Dismissed

Satishkumar Dahyalal Choksi v. Girish Maneklal Damania and Ors.

Bombay HC28 Jan 2013WP/5246/2012

Case brief

AI extract

What is this about?

A writ petition challenging dismissal of an application seeking joinder of the petitioner as a necessary party in a Small Causes suit for eviction. The High Court held the petitioner is not a necessary party as he has a pending suit for specific performance and no privity of contract exists with the original lessors.

What did the court decide?

Continuation of the ad-interim order passed by this Court on 7th September 2011 is refused.

Satishkumar Dahyalal Choksi Vs Girish Maneklal Damania and… — Property and Title | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 5246 OF 2012

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Satishkumar Dahyalal Choksi ....Petitioner. Versus Girish Maneklal Damania and others ....Respondents.

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Mr. D. D. Madon, Senior Counsel , Mr. Neveille Mukerji, Ms. Poorva Garg i/b Wadia Ghandy & Co. for the Petitioner. Ms. Ranjana Parikh for the Respondent No. 1.

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CORAM: S. C. DHARMADHIKARI, J. DATED : JANUARY 28, 2013.

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P.C.:

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In the light of the order passed by this Court on 7^th

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September, 2012, this Writ Petition is disposed off finally.

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Hence, Rule.

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The contesting Respondents (the Respondent Nos.

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1(A), 2(A)/original Plaintiffs waive service. The presence of the other Respondents is not necessary for the purposes of determining the controversy between parties.

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The Petitioner is the original Applicant. He states that

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he is the occupant and purchaser of the suit property and which is

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described as occupying entire 3^rd floor. The Applicant/Petitioner claims to be in possession from 1979 and states that the original Respondent No. 4 Parmanand Patel handed over this portion to him and put him in possession in part performance for an Agreement for Sale dated 18^th October, 1979. The present Respondent Nos. 1 to 3 are the original Plaintiffs and claimed that they are the owners of the land or ground admeasuring 570 sq. yards situated at Hughes Road Bombay bearing CTS 1539 (pt) of Girgaum Division. The said Parmanand Patel was the lessee of the present Respondent Nos. 1 to 3 in respect of the land and the owner of a structure being a building comprising of basement, ground floor and six upper floors and an Air Conditioning Plant known as Patel House. Now, Parmanand Patel has expired and his wife and two daughters have been impleaded as the Respondent Nos. 4a to 4c. It is stated that they are the surviving legal heirs of the deceased Parmanand Patel and, therefore, the Defendants in the suit which is filed in the Court of Small Causes at Bombay.

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The 5^th Respondent is the Court Receiver of the High Court, Bombay, who was appointed as a Receiver of the property

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including the land save and except the 3^rd floor by an order dated 25^th October, 1982 passed by this Court in Suit No. 1712 of 1982.

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It is stated that there is a suit filed in the Court of Small Causes at Bombay being T.E.R. Suit No. 42/49 of 2003 on 14^th February, 2003. This suit is filed against the Patels and the Receiver claiming a decree for possession of the suit land after removal of the structure standing thereon together with mesne profits alleging that the original lessee Parmanand Patel committed several breaches of the terms and conditions of an agreement for tenancy in his favour. It is stated that the present Applicant/Petitioner made an application for impleading himself as a party to this suit being Application No. 238 of 2007. The Applicant/Petitioner prayed that he be impleaded as the Defendant No. 3 in the eviction suit and, therefore, be permitted to file Written Statement and contest the suit. This interim application, a copy of which is at Annexure-B to the Petition is on the footing that the Applicant/Petitioner has in or about October, 1979 held negotiations with the original Defendant No. 1 for purchase of the suit property and pursuant to the negotiations, an agreement was arrived at on or about 18^th October, 1979 between

