Saibal Mallick Vs Manoj Kumar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI C.M.P. No. 808 of 2023

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Saibal Mallick, aged about 58 years, son of Late Tarun Kumar Mallick, Permanent resident of Pagmil Road P.S Lohsinghna P.O & District Hazaribagh at present residing at Kalinga Apartment, Radha Govind Street, Tharpakhna Road, P.O. G.P.O., P.S. Kotwali, District - Ranchi. Kotwali,

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………….Petitioner

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Manoj Kumar, son of late Baijnath Modi, resident of Gramin Bank Colony, Korrah, P.O. & P.S. Korrha, District - Hazaribagh.

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Raj Kishore Singh, son of Sri Bhuneshwar Narayan Singh, resident of C/o Krishna Singh, Suresh Colony, P.O., P.S. & District Hazaribagh.

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Rekha Mallick, widow of late Amiya Kumar Mallick

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Arundhati Gupta, daughter of late Amiya Kumar Mallick

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Smt. Chakraborty, daughter of late Amiya Kumar Mallick.

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Ashish Kumar Mallick, son of late Gopinath Mallick No.3-6, All resident of Pagmil Road, P.S. Lohsinghna, P.O. & District - Hazaribagh.

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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. Sudhir Kumar Sharma, Advocate For the O.P. Nos. 1 and 2 : Mr. Shadab Eqbal, Advocate

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Mr. Danish Shahbaz, Advocate

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Mr. Ayush Raj, Advocate

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07/Dated: 03/07/2025

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Notice upon O.P. Nos. 3 to 6 has not been issued as they are

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said to be the Performa opposite parties and contention is that dispute is between petitioner and O.P. Nos. 1 and 2.

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Heard Mr. Sudhir Kumar Sharma, learned senior counsel for the petitioner and Mr. Shadab, learned counsel for the O.P. Nos. 1 and 2.

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This petition has been filed under Article 227 of the Constitution

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of India for setting aside order dated 15.06.2023 passed by the learned Civil Judge (Sr. Division)-III, Hazaribagh in Original Suit No. 57 of 2012 whereby

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the learned court has been pleased to dismiss the application dated

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23.03.2023 filed by the intervener/petitioner for his impleadment as party

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defendant in the Original Suit No. 57 of 2012.

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Mr. Sudhir Kumar Sharma, learned counsel for the petitioner submits that plaintiffs/O.P. Nos. 1 and 2 instituted Original Suit No. 57 of 2012 in the court of learned Sub-Judge, Hazaribagh against late Lalit Kumar Mallick and others for decree of specific performance of contact directing the defendants to execute sale deed with respect to the suit land after obtaining permission from the Deputy Commissioner described in Schedule “A” to the plaint in favour of the plaintiffs before the Sub-Registrar, Registration Office, Hazaribagh within 30 days from the date of offer, failing which the same be executed through the process of the court and cost of the suit was also prayed and for other reliefs. He submits that the case of the plaintiff is that one Sunit Kumar Mallick, Advocate seized and possessed land measuring area 0.90 acres in plot no. 687 besides some constructions under Khata No. 96, Holding No. 413, Ward No. 11, Village Noora and 2.81 acres including House of Plot No. 55, 56, 57, 58, 59, 60, 123/770, Holding No. 504, Ward No. 6, Okni No. 1, P.S. and District Hazaribagh on the basis of inheritance and amicable settlement after the death of his father late Gopi Nath Mallick. He further submits that said Sunit Kumar Mallick was unmarried and was suffering from various diseases and as such for his medical treatment he was in need of some money as such he expressed his desire to dispose of the land described in Schedule ‘A’ to the plaint to the O.P. Nos. 1 and 2, upon which the O.P. Nos. 1 and 2 became ready to purchase the said land on payment of Rs. 10 lacs. After said negotiation Sunit Kumar Mallick after receiving Rs. 3 lacs as an advance out of Rs. 10 lacs made an agreement to sell with the plaintiffs on 18.07.2003 with certain terms and conditions with respect to the suit land described in Schedule ‘A’ to the plaint and had put the plaintiffs in possession thereof. He submits that one of the conditions in the said agreement was that Sunit Kumar Mallick will obtain permission to sell the land from the Deputy Commissioner because the land was building lease land and after permission

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from Deputy Commissioner the plaintiff will pay the balance consideration amount to him and he will execute the sale deed with respect to the above said land in favour of the plaintiffs.

