\ ^^ai IN TME HIGH COURT OF JUDICATURE AT BILASPUR. WRIT PETITION^Art.Z27) N0. r^6Q^ of 2009 PETITIONER (Plaintiff) ^ Vs RESPONDENTS (Defendants) ^^y<v..!..: ^1'"' ^»'*' ye® \-^'<. !'-. Suresh Kothari, son of Shri Askaran Kothari, aged 48 years, Occupation-Business, resident of Sadar Bazar, Durg, Tehsil and District Durg (C6) 1. Yogendra Pal Sondhi, son of Shri J.R. Sondhi, aged 55 years, Occupation-Doctor, resident of Hduse No.24, Old Nehru Nagar East, Police Station Supela, Bhilai (C6) *b^'^~ • Y^> ^•'^6 2.5tate of Chhattisgarh, through the Collector/ Ex- Officio Secretary, Durg, Tehsil & District Durg (C(5) (Applicant a'f® 3. •tfiffl.Sangeeta Tandon, wife lication _^ ^,__; Praveen Tandon, filed under Order 1 Rule 10 aged 46 years, resident of CPC before the ^._._^ K,--, ^..- Street No.7, court. Cdncer Hospital, Smriti Nagar, Junwani, Durg. WRIT PETITION UNbER ARTICLE 227 OF THE CONSTITUTION OF INDIA ^^•-"^^•^. HIGH COURT OF CHHAmSGMlH AT B1LASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Writ Petition(227) No. 6849 of 2008 1, Suresh Kcthari Versus Yogendra Pal Sondhi and others ORDER Postfor 1604-^)10. Sd//- PrashantKumar Mishra Judge ..fc HIGH COURT OF CHHATTISGARHAT BILASPUR Sinate Bench: Hon'bte Shri Justice Prashant Kumar Mjshra Wrft Petition (227) No.6649 / 2089 PETITIONER Suresh Krthari (Plaintiff) Versus RESPONDENTS (Defendants) Yogendra Pai Sondhi and others. Shri Rajeev Shrivastava, counsel for the petitioner. Shri Basant Devrangan, counsel for respondent No.1. Shri Sanjeev Agrawal, P.L. for the State/respondent No.2. Shri Sanjay K. Agrawal, counsei for respondent No.3. WRIT PETmONUNDER ARTICLE 227 OF THE CONSTrrUTION OF INDIA ORDER ( f j& .04.2810) Tte petitioner/ptaintiff tes preferred this petition under Articte 227 of the Constitution of India to calt in question the order dated 15-<©-2009 passed by the trial Court i.e. the ^*' Additionai District Jucige (F.T.C.) Dury allowing the a^lication filed by the respondent No.3 for her Impleadment in the suit under Order 1 Rute 10 read with Section 151 of C.P.C. (2) The p^itioner/plaintiTf has preferred a suft for specifK performa.'we of agreement dated 19-11 -2003 arel for possesston of the suit !ands. The agreement was executed between the petitionw/plaintiff and respondent No.l/defendant No.1 wherein the defendant No.1 egreed to sale 3.648 hectares of agrrouttural tand to the plaintiff for a sum of Rs. 28,00,000/-. Tte agreement has t»enfited as Annexure P/2 and the plaint has been annexed as Annexure P/3. (3) The defendant No.1, in his written statement (Annexure P/4) has denied that the plaintiff is entitted to a decree for specific performance. -a.- (4) The respondent No-3 moved an applteation (Annexure P/5) under Order 1 Rule 10 read with Section 151 of C.P.C., inter a/;a submitting that the suit land betonged to her mother Smt. Neelam Sondhi (wife of defendant No.1 Yogendra Pal Sondhi) and that her mother has executed a will dated 10-07-1^7 with respect to the suit property in her favour and as such she has succeeded to the property and is the owner of the suit !and. It was stated by the respondent No.3 that she has interest in ths suit land araJ since she has never executed any agreement in favour of the plaintiff, any deciston in the suit shall affect her interest, therefore, she should be joined as a defendant in the suit otherwise she shall suffer irreparable loss. (5) The plaintiff, sn his reply Anrwxure P/6 contested the apptication fited by the respondent Mo.3 for her impteadment by stating that the wii! is forged, respondent No.3 is not a necessary party and that in a suit for specific perfonnance of the agreement no other person except those who are signatory to the agreement can be joined as party. (6) The trial Court allowed the applteation by the impugned order after finding that the respondent No. 3 is ciaiming r^ht to the property on the basis of will executed by her iate mcrther on 10-07-1987 and since the land was eartier recorded in the name of her mother, the right and entitlement of the