Allowed

Anita Devi v. Neelam Jaiswal

Jharkhand HC5 Feb 2025C.M.P./629/2023

Case brief

AI extract

What is this about?

Petitioner sought impleadment in a specific performance suit concerning land over which she held a registered sale deed executed pursuant to Lok Adalat compromises. The High Court set aside the trial court's rejection and directed her to be added as party defendant.

What did the court decide?

Impugned order dated 21.03.2023 set aside; impleadment petition allowed; petitioner directed to be added as party defendant in Original Suit No. 23 of 2018.

Anita Devi Vs Neelam Jaiswal — Specific Performance | Jharkhand HC (2025)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI C.M.P. No. 629 of 2023

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Anita Devi, aged about 41 years, wife of Pramod Kumar Jaiswal, resident of village-Mirza Chowki, P.O. and P.S. Mirza Chowki, District-Sahebganj (Jharkhand)

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…….Petitioner

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… Versus….

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Neelam Jaiswal, wife of Pankaj Kumar Jaiswal, resident of villageMirza Chowki, P.O. and P.S. Mirza Chowki, District-Sahebganj (Jharkhand)

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Suresh Prasad Jaiswal, son of late Prasad Bhagat, resident of village Mirza Chowki, P.O. and P.S. Mirza Chowki, District-Sahebganj, at present residing near Samauayik Bhawan, Mirchaibiari, P.O. and P.S. Katihar, District- Katihar (Bihar).

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…… Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : Mr. Sandeep Verma, Advocate

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For the O.P. No.1 :Mr. Pankaj Srivastava, Advocate For the O.P. No.2 : Mr. Bhaiya Biswajeet Kumar, Advocate

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………. 10/Dated: 05/02/2025

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Heard Mr. Sandeep Verma, learned counsel for the petitioner, Mr.

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Pankaj Srivastava, learned counsel for the O.P. No.1 and Mr. Bhaiya Biswajeet Kumar, learned counsel for the O.P. No.2.

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This petition has been filed under Article 227 of Constitution of India for quashing of order dated 21.03.2023 passed by the learned Civil Judge (Senior Division)-II, Sahebganj in Original Suit No. 23 of 2018 whereby the petition filed by the petitioner under Order I Rule 10(2) C.P.C. for impleadment as party defendant in the said suit, has been rejected.

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Mr. Sandeep Verma, learned counsel for the petitioner submits that the plaintiff/O.P. No.1 filed Original Suit No. 23 of 2018 against the defendant praying there a decree directing the defendant to perform the agreement and execute and register the sale deed in favour of the plaintiff. He further submits that in the plaint it is stated that the defendant along with other legal heirs

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have property in Mouza Mirza Chowki Bazar being J.B. No. 27/2, plot no. 52 having area of 2 katha out of which the defendant got 8 dhoor and 6 dhurki share over which there is pucca constructed room which is the suit property. He then submits that further case of the plaintiff is that on 17.04.2014 the defendant executed a sale agreement for the said property in favour of the plaintiff after accepting the entire sale consideration of Rs. 2,00,000/- and it was agreed that defendant will also take permission to execute and register sale deed in favour of the plaintiff and as such the petition for permission is pending before the Sub-Divisional Officer, Sahebganj being Mutation Case No. 17 of 2014-15. He submits that plaintiff requested the defendant to take proper steps in the said mutation case but the defendant avoided to take proper steps and as such suit being Original Suit No. 23 of 2018 has been instituted in the court of learned Civil Judge, Senior Division-I, Sahebganj. He submits that the defendant appeared and file written statement mainly on the ground that the defendant has already sold his share to one Anita Devi. He further submits that the petitioner in the present petition is Anita Devi. He further submits that pleading was also made by the defendant that Anita Devi has filed Title Suit 25 of 2013 for execution and registration of the lands measuring 6 dhoor and 5 dhurki of J.B. Plot No. 52 part which was compromised before the National Lok Adalat and pursuant thereto sale deed has been executed and registered in favour of Anita Devi who is petitioner. He then submits that the petitioner has instituted two suits being Title Suit no. 24 of 2013 and Title Suit No. 25 of 2013 for specific performance of contract against the co-sharer of the defendant/respondent no.2 i.e Suresh Prasad Jaiswal. He submits that both the suits have been finally compromised before the National Lok Adalat and mutation was made in favour of the petitioner namely, Anita Devi. He further submits that in view of the written statement itself the right of the petitioner 2

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is accrued and in view of that petition for impleadment was filed and the learned court has been pleased to reject the same. He relied in the case of “ Moreshwar Yadaorao Majahan Vs. Vyankatesh Sitaram Bhedi (D) through LRS. And others reported in (2022) 0 SCC (SC) 986 . He refers to

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para 18 and 19 of the said judgment which is quoted hereinbelow:-

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“18. It could thus be seen that 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, It has been held that if a "necessary party" is not impleaded, the suit itself is liable to be dismissed.