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He submits that in this background when the agreement was not fulfilled against the legal heirs and successors of late Sunit Kumar Mallick the said suit was instituted by the plaintiffs/O.P. Nos. 1 and 2 for the aforesaid relief. He further submits that on being noticed defendant no. 5 namely, Tushar Baran Mallick appeared and filed written statement stating therein that the suit is barred by law of limitation and adverse possession and is fit to be dismissed. He has further stated that the suit has been instituted against the dead persons. Defendant nos. 1, 2 4 and one daughter of late Gopinath Mallick died long back but legal heirs have not been made parties and the suit cannot proceed against dead person and other grounds have also been taken. He draws the attention of the court to the genealogical table which has been incorporated in written statement of defendant no.5 and submits that the name of the father of the petitioner namely, Tarun Kumar Mallick is also reflected. He submits that said land is of khas mahal and since his father name is there in the genealogical table it is crystal clear that the intervener/ petitioner is having the interest in the property in question. He further submits that for the renewal of lease application has also been filed by the petitioner and others before the Deputy Commissioner contained in Annexure-3 series. He submits that even the learned trial court in the impugned order has taken into consideration of the fact that photocopy of lease deed no. 12370 dated 18.11.1991 was produced by the intervener which shows that Tarun Kumar Mallick under the branch of late Nirmal Chandra Mallick as one of the joint lessee in respect of village Noora, Thana No. 136, Holding No. 96, Plot no. 687 total area 1.80 acres. He submits that inspite of that the learned court has been pleased to reject the said petition under Order 1 Rule 10 CPC on the premise that the case is arising out of specific performance and in view of that

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the said can be maintained against the persons who are parties to agreement. He submits that in the said proposition decided by the learned court is not in accordance with law and interested person can be also a party in the specific performance case and to buttress this argument he relied in the case of “ Baluram Vs. P. Chellathangam and others” reported in 2015 AIR SCW 430. He refers to para 14 of the said judgment which is as under:-

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“14. In Mumbai International Airport (supra) this Court 5 Page 6 observed: 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 1, Rule 10(2) of the Code of Civil Procedure ("the Code", for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted be-low:

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"10. (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.” 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 questions 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.

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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 dispute 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 G 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.

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Referring to suits for specific performance, this Court in Kasturi ((2005) 6 SCC 733], held that the following persons are to be considered as necessary parties: (i) the parties to the contract which is sought to be enforced or their legal representatives; (ii) a transferee of the property which is the subject-matter of the contract.

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This Court also explained that a person who has a direct interest in the subject-matter of the suit for specific performance of an agreement of sale may be im-pleaded as a proper party on his application under Order 1, Rule 10, CPC. This Court concluded that a purchaser of the suit property

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subsequent to the suit agreement would be a necessary party as he would be affected if he had purchased it with or without notice of the contract, but a person who claims a title adverse to that of the defendant vendor will not be a necessary party.

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Let us consider the scope and ambit of Order 1, Rule 10(2), CPC regarding striking out 7 Page 8 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 motu 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."

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He submits that in view of ratio laid down by the Hon’ble Supreme Court the impugned order may kindly be set aside and the petition filed by the petitioner under Order 1 Rule 10 C.P.C. may kindly be allowed.