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the Applicant and the original Defendant No. 1 Parmanand Tulsidas Patel, since deceased, under which he agreed to sell, transfer and assign the suit property to the Applicant/Petitioner and the Petitioner agreed to purchase it for agreed consideration of Rs.1,06,00,000/- and on the terms and conditions stipulated therein. Upon execution of this agreement, the Applicant/ Petitioner paid a sum of Rs.10,00,000/- to said Parmanand Patel and he acknowledged the receipt thereof and after execution of the agreement, the original Defendant No. 1 Parmanand Patel has placed the Applicant/Petitioner in vacant possession of the entire 3^rd floor in part performance of the Agreement for Sale. There were further payments made and which have been recorded and which have been referred to. Later on, it is stated that due compliance was made of the obligations on the part of the Applicant but the original Defendant No. 1 Parmanand Patel did not comply with his part and there was a correspondence between the Applicant/Petitioner and said Parmanand and, eventually, apprehending that the agreement may not be performed by Parmanand, the Applicant/Petitioner filed a suit in this Court being Suit No. 1791 of 1982. That suit was filed on 4^th February, 1982 claiming specific performance of an Agreement for Sale

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dated 18^th October, 1979. That suit is pending. A similar suit was filed and it is not disputed by the Applicant that one Bhattad Commercial Corporation being Suit No. 749 of 1982. One Modi Rubber Limited also filed a suit of similar nature being Suit No. 2144 of 1989. Both are in respect of the same property. In the Applicant's suit an application was made for interim injunction by way of Notice of Motion being Notice of Motion No. 598 of 1982 and, thereafter, the common order which is the interim order in the suit appointing the Court Receiver was passed but the Applicant/Petitioner contended that the said order does not appoint a Court Receiver of the 3^rd floor portion which is in possession of the Applicant/Petitioner in part performance of the agreement. However, as far as the other portions of the building and floors are concerned the Court Receiver, High Court, Bombay has been appointed as a Receiver and with the direction that he should take possession of the same.

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It is then not necessary to refer to what has been stated to in the suits which are pending for specific performance because the Applicant/Petitioner does not dispute that he is yet to obtain a final relief in his favour. In the meanwhile, he learnt about the

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filing of the suit in the Court of Small Causes and which suit has been filed by the Respondent Nos. 1 to 3 in this Writ Petition against the said Parmanand and now his heirs and legal representatives and the Court Receiver. They have filed the suit for possession and the apprehension of the Applicant/Petitioner is that the suit in the Court of Small Cause covers the entire property and the 3^rd floor portion of which he is been put in possession in part performance of his substantive agreement. Therefore, the apprehension was that, once the original Defendant Parmanand has expired, upon his expiry, there is a grave threat that the suit may not be contested and thereby jeopardising the rights of the Applicant/Petitioner including defeating his claim for specific performance. Therefore, he moved this application and in the application he raised the plea that, his presence is necessary as he has an agreement in his favour from the deceased Parmanand and which agreement is for sale of the entire property. That agreement is valid subsisting and binding on the heirs of the deceased Paramanand. They may not contest the suit of the Respondent Nos. 1 to 3 in this Writ Petition and which is pending

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in the Court of Small Causes since 2003 and thereby the Petitioner's/Applicant's suit will be adversely affected. He will

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then, not be in a position to obtain all the reliefs and that is how his presence is needed and necessary and, therefore, he should be directed to be joined as a Defendant No. 3.

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This application was made and the learned Judge of the Court of Small Causes heard it and by his order dated 14^th January, 2011 he has dismissed the same.

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Aggrieved and dissatisfied with that order a Revision Application was preferred being Revision Application No. 52 of 2011 and, equally, that has been dismissed by the order of the Revisional Court dated 28^th November, 2011.

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These concurrent orders are under challenge in this Writ Petition by revoking Article 227 of the Constitution of India. Mr. Madon, learned senior counsel appearing on behalf of the Petitioner has after referring Section 53A of the Transfer of Property Act, 1882 submitted that, this is not a case where there will be no prejudice to the Applicant/Petitioner. The property involved in both suits is common. Some of the parties to the suit of the Applicant/Petitioner and, equally, that of the Respondent

