Two petitions under Article 227 challenging orders rejecting impleadment applications in civil revision cases. The court held the petitioners were not necessary or proper parties and dismissed the petitions.
Both petitions under Article 227 were dismissed as the petitioners were not necessary or proper parties.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 1927 of 2018
Petitioner :- Zarina Naim Respondent :- Ashraf Khan And 2 Others Counsel for Petitioner :- Divakar Rai Sharma Counsel for Respondent :- Anil Kumar Aditya
And
Case :- MATTERS UNDER ARTICLE 227 No. - 5216 of 2015
Petitioner :- Zareena Naim Respondent :- Mohammad Ashraf Khan And 2 Others Counsel for Petitioner :- Divakar Rai Sharma Counsel for Respondent :- Anil Kumar
Hon'ble Mrs. Sunita Agarwal,J.
These two connected petitions have been filed against two separate orders dated 18.08.2015 and 16.03.2018, passed in two different revisions namely Civil Revision No. 73 of 2015 and Civil Revision No. 283 of 2017, arising out of the original suit no. 5 of 2013 and Original Suit No. 378 of 2013 respectively;
In both the aforesaid suits, the applicant who filed impleadment application under Order 1 Rule 10 C.P.C., is same and hence both the petitions were connected vide order dated 29.03.2018 passed by this Court.
The relevant facts of Petition Matter under Article 227 No. 5216 of 2015 to decide the controversy in hand are that the original suit no. 1611 of 2012 has been filed by the plaintiff/respondent first set (herein) seeking permanent prohibitory injunction restraining two defendants namely Smt. Zarina Naim (petitioner herein) and Dr. Naim Ahmad
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Khan (husband of the petitioner herein), with respect to the suit property, description of which has been given at the foot of the plaint therein, which reads as under;-
“ A plot khasra no. 482 area 0.1003 hectare out of area 0.1600 hectare, situated at village Mahespur, Pargana and Tehsil Koil, District Aligarh.
East: Plot Khasra no. 463 of Zarina Naim
West: Plot khasra no. 483 of Smt. Raisa Begum and khasra no. 484
North: Rest plot khasra no. 482 of Smt. Beena Devi & others, (the vendors of the plaintiff) thereafter Chakroad khasra no. 481 thereafter khasra no. 480
South: Bye Pass Road Manzoorgarhi”
As per the plaint assertions therein, the plaintiffs claimed to have purchased the suit property by way of registered sale deed dated 16.03.2012, executed on the basis of a registered power of attorney dated 11.11.1999 given by the owner in favour of Sri Parvej Ahmad Khan. It is contended that defendant no.1 was purchaser of Khasra No. 483 which is adjoining land to the suit property namely Khasra No. 482. It was further contended that the defendants had no right, title or interest in the suit property namely Khasra No. 482, but they were trying to take forcible possession of the suit property, which was purchased by the plaintiffs. The petitioner herein namely the defendant no. 1 had filed her written statement in the aforesaid suit in the month of October 2012 accepting the plaint assertion that she was owner of the Khasra Plot No. 463 by virtue of the sale deed dated 11.11.1999 and was in possession of the said plot owned by her. It was however,
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denied that she had interfered in the plaintiff's possession over the plot no. 482. It has, however, not denied that both the plots are contiguous. It was, however, submitted that the plaintiffs being as anti-social persons malafidely instituted the suit for injunction in order to take forcible possession over the property of the defendant no.1 namely plot no. 463 and the constructions made thereon. The plaintiffs has legally interfered in the construction being made by defendant no.1 and in order to achieve his illegal motives, they had filed a frivolous, fictitious, vexatious suit, in respect of the property belonging to the defendant no.1 in Khasra No. 463, wrongly alleging it as being part of the alleged Khasra No. 482. It was contended that in fact, the suit property is part of Khasra No. 463 belonging to the defendants. It was, thus, contended that the plaintiff wanted to take forcible possession of the property of the defendant no.1 in the garb of injunction. The correct location of the said plot has been shown in the affidavit 8-C-2 filed in the said suit. It was further alleged that the sale deed dated 16.03.2012 of the plaintiffs based on the power of attorney dated 11.11.1999 was a forged document and no valid transfer of title could be made in favour of the plaintiffs on the basis thereof.