respondent No. 3 in the suit property sn view of the provisions contained in Hindu Succession Act, 1956 needs to be examined and prima facie it appears ttet the respondent No. 3 has an interest in the suit property and if the suft proroeds without impleading ^fwr, there shaU be multiplteity of titigation and she may suffer advereety. ^s.sv^'-^ i ^l 3" (7) Leamed counsel for the petftioner has aigued that in a suit for specific perfonnance impleadment of any other person than the signatory to the agreement is not permissibte and that the trial Court has committed serious error of law and JurtedtetkMi by allowing the application fited by the respondent No. 3 under Order 1 Rule 10 read with Section 151 of C.P.C. he has relied on the judgment rendered by Hon'trie the Supreme Court in 2005 (6) SCC 733 Kasturi Vs. tyyam{ vumal ancf Otftere, 2007 (•10} SCC 82 Samatibal and Others VSs. Paras finance Co. and Ottiers and 2008 (4) Current Civil Cases 173. (8) Per corrtra, the leamect counsel for the respondents have argued that on the strength of witl executed by her mother vrtio was the oivner of the property, the respondent No. 3 has an interest in the suit property and that no prejudice wil! be caused to the plaintiff by mere impteadment of the respondent No. 3, instead it vril! avokl muttiplteity of the JitigatiQn. He has relied on Razia Begum Vs. Sahebzadi Anwar Beyim and offrers AIR 1858 SC 886, Rainesh Hiischand l^indanmal Vs. Vkinicipal Coiporation ofGreaterBom&ay and offiers ('1992) 2 SCC 524 and Md. SabirAnsart Vs. Sada Waoda Mandal & Ois. MR 2010 Jftaridiand 43 (9) Before proceedir^ to examine the substance of the argument actvanced by the parties, it is apt to refer to the judgment passed by the Hon'ble Supreme Court with regard to the scope of interference in a petition under Arttefe 227 of the Const'rtutfon of Iralia. Hon'ble Supreme Court sn the case of Celina Coelho Pereira (Ms) anef (Wier Vs. Ulhas Mahabalesfmar Kholhar and others (W10) 1 -<<,. '•tS^c^ ..^" '< .^^ --4 SCC 217 has held in paras 30, 31,32 & 33 to reiterate the scope of interference in a petition under Articte 227 of the Constitution of india which is extracted herein under;- "30. In Bathutmal Ratehand Oswal v. Laxmibai R. Tarta, (1975) 1 SCC 858 ttiis Courthekl: (SCC p. 865, para 7) "7. ... The High Court cannot m guise of exerdsing its jurisdiction underArticle 227 convert itself inta a court of appeal when ths legi^ature has not conferred a right of appeal and rnade ff?e decision ofthe subordinate court or tribunal fjnal on facts." 31. In State v. A/a^ Sandhu, (2003) 6 SCC 641 : 2003 SCC (Cfi) 1545 this Court exf^ained the power of fhe High CourtunderArGcte 227 thus: (SCC pp. 656-57, para 28) "28. Thus the law is that Article 227 of the ConsGtution of India gives the High Court the power of siiperintendeRce over all courts and tribunals throughout the territories in relation to which H exercises jurisdicSQn. This Juiisdiction cannot be limitect or fettered by any Act of the State Legisfatiire. The supenasoiy juriscBcffon extends to keefxng ffie subonSnate tribunais wifffin the limits of their aiithority and to seeing that they obey ffise law. The powers uncter ArBcte 227 are wcte and can be used, to meet ffie ends of/usGce. They can be used to inteifere even wSh an interlocutory ofder. However the power uncfer ArScle 227 is a discreSonar/ power and it is cSfficult to attiibute to an order of the High Court, such a sou/ce ofpower, when the Hgh Couft stself cfoes not sn terms pufport to exercise any such discreVonary power. It is settied law that ffiis power of judicial superintendence, under Article 227, must be exerctsed sparingly and onty to keep subordinate courts and ; tripunals withln the bounds of their authonty and not to ; correct mere errore. Further, where the statute bans the ^ £*'--,; 3 ^-•-y 'svs-.ss'iii''''' K exercfee of rew&onal powere ff woukl require vsry excepSonal circumstances te warrant interterence under ArMe 227 ofthe Constitution of IncSa since the power of supesrinteftdence was not meant to wcumvent statutory law. It is setSefl law that tfie jurisdiction wder Artsde 227 couki noi be exercised 'as ff)e cfoafr of an appeal in cSsguise'." 