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Per contra, Mr. Shadab Eqbal, learned counsel for the O.P. Nos. 1 and 2 opposes the prayer and submits that the learned court has rightly decided the case against the petitioner herein. He submits that the petitioner is not the party in the agreement between the plaintiff/O.P. Nos. 1 and 2 and legal heirs and successors of Sunit Kumar Mallick. He submits that since Sunit Kumar Mallick died issueless and in view of that his brother and sister have been made party in the suit in view of that the learned court has rightly passed the order. He relied in the case of “ Kasturi Vs. Iyyamperumal and others” reported in (2005) 6 SCC 733 and further in the case of “ Vijay Pratap and others Vs. Sambhu Saran Sinha and others” reported in (1996) 10 SCC

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53.

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Relying on the above two judgments he submits that question is to be decided keeping in mind the scope of the suit and if the person taking addition to is added in such a suit of specific performance , the scope of the suit for specific performance should be enlarged that will converted into the suit for title and in view of that the learned court has rightly passed the order. On these grounds he submits that this petition may kindly be

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dismissed.

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In view of above submissions of the learned counsel for the parties, it is an admitted position that genealogical table has not been denied by the learned counsel for the O.P. Nos. 1 and 2 wherein the name of father of the petitioner is disclosed. Thus, the interest in the property of the petitioner is very much there. Further the said land is in nature of khas mahal and for renewal of the lease petitioner and others have filed petition before the Deputy Commissioner of renewal which is still pending. However, it is said that the agreement of sale of the said property was entered into between the plaintiffs/O.P. Nos. 1 and 2 and late Sunit Kumar Mallick and it has been pointed out that he has died and the suit itself was filed against the brother and sister of Sunit Kumar Mallick. Thus it is not the case that directly it is being contested between the original persons who have entered into the agreement with the plaintiffs/O.P. Nos. 1 and 2. The genealogical table further clearly suggests that the petitioner’s father is also in the family branch. Thus, the interest of the petitioner is very much there. In this background question of impleadment of a party in the suit of specific performance has to be decided looking into the facts of the each case. In the case of “Vidur Impex

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and Traders (P) Ltd Vs. Tosh Apartments (P) Ltd.” reported in (2012) 8

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SCC 384 in para 41, 41.1, 41.2 41.3, 41.4, 41.5 and 41.6 has held as under:-

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“41. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are:

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41.1. The court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit.

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41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court.

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41.3. A proper party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.

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41.4. If a person is not found to be a proper or necessary party, the court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.

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41.5. In a suit for specific performance, the court can order impleadment

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of a purchaser whose conduct is above board, and who files b application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.

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41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the court or the application is unduly delayed then the court will be fully justified in declining the prayer for impleadment."

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In the light of above judgment particularly para 41.5, wherein it has been held that the court can order impleadment of a purchaser whose conduct is above board and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.

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In the case in hand the facts as discussed hereinabove clearly suggests that interest of the petitioner is very much there in the said property and the agreement is not between the legal successors of late Sunit Kumar Mallick however, the suit has been instituted against legal heirs and successors of late Sunit Kumar who had entered into the agreement with the plaintiffs/O.P. Nos. 1 and 2.

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In the case of Baluram (supra) the Hon’ble Supreme Court has further considered the case of “Kasturi” (supra) on which reliance has been placed by the learned counsel for the O.P. Nos. 1 and 2. It has been considered that the person who has got direct interest in the property in a case of specific performance can also be impleaded as party respondent. 13. In view of above two judgments and further the facts and circumstances of the present case and the ratio laid down by the Hon’ble Court in the case of “Kasturi” (supra) on which reliance has been placed by the learned counsel for the O.P. Nos. 1 and 2, the Court finds that the petitioner herein is necessary party in the said suit as such the impugned order dated 15.06.2023 passed by the learned Civil Judge (Sr. Division)-III, Hazaribagh in Original Suit No. 57 of 2012 is hereby set aside.

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The petition dated 23.03.2023 filed by the petitioner under Order 1 Rule 10 C.P.C. is allowed. The finding on the said petition of filing in wrong provision is already decided by the learned trial court and it has been

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