It appears that during pendency of the said suit, the plaintiff therein filed an original suit no. 5 of 2013 on 01.01.2013 in relation to the same suit property namely a portion of plot no. 482 (for an area of 460 square meters out of total area of 0.1003 hectares), against two persons namely Mr. Shakeel Ahmad Khan and Mr. Raees Ahmad, for the relief of cancellation of the sale deed dated
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12.07.2012, registered on 04.08.2012. It was stated therein that the said sale deed was executed by the plaintiff therein without receipt of any sale consideration rather it was executed in a state of distress, when plaintiff was in dire need of money and had agreed to execute the deed for protection of the loan amount of Rs. 30 lakhs taken from the defendant. It was contended that the said money was repaid by the plaintiff in four installments and after return of the borrowed money, the defendants had refused to cancel the deed and as such the cause of action to bring the suit for cancellation of the alleged sale deed dated 12.07.2012 arose. It appears that in the said suit, a compromise, allegedly arrived between the parties, had been filed. At that stage, the petitioner herein namely the defendant no.1 in original suit no. 1611 of 2012, had filed an impleadment application in original suit no. 5 of 2013 stating therein that the cancellation of the sale deed dated 12.07.2012 on the compromise of the parties, would result in declaration of right of the plaintiff in the suit property namely Khasra No. 482. And further that as the impleadment-applicant had denied the right of the plaintiff in the said suit property being defendant no.1 in original suit no. 1611 of 2012 brought by the same person, she was a necessary and proper party to the subsequent suit namely, the original suit no. 5 of 2013, as in case of any decision in the said suit, the right of the impleadment-applicant would be adversely affected. It is further contended that both the plaintiffs and the defendants of original suit no. 5 of 2013 are in collusion.
The impleadment application, initially had been allowed by the trial court vide judgment and order dated
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20.06.2015 recording therein that the plaintiff herein had not disclosed the fact of filing of the earlier suit namely original suit no. 1611 of 2012 against the impleadmentapplicant and, thus, he had not come with clean hands, and moreover, presence of the impleadment-applicant would help the court to adjudicate the rights of the parties in relation to the suit property i.e. plot no. 482, effectively and completely. This order has, however, been set aside by the revisional court with the finding that in a suit for cancellation of sale deed, only the executant i.e. the seller and purchaser of the sale deed, are necessary parties. The result of any decree in favour of the plaintiffs in a suit for cancellation of the sale deed would be that the sale deed shall be treated as being non-existent. The status of the plaintiff prior to the institution of the suit for execution of the sale deed dated 12.07.2012 in relation to the suit property i.e. plot no. 482, would not be affected in any manner. In any case, the original suit no. 5 of 2013 seeking for cancellation the sale deed dated 12.07.2012, which had allegedly been executed for a portion of plot no. 482 has no relation to the plot no. 463, which is subject matter of original suit no. 1611 of 2012.
Challenging the order of the revisional court, the petition no. 5216 of 2015 has been filed on the ground that the revisional court had exceeded in its jurisdiction, inasmuch as, it had no jurisdiction to reject the impleadment application on its own. The submission is that the revisional court was not empowered to appreciate the evidences on record independently so as to take a different view on the same set of evidences, considered by the trial
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court. The trial court once exercised its discretion in allowing impleadment application, it was not open for the revisional court to reject the same. At the worst, in case, the revisional court found that the order of the trial court was not sustainable, it ought to have remitted the matter back for fresh consideration.
Further, the relevant facts of Petition Matters under Article 227 No. 1927 of 2018 are that the said petition has arisen out of an order passed by the revisional court in a revision arising out of the original suit no. 378 of 2013. The said suit has been filed by the plaintiff of original suit no. 1611 of 2012 against two other persons namely Mr. Jamir Ahmad Khan and Mr. Raees Ahmad, with regard to a portion of khasra no. 482 (646.44 sq. yards, 543 sq. meters) (total area of which is 0.1003 hectares) for the relief of cancellation of the sale deed dated 12.07.2012, registered on 13.08.2012. The plaint assertion in the said suit are almost similar to the original suit no. 5 of 2013, inasmuch as, that the said sale deed dated 12.07.2012 was allegedly executed in favour of the defendant no.1 therein through the power of attorney namely defendant no.2, as a deed of protection of loan taken by the plaintiff for an amount of Rs. 30 lakhs, being in dire need of money. The assertion therein is that the said loan was repaid by him but since the defendant therein did not agree to cancel the sale deed, the cause of action for filing of the said suit arose.
The petitioner herein namely Smt. Zarina Naim, who is defendant no. 1 in original suit no. 1611 of 2012, filed an impleadment application in the original suit no. 378 of 2013 with the same assertion that her rights in the suit
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property namely plot no. 483 would be adversely affected and that the plaintiff and defendants therein were in conclusion. With the declaration of right of the plaintiff in the suit property namely Khasra No. 482, the right of the impleadment-applicant who is owner in possession of plot no. 463, which is a contiguous plot, would be affected. It was contended that the plaintiff of original suit no. 378 of 2013 had deliberately not impleaded the applicant in the said suit, so as to deprive her of any right in the suit property. It was contended therein that the impleadment application filed in original suit no. 5 of 2013 had already been allowed by the trial court and the counsel of the applicant came to know about the pendency of the original suit no. 378 of 2013, while he was present in the court for hearing of the original suit no. 5 of 2013.