32. The aforesaid two dedsions and few other deci&ons, fiamely, Chandavaritar Sta Ratna Rao v. A^atata S. Guram, (19W) 4 SCC 447, State of Maharashtra v. Mitind, (2001) 1 SCC 4 : 2001 SCC (L&S) 117 and Ranjeet Singh v. Ravi Prakash, (2004) 3 SCC 682 came to be consdered by ffiis Court in Shamshad Ahmad v. Tilak Raj Bajaj, (2008) 9 SCC 1 and this Court held: (filak Raj case, (200B) 9 SCC 1, SCC pp. 10-11, para 38) "38. Though fwwers of a High Court URder Artsclss 226 and 227 are very wide and extensve over all oourts and trikwafs thioughout the territones in relation to which it exerc»sesjunsdictson, such powers must be exercised within the lifwts of taw. The power is supervisory in naturs. The Hyh Court does not act asa cotirt ofappeal or a court of error. It can neither review nor reappreaate, nor reweigh the ewdence upon which detemsnation of a subordinate court or inferior tribunal purports to be based or to corrwt errors of fact or aven offaw and to subsStute its own decision for that of the inferior ccwrt or tribunal. The powere are required tc be exe/vised most sparingly and Qfily in appropriate cases in order to keep ttie subonSnate courts and inferior tribunals within the fimits oflaw." 33. ln the light of the aforesaid legal position conceming jurisdiction afthe High Gourt mderArtide 227, which ffie High ^^pourt falled to keep in rfsnd, S must be hekl that in fte ifacte and circiimstances oftte caseand the ftndings recorafed by the -6- Adcfftionat Rent Controtler as well as the Adirsnistrative Tritwnal, the High Court was notjustiRed in mterfering wiffi the concurrent orders ofewcSon based on the ground of sub-letfsng in exercise of its power URder Article 227 ofthe ConsStution of India." tn the matter of Subotlh Kumar Gupta ancf otftens Vs. Alpana Gupta and offtefs reported in 2005 11 SC 578, the Hon'bte Supreme Court, white deating with a similar case retating to exerdse of the jurisdiction under Order 1 Rute 10 of C.P.C. and seope of interference m such mattsrs under Articte 227 of the Const'rtutton of India has held thus:- "3. Having heard the leamed cQunsel for the parties, we are saffsffed ttiat the orafefpassed by theHyh Court cannot be siistained. The trial Court had sxercised ite discretion and assigne'd reasons for permitGng smpleadment. fn exercise of .limited jurisdicten conferred by Arffcle 227, the High Court should not have intertered with Uie cdscreffon exercised by the tnal court. Even othetwse. havmg heard the leamed counsef for the pafSes, we are satisfied that ttse implsadinent of wffe, daughter and HUF of Subodh Kumar Giipta is jusWed on the facts and in the circiimstances offfie case' (10) Wfth regard to the nature of power arei jurisdiction available to a Court in the matter of addition of parties under Orcter ^ Rule 10 of C.P.C. the Hon'ble Supreme Court in AIR 1958 SC 886, Rasa Begum Vs. Sahebzadi Anwar Beyim and offiers has heM thus in paragraph 13:- "{13} As a resulf of these con&derations, we havs arrived at theWtowing conclusions : (1) That the quesiwin of addition of partses under l.lOofO. 1oftheCQ(teofCivilProceclure. is generally not \^^^ one of initial jurisdicffon of the court, but of a judicial ''^•B-.. •••vy -7 cffscreffon which has to be exercised in a view of al! fhe facts and circumstances of a parSwlar case; but m some cases, it may /•afee controver&es as to the power o/ e court, in contradistinction te its inherent juris<Sction, or, m other words, ofjurisdicSon jn the limited sense in which it is usecf inS. 115oftheCode; (2) That m a suit relating to pmperty, in order that a person may be acfefeaf as a party, he shoukl have a direct interest as distinguished frofn a commeisial stterest, in the subject-matter ofthe litigation; (3) Where the subject-matter of a litigation, ss a dedaration as regards status ora fegal character, the nile of present or direct interest may be retexed in