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Nos. 1 to 3 in the Court of Small Causes are common. The possession of the entire property including the structure thereon is claimed by the Respondent Nos. 1 to 3. Equally, the suit for specific performance covering the agreement dated 18^th October, 1979 is in respect of the same property. In such circumstances and when there is a genuine apprehension of collusion and noncontest by the vendor or his heirs, then, claim of specific performance will be totally frustrated and defeated. The Trial Court as well as the Revisional Court have failed to notice this and thus, erred in rejecting the application for joinder. Mr. Madon submits that the only reason assigned by the Trial Court is that similar application was made by M/s. Bhattad Commercial Corporation. Their application was contested and the Court of Small Causes has dismissed it. For the same reasoning even this application deserves to be rejected. Mr. Madon has submitted that the reasoning of the Trial Court in paragraph nos. 13 and 14 of the impugned order is, therefore, erroneous. On such erroneous reasoning and by refusing to go into and consider the aspect that Parmanand under the parent lease was permitted to assign his right, title and interest in the suit property and there was a covenant that the lessor of the property, namely, the Respondent

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Nos. 1 to 3 shall give their consent or shall not withhold it unreasonably. Therefore, even this issue arises and on the basis of the consent that is claimed by Parmanand, rights have been created in favour of the Applicant/Petitioner. In such circumstances, the Applicant for joinder could not have been rejected.

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Mr. Madon has also criticized the order passed by the Revisional Court and, particularly, holding that the original Plaintiffs in the suit are dominant and that they would decide as to how they should sue their tenant/lessee. Merely, because there is a claim that there is no privity of contract as between the Respondent Nos. 1 to 3 in this Writ Petition and the present Petitioner/Applicant, that by itself does not mean that the application can be dismissed. Mr. Madon submits that when the party is a necessary party then all such considerations are out of place. If necessary party has to be joined that is irrespective of whether the original Plaintiff would resist that joinder or not. Therefore, the learned trial Judge as well as the Revisional Court has not applied the correct tests. They have proceeded to reject the application also on delay and latches which is hardly a

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relevant consideration in this case. For all these reasons Mr. Madon submits that both orders be set aside and the Writ Petition be allowed.

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Ms. Parikh, learned counsel appearing on behalf of the said Respondent on the other hand submits that the Court must consider the pleadings in the suit which is pending in the Court of Small Causes. That suit is filed by the Respondent Nos. 1 to 3 to this Writ Petition against the said Parmanand and the heirs and legal representatives and, equally, the Court Receiver for possession of the suit property. The pleading is that, Parmanad was the lessee of the Respondent Nos. 1 to 3 lessors. The property was given to him on lease. The property was a land and upon which Parmanand could have constructed structures. However, there are breaches committed by Parmanand and that compelled the Respondent Nos. 1 to 3 lessors to terminate the lease and file a suit for recovery of possession. That in the meanwhile, some suits were filed against Parmanand in respect of the same property and in which, a Court Receiver has been appointed, does not require the Respondent Nos. 1 to 3 or compel them to join anybody except the Court Receiver. It is submitted by her that in

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such a suit the presence of the Applicant/Petitioner before me is neither necessary nor proper. There is absolutely no privity of contract between the Respondent Nos. 1 to 3 and the Applicant/Petitioner. The Applicant/Petitioner has filed his own suit seeking specific performance of Agreement for Sale executed in his favour as claimed against Parmanand. Such a suit is pending in the High Court, Original Side and the relief therein is distinct and has nothing to do with the suit which was filed in the Court of Small Causes by the Respondent Nos. 1 to 3 against Parmanand. The Applicant/Petitioner may not be forced upon and foisted on the Respondent Nos. 1 to 3. He is not a necessary party, then, the application deserves to be dismissed and has been rightly dismissed. Similar applications were made by Bhattad Commercial Corporation and their applications were rejected by the Trial Court. That order has not been questioned by Bhattad. Now, to prolong and delay the suit of the Respondent Nos. 1 to 3 such applications have been made by the Applicant/Petitioner and the conduct of the Applicant/Petitioner is also such that he should not be extended or given any equitable or discretionary relief. For all these reasons, the Writ Petition be dismissed.

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With the assistance of the counsel appearing for the parties, I have perused the Petition and the annexures including both orders. I have also perused the application made by the Petitioner for joinder and the reply thereto. To my mind, there is much substance in the contentions of Ms. Parikh appearing on behalf of the Respondent Nos. 1 to 3/original Plaintiffs in the T.E.R. No. 42/49 of 2003. Admittedly, that suit is pending. That suit has been filed by the Respondent Nos. 1 to 3 for possession. It is not necessary to refer to and reproduce the plaint allegations. That the relief claimed is against Parmanand on the footing that Parmanand committed a breach of terms and conditions of the lease in his favour is not disputed by the present Petitioner.