The trial court again allowed the impleadment application by the order dated 30.10.2017 with the finding that the presence of the applicant is essential to effectively and completely adjudicate upon the issues in the said suit. It was observed that the right of the impleadment-applicant would be seriously and adversely affected with the decision of the Original Suit No. 378 of 2013 and it would be useful, if the applicant is made necessary party.
The revisional court, on a challenge to the order of impleadment has observed that any decree for cancellation of the sale deed, would in no way affect the right of the impleadment-applicant, who is claiming her right in Khasra No. 463. There was no dispute regarding the boundaries of Khasra No. 482 or 463 in the original suit no. 378 of 2013 and further the rights of the present parties in relation to the
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suit property were not to be determined therein. The original suit no. 378 of 2013 was only a suit for cancellation of the sale deed and in the event of a decree of the cancellation being passed, the position as existing prior to the execution of the sale deed, would revive as such. In any case, the impleadment-applicant was neither necessary nor proper party to this case.
The second petition was also filed on the same ground that the revisional court had no jurisdiction to set aside the order of the impleadment, which was passed in by the trial court in exercise of jurisdiction vested with it. In case of any error of jurisdiction found by the revisional court, it had no option but to the set aside the order and remit the matter back for fresh consideration.
To deal with the controversy, it would be pertinent for the Court to remind itself about the scope of supervisory jurisdiction under Article 227 of the Constitution of India. In the case of Surya Devi Rai Vs. Ram Chander Rai and others reported in (2003) 6 SCC 675, followed in the recent cases, it has been repeatedly reminded by the Apex court that the supervisory jurisdiction under Article 227 of the Constitution of India conferred upon the High Court has to be exercised sparingly i.e. in a case where it is necessary to exercise the same in order to keep the subordinate courts within the bounds of their jurisdiction. The conditions for exercise of supervisory jurisdiction under Article 227 of the Constitution of India as has been laid down in the case of Surya Devi Rai (supra) are as under;-
“(i) where the subordinate court has assumed a jurisdiction which it does not have;
(ii) It has failed to exercise a jurisdiction which it does have;
(iii) The jurisdiction though available is being
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exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the supervisory jurisdiction under Article 227 of the Constitution of India cannot be exercised by the High Court to correct mere errors of fact of law unless two requirements are satisfied.
(iv) The error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of provisions of law. (v) A grave in justice or gross failure of justice has occasioned thereby."
It has further been observed by the Apex Court that a patent error which is self evident i.e. which can be demonstrated without involving any lengthy or complicated arguments or long process of reasoning, can be corrected by the High Court by invoking jurisdiction under Article 227 of the Constitution of India. However, where two inferences are reasonably possible and the subordinate courts has chosen to take one view, the error cannot be called gross or patent.
Grave caution and circumspection needs to be exercised when the jurisdiction under Article 227 is sought to be invoked during the pendency of any suit or proceedings in a subordinate court, as an interference in supervisory jurisdiction would obstruct the smooth flow/ or early disposal of the suit or proceedings. In any case, the High Court should not convert itself in a court of appeal and indulge in re-appreciation or evaluation of the evidence to correct error of mere formal or technical nature or to draw a different inference.
In the light of the above legal position for exercise of the supervisory jurisdiction under Article 227 of the Constitution of India, in the facts of the instant case, this Court finds that the dispute being raised by the impleadment applicant/defendant no.1 in original suit no.
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1611 of 2012 is with regard to the right of the plaintiff namely Sri Ashraf Khan to assert the transfer of title in his favour by virtue of the sale deed dated 16.03.2012. The defendant no.1 on the other hand (in original suit no. 1611 of 2012) had claimed her right over Khasra Plot No. 463, which is contiguous to plot no. 482, subject matter of the said suit. The assertion of the defendant no.1/petitioner in the written statement filed (in the original suit no. 1611 of 2012) was that the said suit property is part of the plot no. 463, belonging to her. Moreover, as to the assertion of the plaintiffs getting right in Khasra No. 482 by virtue of the sale deed dated 16.03.2012, it was contended that the said sale deed was not valid having not been executed through a valid power of attorney.