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As already discussed hereinabove, the plaintiff himself has admitted in the plaint that the suit property is jointly owned by the defendant, his wife and three sons, A specific objection was also taken by the defendant in his written statement with regard to non-joinder of necessary parties, Since the suit property was jointly owned by the defendant along with his wife and three sons, an effective decree could not have been passed affecting the rights of the defendant's wife and three sons without impleading them. Even in spite of the defendant taking an objection in that regard, the plaintiff has chosen not to implead the defendant's wife and three sons as party defendants.

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Insofar as the reliance placed by Shri Chitnis on the judgment of this Court in the case of Kasturi (supra) is concerned, the question therein was as to whether a person who claims independent title and possession adversely to the title of a vendor could be a necessary party or not. In this context, this Court held thus:

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"7......... From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party."

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Relying on the above judgment, he submits that the learned court

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has erred in dismissing the petition filed under Order 1 Rule 10 C.P.C. in view of that the said order may kindly be set aside and the petition filed by the petitioner may kindly be allowed.

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On the other hand, Mr. Pankaj Kumar Srivastava, learned counsel for the O.P. No.1 who is the plaintiff oppose the prayer on the ground that the petitioner is a stranger as there is no contact between the opposite parties and the petitioner and in view of that the learned court has rightly passed the said order. He further relied in the case of “ Gurmit Singh Bhatia Vs. Kiran Kant

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Robinson and others” reported in 2019 0 Supreme ((SC), 929 and

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referring to para 5 he submits that in the light of order 1 Rule 10 the suit for

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specific performance cannot be forced to add a stranger as a party against whom he does not want to fight. He further relied in the case of “Anil Kumar Singh Vs. Shivnath Mishra @ Gadasa Guru” reported in 1994 0 Supreme (SC) 1067 and referring to paras 4 and 5 submits that in the light of Order 1 Rule 3 C.P.C is not applicable to the suit for specific performance because admittedly the petitioner was not a party to the contract. On these grounds, he submits that learned court has rightly passed the said order.

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Mr. Bhaiya Bishwajeet Kumar, learned counsel for the O.P. No.2 supported the argument of Mr. Pankaj Srivastava and further adds that the fight is between O.P. Nos. 1 and 2 and the contract was entered by O.P. No.2 in favour of O.P. No.1 as such the petitioner is a stranger in view of that the learned court has rightly passed the order.

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In view of above submission of the learned counsel for the parties, the Court has gone through the materials on record including the impugned order of the learned court. It is an admitted position that two suits being Title Suit No. 24 of 2013 and Title Suit No. 25 of 2013 have been instituted by the petitioner which was compromised and pursuant to that registered sale deed has been executed in favour of the petitioner contained in Annexure-4. The written statement of the defendant-Suresh Prasad Jaiswal is annexure-2 wherein para 11 it has been stated as under:-

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“ 11. That para 5, 6,7 is deny and it should be proved by plaintiff, It is submitted that no any contract binding if it obtained with fraud. It is submitted that a Title Suit 25/2013 earlier has been filed by Anita Devi wife of Pramod Kumar Jaiswal against Jagdish Jaiswal and defendant Suresh Jailswal on 19.07.2013 before learned Civil Judge 1, Sahibganj for the land of suit property also mouza MIrzachouki Bazar, J.B. No. 27/2/68, plot no. 52(part) of an area six dhurs five dhurki constructed two room standing on the same and after compromised between the parties before the National Lok Adalat on 8.4.2017 and Anita Devi has withdrew the suit and the defendants had agreed to execute a registered sale deed in favour of Anita Devi.”

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Thus, the petitioner is also one of party of the suit property in

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view of the sale deed was executed pursuant to the decree passed in two

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title suits.

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The order 1 Rule 10 CPC enables the court Order 1 Rule 10 of the Code enables the court to add any person as a party at any stage of the proceedings, if the person whose presence in court is necessary in order to enable the court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision. Order 1 Rule 10 of the Code empowers the court to substitute a party in the suit who is a wrong person with a right person. If the court is satisfied that the suit has been instituted through a bona fide mistake and also that it is necessary for the determination of the real matter in controversy to substitute a party in the suit, it may direct it to be done. Order 1 Rule 10(2) of the Code gives wide discretion to the court to deal with such a situation which may result in prejudicing the interests of the affected party if not impleaded. Reference may be made to the case of “Pankajbhai Rameshbhai Zalavadiya Vs. Jethabhai Kalabhai Zalavadiya” reported in (2017) 9 SCC 700 wherein

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para 10 it has been held as under:-

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“ 10. Order 1 Rule 10 of the Code enables the court to add any person as a party at any stage of the proceedings, if the person whose presence in court is necessary in order to enable the court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision. Order 1 Rule 10 of the Code empowers the court to substitute a party in the suit who is a wrong person with a right person. If the court is satisfied that the suit has been instituted through a bona fide mistake, and also that it is necessary for the determination of the real matter in controversy to substitute a party in the suit, it may direct it to be done. When the court finds that in the absence of the persons sought to be impleaded as a party to the suit, the controversy raised in the suit cannot be effectively and completely settled, the court would f do justice by impleading such persons. Order 1 Rule 10(2) of the Code gives wide discretion to the court to deal with such a situation which may result in prejudicing the interests of the affected party if not impleaded in the suit, and where the impleadment of the said party is necessary and vital for the decision of the suit.”