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The present Petitioner states that Parmanant Tulsidas Patel since deceased and one Tulsidas B. Private Limited, a private limited company owned and controlled by Parmanand was seized and possessed by an immovable property consisting of a plot of land alongwith structures standing thereon. That the said private limited company had in the name of Parmanand taken on lease the suit property from the predecessor in title of the Plaintiff in T.E.R. No. 42/49 of 2003. The indenture of the lease dated 3^rd

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October, 1964 has been referred to and, then, the construction made thereon. Thereafter, the claim is of agreement executed by Parmanand in favour of the Applicant/Petitioner on 18^th October, 1979. The agreement has not been performed leading the Applicant/Petitioner to file a suit being Suit No. 1791 of 1982 in this Court of its Original Side on 4^th February, 1982 and claiming specific performance of the Agreement for Sale. In paragraph no. 10 of the application made for joinder, the pendency of similar suits by Bhattad Commercial Pvt. Ltd and Modi Rubber is referred to. The Applicant/Petitioners states that his new solicitors had advised him to intervene and represent his interest in suit property in the suit filed in the Court of Small Causes. That was on the footing that the suit may proceed exparte against Parmanand as his heirs may not contest the claim. They may not contest the claim effectively. Paragraph nos. 19 to 22 of the application projects such grievance. Thereafter, paragraph nos. 23 and 24 allege collusion and non-contest of the suit. On such application to my mind which does not project any grievance of a necessary party being not impleaded or that the Petitioner/original Applicant being necessary party has been rightly rejected.

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The Trial Court, equally, Revisional Court did not commit any error in relying upon its earlier findings and in the order in relation to M/s. Bhattad Commercial Corporation. Prima facie, it is not disputed that the grievance of M/s. Bhattad Commercial Corporation and the present Petitioner is identical. The suits filed by them claimed similar reliefs. In such circumstances and when the original Plaintiffs have averred that they have no privity of contract with the Applicant/Petitioner and the Applicant/Petitioner already availing of his own remedies and seeking substantive reliefs, then, I do not see how he can claim to be a necessary party. It is for the original Plaintiffs to decide whom to sue as proper parties and they will take the consequences of any decree that may be passed in the Petitioner's favour. Presently, the suit filed by the Applicant/ Petitioner seeking specific performance of an Agreement for Sale is not decreed and that relief itself is discretionary in nature. In such circumstances, if tomorrow the suit of the Applicant/Petitioner is decreed and which is substantive in nature, it will have its own consequences in the event the original Plaintiffs in the Small Causes Court suit succeed. It is not as if the Applicant/Petitioner

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is without any remedy in the event he succeeds in the suit and seeks enforcement of the decree passed in his favour. However, as the pleadings stand the Petitioner cannot be said to be a necessary party. In such circumstances, the Trial Court as also the Revisional Court did not commit any error of law apparent on the face of the record in denying the request of the Applicant/ Petitioner. Their orders do not suffer from any perversity either. They are consistent with the materials produced and the legal provisions that have been referred. In such circumstances, there is no merit in this Writ Petition and it is dismissed. No costs.

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At this stage, it is prayed that the order passed on 7^th September, 2011 in this Writ Petition be continued so as to enable the Petitioner to challenge this order in the higher Court. This request is opposed by the Ms. Parikh appearing on behalf of the Respondents/original Plaintiffs.

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Once I have held that the Applicant/Petitioner is not a necessary party and that he has his own remedy which he has availed of inasmuch as his suit for specific performance is pending and the Respondent Nos. 1 to 3 in this Writ Petition who are

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contesting this claim will take the consequences in the event the Applicant/Petitioner succeeds in that suit, then, this is not a fit case for continuing the ad-interim order passed by this Court on 7^th September, 2011. Request made for continuation of the adinterim order is refused.

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(S. C. DHARMADHIKARI, J.)

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Satishkumar Dahyalal Choksi v. Girish Maneklal Damania and Ors.

Case brief

What is this about?

What did the court decide?

Satishkumar Dahyalal Choksi v. Girish Maneklal Damania and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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