a suitable case where the court is of the opinion thai by adding that party, it woutd be in a better posffion effectoa/fy and completely to acyudicate upon the controversy; (4) The cases contemp/ated to the fast fH'opositson, have to be deterrrvned in accordance with the statutoiy provisions ofSs. 42 and 43 afthe Specsfw ReliefAct; (5) In cases covered by thase statutory provisions, the court is not bound to grant the dectaration prayed for, on a mere admission ofthe claim by the detenctant, if the court has reasons to in&st tipon a clear proof apart from ff»e atfffsssfon; (6) The fesiilt of a declaratory decree on the qiiestion of status, such as SR confroverey 'm the instant case, affecfe not only the parties actuaily before the Court, but generatfons to come, and m view of that sonaderation, the mle of 'present interesf, as evoh/ed by case /aw relating to cKsputes aboutproperty does not apply with full foive; and (7) The nile lakl down m S. 43 af the Specific ReliefAct, is not exactly a rule offesjudicata. It is narrower in one sense andwidenn another." ••»<»> Wf' -^ •8- (11) Relying on the judgment delivered by the Hon'ble Supreme Court IR Razia Begum (Supra), ft has been held in Ramesh W&acftancf Kundanma! Vs. Municipal CorpQFatlon of Greater Bombay ancf offiers (199^ 2 SCC 524, that a person can be added as a party when her or his presence is required to effecth/ely and completely settle the matter in dispute. (12) In the matter of Kasturt Vs. fyyampeniroaf and Others 2005 f6) SCC 733 the Hon'ble Supreme Court has held that in a suit for a specific performance a third party or strar^er cannot be added. However in a later case b^ween Sumatfbai and Others Vs. Paras Finance Co. and Offiens 2007 (10) SCC 82, the Hon'ble Supreme Court has exptained the principte laid down in Kasturi's case (supra) and has held thus !R para 14:- 1n wew ofthe aforesaid deciaons we are ofthe opinion that Kasturi case 20W ft) SCC 733 Kasturi Vs. ly^impemmal and Othws is cfesriy tfsffngu/shabte. te ou,r opfmon it cannot be laid down as an absolute proposition that whenever a suit for speciRc perfoffnance ;s ffed by A against S, a third party C can never be impleaded in that suit. In ow opmfon, sf C can shaw a fair semblance of title or interest he can certainly ffle an application for impfeadment To take a contrary view wou/d lead to mulVplicity of procee^ngs ftecause then C will have to wait tintil a decres /s passed against B, and then f&e a suit for canceVation of the ctecree on fte ground that A had no t'stte in the property in (Sspute. Cleaity, such a wew cannot be countenanced." (13) From the documents appended wfth the writ petition it appears that the land was eartier recorded in the ovmership of Smt. Neelam Sondhi the mother of respondent No.3 whose applteation for addition as a v y '•^-^v; -^ .^•.r;;^S.Siiw' L ^ L- -5- defendant has been aUowecl. Accordti^ to the respondent No. 3 her mother has exwuted a will in her favour and she is entitled to succeed to the property, therefore, it cannot be said that the respondent No. 3 has absolutely no interest inthe outcome of the present suit. The respondent No. 3 may be a stranger to the contract of sate but being the daughter of the owner of the land, she is entitled to her aAlition so that the sust may be effectivetyand completely adjudteated and to avoid the muttiplieity of litigation. IVloreover,thisCourt,understslimttedjurt^ltetionyrKierArtk;le 227 of the Constitution of india, may nrt interfere in a case where the triat Court has exercised its judteial d'tscretton under Order 1 Rute 10 of C.P.C., as teld jn the case of Razia Segum (supra). The Hon'Me Supreme Court has l^d in the case of Softocfh miar Gufrta (supra) that the High Court, in exeretee of fts linuted jurisdtetion under Artfcte 227 of the Constitution of tndia, shouM nonnally not interfere with the judicial discretion exercisect by the trial court in the matter of addition of parties. (14) The instant petftion thus faite and is hereby dismissed. Sd//- ,_ prashantKun^ taa Judge _A 1t-