dispute is between the plaintiff i.e. the petitioner and the defendant i.e. the respondent bank. The issues involved in the suit are related to the document / deed dated 18.4.1941 and about the petitioners' claim for redemption of mortgage which, in turn, would involve interpretation and construction of the document i.e. the deed dated 18.4.1941. For the said purposes, the presence of the applicant will not be necessary and it will be for the Bank to place the case related to the document in question.
The applicant has not been able to demonstrate as to how its presence is necessary to adjudicate the issues related to the aspects involved in the suit.
As mentioned earlier the title and interest and ownership of the property is yet not transferred in favour of and yet not vested in the applicant. Hence, as of now, the applicant is merely a prospective purchaser.
Besides this, until now the applicant has not taken out any proceedings against the bank for enforcing its claim or its rights, if any.
On consideration of the nature of the dispute and the claim raised in the suit proceedings the applicant cannot be considered necessary party, or even proper party so far as these petitions are concerned.
The dispute and claim raised in the suit proceedings are such which can be adjudicated in absence of present applicant.
On plain reading of the plaint it also emerges that the plaintiff i.e. the petitioner has not claimed any relief or direction against present applicant.
Furthermore, the respondent bank is effectively contesting and opposing the suit proceedings, being party defendant in the suit.
It may also be taken into consideration that in the petitions filed by present applicant any interim order is not passed in favour of the applicant or any order creating any right in favour of the applicant or imposing any obligation or prescribing any conditions for the plaintiff has not been passed.
Thus, having regard to the above discussed aspects and after considering the factual background it has emerged that the applicant has failed to establish and has failed to satisfy the Court on the count that it is necessary or proper party to this proceedings i.e. proceedings of present petition wherein the limited issue is about the orders passed by the learned tribunal in two revision applications.
The applicant cannot be treated or considered as necessary or proper party for the proceedings of the subject writ petitions being SCA No.6144 of 2012 and 6145 of 2012.
Therefore for the foregoing reasons the Civil Applications preferred by the applicant i.e. Civil Application No.5382 of 2012 and 5383 of 2012 for being impleaded as party to the SCA Nos. 6144 of 2012 and 6145 of 2012 are not accepted and the same are rejected.
(K.M.THAKER,J.) Suresh* Top