The question before the trial court in original suit no. 1611 of 2012 is, thus, whether the suit property is part of the Khasra No. 482 belonging to the plaintiff or plot no. 463, (belonging to the defendants). In any case, the right of the plaintiff by virtue of the sale deed dated 16.03.2012 claimed therein is to be examined by the trial court in the said suit. In any case, the relief of cancellation of subsequent sale deeds executed by the plaintiff of original suit no. 1611 of 2012 sought against other persons would have no bearing on the right of the defendant no.1 in the said suit.
The effect of cancellation of the sale deeds, executed by plaintiff in two independent suits brought by him, would be that the position prior to the execution of the said documents would stand as it is. In any case, the plaintiff in original suit no. 1611 of 2012 has to establish his right in the suit property asserted through the sale deed
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dated 16.03.2012 which is prior in time to the sale deeds under challenge in two subsequent suits brought by him against other persons. Any compromise decree, if arrived in the subsequent two suits namely original suit no. 5 of 2013 and 378 of 2013, would in no way affect the right of the defendant no. 1 in original suit no. 1611 of 2012.
No infirmity, therefore, can be attached to the orders of the revisional courts merely on the plea that they had exceeded in their jurisdiction in setting aside the orders of the trial court by rejecting the impleadment applications. In the opinion of this Court, the view taken by the revisional court in both the orders impugned is in conformity with the object of Order 1 Rule 10 C.P.C..
As to the object of Order 1 Rule 10(2) C.P.C., it is noteworthy that the said provision has been framed by the legislator conferring power on the Court for impleadment of proper and necessary party, at any stage of the proceedings. The said Rule has been brought as an exception to the general rule in regard to the impleadment of parties, which is that the plaintiff in a suit, being dominus litus may choose the persons against whom he wishes to litigate and that he cannot be asked to implead a different person against whom he does not seek any relief. The subRule (2) of Order 1 Rule 10 C.P.C. is not about the right of a non-party to be impleaded as a party but about judicial discretion of the court to struck out or add a party at any stage of the proceedings. In exercising its judicial discretion under Order 1 Rule 10 (2) C.P.C., the court has to act according to the said rule and it cannot act according to its own whims and caprice. Only a necessary or a proper party whose presence is required by the court to completely,
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effectively and adequately adjudicate upon all matters in dispute, can be impleaded in a suit. In any case, if a person is not found to be proper or necessary party, the Court has no jurisdiction to implead him against the wishes of the plaintiff (Reference may be made to the judgments of the Apex Court in the case of Ramesh Hirachand Kunddanmal Vs. Municipaal Corporation of Greater Bombay 1992 (2) SCC 524, Anit Kumar Singh Vs. Shivnath Mishra 1995 (3) SCC 147 and Mumbai International Airport (P) Ltd. Vs. Regency Convention Centre aand Hotels (P) Ltd. 2010 (7) SCC 417 .
In the light of the above, having found that the petitioner (herein) was neither necessary nor proper party in the original suit no. 5 of 2013 and original suit no. 378 of 2013 being a stranger, this court does not find any justification to invoke its extraordinary jurisdiction under Article 227 of the Constitution of India, so as to interfere in the conclusion drawn by the revisional courts in the orders impugned dated 18.08.2015 and 16.03.2018 passed in Civil Revision No. 73 of 2015 and Civil Revision No. 283 of 2017; respectively.
Both the above petitions are, thus, found to be devoid of merits and hence dismissed . Order Date :- 20.2.2019 M. ARIF
3 issues framed by the court
Whether the High Court can interfere under Article 227 to set aside the revisional court order rejecting the impleadment application.
Whether the petitioner was a necessary or proper party to the original suits for cancellation of sale deeds.
Whether the revisional court had the jurisdiction to reject the impleadment application as the petitioner was a stranger to the main dispute.
Colour shows how this judgement treated each authority
Surya Devi Rai Vs. Ram Chander Rai and othersFollowed¶40
Surya Devi Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675 · Who else cites this
Ramesh Hirachand Kunddanmal Vs. Municipaal Corporation of Greater BombayReferred¶58
Ramesh Hirachand Kunddanmal Vs. Municipaal Corporation of Greater Bombay (1992) (2) SCC 524 · Who else cites this
Anit Kumar Singh Vs. Shivnath MishraReferred¶58
Anit Kumar Singh Vs. Shivnath Mishra (1995) (3) SCC 147 · Who else cites this
Mumbai International Airport (P) Ltd. Vs. Regency Convention Centre aand Hotels (P) Ltd.Referred¶58
Mumbai International Airport (P) Ltd. Vs. Regency Convention Centre aand Hotels (P) Ltd. 2010 (7) SCC 417 · Who else cites this
2 provisions across 2 enactments
Zarina Naim
Zareena Naim
Ashraf Khan
Mohammad Ashraf Khan
Sunita Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