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The expression to settle all questions involved” used in Order 1

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Rule 10(2) is susceptive to a liberal and wide interpretation, so as to adjudicate 5

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all the questions pertaining to the subject matter thereof. In para 17 of the Pankajbhai Rameshbhai Zalavadiya (supra) it has been held as under:-

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“17. The expression "to settle all questions involved" used in Order 1 Rule 10(2) of the Code is susceptive to a liberal and wide interpretation, so as to adjudicate all the questions pertaining to the subjectmatter thereof. Parliament in its wisdom while framing this rule must be held to have thought that all material questions common to the parties to the suit and to the third parties should be tried once for all. The Court is clothed with the power to secure the aforesaid result with judicious discretion to add parties, including third parties. There cannot be any dispute that the party impleaded must have a direct interest in the subject-matter of litigation. In a suit seeking cancellation of sale deed, as mentioned supra, a person who has purchased the property and whose rights are likely to be affected pursuant to the judgment in the suit is a necessary party. and he has to be added. If such purchaser has expired, his legal representatives are necessary parties.”

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The petitioner is having registered sale deed executed in her

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favour and thus seemingly acquired an interest in subject land, therefore it would be in interest of justice that the petitioner is impleaded in underlying suit to protect her interest. The reference may be made to the case of “ Yogesh

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Goyanka Vs. Govind and Others” reported in (2024) 7 SCC 524 wherein

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paras 17, 18 and 19 of the said judgment it has been held as under:-

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“ 17. Therefore, the mere fact that RSD was executed during the

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pendency of the underlying suit does not automatically render it null and void. On this ground alone, we find the impugned order to be wholly erroneous as it employs Section 52 of the Act to nullify RSD and on that basis, concludes that the impleadment application is untenable. Contrary to this approach of the High Court, the law on impleadment of subsequent transferees, as established by this Court has evolved in a manner that liberally enables subsequent transferees to protect their interests in recognition of the possibility that the transferor pendente lite may not defend the title or may collude with the plaintiff therein (see the decision of this Court in Amit Kumar Shaw v. Farida Khatoon & A. Nawab John v. V.N. Subramaniyam).

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Similarly, we also find fault with the order of the ADJ and its misplaced reliance on Bibi Zubaida². The only principle emerging from the judgment of this Court in Bibi Zubaida² is that transferees pendente lite cannot seek impleadment as a matter of right and to that extent, we agree with the ADJ. However, Bibi Zubaida does not place a bar on impleadment of transferees who purchase property without seeking leave of the Court. The decision of the Court in Bibi Zubaida turns on its own facts; the Court rejected the application for joinder therein noting that the underlying suit was pending since 1983 and upheld the finding of the trial court that the subsequent purchaser was not bona fide and attempted to complicate and delay the underlying suit. Therefore, the judgment in Bibi Zubaida², being distinguishable on facts, does not assist the respondents herein. 19. The respondents herein assail the impleadment of the appellant on the ground that he is not a bona fide purchaser as he had full knowledge of the pending litigation. While that is the admitted position, there exists no bar to the impleadment of transferees pendente lite with notice. Permitting the impleadment of a transferee pendente lite is, in each case, a discretionary exercise undertaken to enable a purchaser with a legally enforceable right to protect their interests especially when the transferor fails to defend the suit or where there is a possibility

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of collusion.”

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Admittedly, the petitioner is having a registered sale deed with regard to suit property and therefore seemingly acquired interest in the said land.

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So far the judgments relied by the learned counsel for the O.P. No.1 in the case of Gurmit Singh Bhatia (supra) and “Anil Kumar Singh (supra) are concerned, that is not in dispute. It was found by the Court that any stranger is trying to be impleaded in the suit property even taking the liberal view he cannot be allowed to be impleaded in the suit. In the background of that facts, the Hon’ble Supreme Court has held that there are strangers and in view of that said order was passed.

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What has been discussed hereinabove and in the light of admission of the defendant written statement itself the prima facie interest of the petitioner is there as such the said judgments are not helping the opposite parties.

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In view of aforesaid facts, this petition is allowed and the impugned order dated 21.03.2023 passed by the learned Civil Judge (Senior Division)-II, Sahebganj in Original Suit No. 23 of 2018 is set aside the petition filed for impleadment is allowed and the petitioner is directed to be added as party defendant in underlying suit.

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( Sanjay Kumar Dwivedi, J.)

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Satyarthi/-A.F.R..

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Anita Devi v. Neelam Jaiswal

Case brief

What is this about?

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Anita Devi v. Neelam Jaiswal

Case brief

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