Kunal Khowala vs Mina Rungta And Others

Gautam Kumar Choudhary, J

This Civil Miscellaneous Petition has been filed for quashing the order dated 02.12.2021 passed by Civil Judge (Sr. Div.)-III, Deoghar in Original Suit No.108 of 1998, whereby and whereunder the learned Trial Court exempted the plaintiff from substituting the legal heirs of defendant no.9-Kailash Prasad Khowala, as well as for quashing the order dated 08.04.2022 passed in the same case dismissing the petition for being impleaded as a party to the suit under the provision of Order I Rule 10.

One Bhagwati Prasad Khowala son of Devi Prasad Khowala instituted a suit as Original Suit No.108 of 1998 for declaration that sale deed bearing registration No.2336 dated 17.08.1998 executed by defendant first party in favour of defendant Nos.4 and 5 was illegal and void ab initio and for a permanent injunction to restrain defendants second party from alienating and encumbering the suit property. In the said suit, opposite party No.2/defendant No.4 and opposite party No.3/defendant No.5 appeared and filed written statement.

Originally, the father of present petitioner was not impleaded in the suit however, he was impleaded as defendant No.9 vide order dated 26.11.2008. The petitioner died on 13.02.2021 and due to situation arising out of Covid pandemic, the substitution petition could not be filed and after getting information, the present petition under Order I Rule 10 C.P.C. was filed which has been rejected, hence this petition.

The order rejecting the impleadment of this petitioner was passed mainly on the following grounds:

Firstly, that on 02.12.2021, the plaintiff had been exempted to substitute legal heirs of deceased defendant No.9-Kailash Prasad Khowala since he had not contested the suit, this order remain unchallenged.

Secondly, in view of the fact that the petitioner was not substituted therefore, the petition under Order I Rule 10 of the C.P.C. was not allowed.

As stated above there are two orders which have been impugned in the present civil miscellaneous petition.

First is the order by which the plaintiff has been exempted from substituting deceased defendant No.9 Kailash Prasad Khowala on the ground that he had not contested the suit.

It is submitted by the learned counsel on behalf of petitioner that the order of exemption was not correct since the defendant No.9 had contested the suit by filing the written statement. The case was posted for defence evidence and therefore the time for contesting the suit was not over.

On the other hand it is submitted by the learned counsel on behalf of the opposite party/plaintiff that petitioner for being impleaded is nothing but a ploy to delay the disposal of this case. The deceased defendant No.9 had never appeared in the court below after the filing of written statement and had also not cross-examined any plaintiff’s witness. Taking into account this fact the learned court below was right to exempt the plaintiff from impleading the petitioner in the suit.

The impugned order dated 08.04.2022 by which the petition under Order I Rule 10(2) for being impleaded has been rejected on the ground that the deceased had filed intervention petition and he had been permitted to be impleaded, meaning thereby he was accepted to be a necessary party in the suit and this petitioner being his son, therefore, has a right to be impleaded on that.

The plea of being impleaded is also canvassed on the principle of parity. It is argued that the same Court passed the order of substitution of defendant No.6- Bhagwati Devi Khowala by heirs and descendants although she had not filed written statement for declaring sale deed null and void and inoperative. Case of this petitioner impleaded for being impleaded stand on a better footing as his father had appeared and had also filed written statement.

Learned Counsel on behalf of opposite party submits that principle of parity will not apply to perpetuate an illegality which is adopted as a dilatory tactics to delay the disposal of the suit. These contesting opposite parties are the decree holder of the suit property which was acquired by virtue of registered sale deed and Partition Suit No.101 of 1964 has been decreed in their favour. Object of filing the present suit of cancellation of the sale deed is only to stall the proceedings of the execution court and therefore one after another parties are seeking their impleadment in order to procrastinate the trial. The present petition to be impleaded is also a part of that design. Merely because the father of this petitioner had been impleaded does not give this petitioner and independent right, title to be impleaded in the suit. If the petitioner claims derivative title from his father, the proper course could have been a substitution which has already been denied.

One of them Binod Kumar Khowala also filed a petition for being impleaded as party under Order I Rule 10 which was rejected by the learned Court below and order attained its finality upto Hon’ble Supreme Court. This petitioner does not have any independent right to pursue this suit being not necessary party. With regard to the plea of parity raised by the learned counsel, it is submitted that petition for impleadment on similar ground has been rejected by this Court in W.P.(C) No.2640 of 2018 and it has attained its finality after disposal of the petition by the Hon’ble Supreme Court. The instant plea for impleadment stands on the same footing.

Reliance has been placed in the case of Sushil K. Chakravarty Versus Tej Properties Private Limited reported in (2013) 9 SCC 642 in which in similar facts and circumstance where the deceased defendant stopped appearing and contesting the suit the plaintiff was exempted from substituting the deceased defendant.

The petition for impleadment is to be considered in the background of the nature of the suit, and whether the party is a necessary or proper party needs to be impleaded in the instant suit. The suit is one for cancellation of the sale deed brought by plaintiff against the said deed executed by defendant first party against defendant Nos.4 and 5 (Petitioners). The petitioner is neither the heir nor descendant of the plaintiff nor the defendants who are parties to the execution of the sale deed. Section 31 of the Specific Relief Act gives the remedy of cancellation to any person against whom such a written instrument has been executed. Such a right is available only to persons who have a reasonable apprehension that such instrument if left outstanding may cause serious injury. The heirs of the executants has a right to be impleaded but not in 3rd party who is merely an interloper in the said suit.

The petitioner is not a necessary party in the present suit and the object of being impleaded in the present suit supports the contention of the contesting opposite party that it was a delaying tactics. I do not find any infirmity in the impugned orders.

This Civil Miscellaneous Petition is dismissed.