Moazzam vs Swapan Kr. Sadhukhan and Others

Subrata Talukdar, J.—Order dated 16th September, 2010 passed by the Ld. 4th Civil Court (Junior Division) at Howrah in Title Suit (for short T.S.) No. 208 of 2006 in the matter of Swapan Kr. Sadhukhan v. Howrah Municipal Corporation is under challenge in the present revisional application.

By the said order impugned the Ld. 4th Civil Court was pleased to consider the application filed by the petitioner in connection with T.S. No. 208 of 2006 under Order 1 Rule 10(2) CPC for adding herself as a party-defendant in the said Title Suit.

In her application under Order 1 Rule 10(2) CPC filed through her constituted attorney the petitioner contended that she is a necessary party to the suit having purchased 21 cottahs of land in holding No. 141, Salkia School Road, P.S.-Golabari, Dist.-Howrah in an auction sale in connection with Title Execution Case No. 18 of 1957. It was further contended by the petitioner that her property was acquired by HIT, but no award has been yet paid to her. Claiming herself to be the lawful owner of the suit property the petitioner wants to be impleaded.

In his written objection to the application under Order 1 Rule 10(2) CPC, the present Opposite Party 1(for short O.P. 1)- plaintiff objected to such impleadment on the ground that the petitioner has no manner of right, title and interest to the suit property. The O.P. 1-plaintiff claims to be the exclusive owner and prays for a decree in connection with T.S. No. 208 of 2006.

The Ld. 4th Civil Court was pleased to consider and hold that prima facie the petitioner is found to be one of the assessees in relation to the acquisition of the suit property being L.A. Case No. XI/34 of 1968-69. However, in spite of recognising the prima facie status of the petitioner in relation to the suit property, the Ld. 4th Civil Court was of the further opinion that in view of the prayers made in T.S. 208 of 2006 primarily against the defendants No. 1 & 2 being the Howrah Municipal Corporation and the Howrah Improvement Trust, i.e. the acquirers of the suit property there is no scope of passing any decree regarding the ownership of the suit property and so also the amount of compensation to be paid to the O.P. 1 - plaintiff.

According to the Ld. 4th Civil Court the scope of T.S. 208 of 2006 is restricted to determining whether the defendants No. 1 & 2 must be restrained by any order of permanent injunction from making any act of development over the suit property which has already been acquired. In such view of the matter the Ld. 4th Civil Court did not find the impleadment of the present petitioner to be necessary and hence dismissed the application under Order 1 Rule 10(2) of the CPC.

Sri S.P. Mukherjee, Ld. Senior Counsel appearing for the petitioner draws the attention of this Court to order dated 8th April, 2008 also passed by the Ld. 4th Civil Court in T.S. No. 111 of 2008. The said T.S. No. 111 of 2008 was filed by the present OP-plaintiff praying for declaration of his right, title and interest over the self-same suit premises. In the said T.S. No. 111 of 2008 the present petitioner also prayed for being impleaded as a party defendant on the same ground as agitated by her before the Ld. 4th Civil Court in T.S. 208 of 2006.

Apprising this Court of the contents of T.S. 111 of 2008 Sri Mukherjee points out that the Howrah Municipal Corporation (for short HMC) and the Howrah Improvement Trust (for short HIT) were impleaded as defendants No. 1 & 2 and the suit was one for declaration and injunction. The prayer made in the suit are, inter alia, as follows:--

"a) That the present OP 1-plaintiff is the lawful occupier in respect of the suit premises being holding No. 141, Salkia School Road, P.S.-Golabari, Dist.-Howrah;

b) Declaration that the HIT has no right to acquire the suit premises and such acquisition is therefore illegal;

c) Permanent injunction restraining defendant No. 2 - HIT, their men and agents from making any unauthorised structure over the suit holding and further not to make any addition, alteration over the suit premises;

d) Directing the defendant No. 1-HMC to sanction the building plan in favour of the present OP1-plaintiff for making construction over the suit premises; ad interim injunction and other reliefs."

Vide Order dated 8th April, 2013 the Ld. 3rd Civil Court was pleased to consider the application of the present petitioner under Order 1 Rule 10(2) CPC for being added as a party to T.S. No. 111 of 2008. The Ld. 3rd Civil Court upon consideration of the rival submissions was pleased to arrive at the finding that the record shows that the present petitioner has an interest in the suit premises. Both the present OP1-plaintiff and the defendant-HIT have contested the right to be impleaded urged by the petitioner on the ground that after acquisition of the suit property on behalf of the HIT, the ownership of the suit premises was transferred in favour of HIT and the dispute raised in T.S. No. 111 of 2008 is, inter se, between the OP1-plaintiff, who claims to be the occupier and the HIT, who is the acquirer.

The Ld. 3rd Civil Court was, however, of the considered opinion that the prima facie status of the present petitioner qua the suit premises being recognised, in the event the petitioner is denied impleadment the same would result in multiplicity of proceedings. The petitioner, in such an eventuality, is likely to come up with a separate suit. Furthermore it was undeniable that the petitioner is a necessary and a proper party to the said suit No. 111 of 2008.

Accordingly, the Ld. 3rd Civil Court was pleased to hold and order as follows:--

"that the prayer in the application u/o. 1 R/10(2), C.P.C. is allowed on contest but without any order as to costs and the said application is accordingly disposed off.

Let the name of "Razia Sultana through her constituted Attorney Md. Moazzam" as mentioned in the Schedule to the instant application be incorporated in the cause title of the plaint as the Added Defendant No. 3.

The Plaintiff is directed to serve copies of plaint and injunction application before the next date upon the added defendant No. 3 who shall file her written statement by the next date.

It appears from the record that the plaintiff''s application u/O. 39, Rules 1 and 2, C.P.C. is pending. Therefore, 30.04.2013 is fixed for filing of the written statement by the added defendant No. 3 and for hearing of the injunction application."

It does not appear from the records and neither it has been pleaded by the Ld. Counsel that the said order dated 8th April, 2013 in T.S. No. 111 of 2008 was challenged by the present OPs. Therefore, the acceptance of the petitioner as an added party defendant in T.S. No. 111 of 2008 attained finality.

It appears to the mind of this Court that T.S. No. 208 of 2006 contains prayers which are connected to the prayers in T.S. No. 111 of 2008. In T.S. 208 of 2006 the present OP-plaintiff has prayed for an Order of injunction restraining the defendant-HIT from making any construction over the suit premises till the right of the OP-plaintiff to receive compensation is decided. It is relevant to reiterate here that in T.S. 208 of 2006 the present OP-plaintiff has claimed to be the exclusive owner of the suit premises and therefore has also claimed compensation as a whole in relation to the said suit premises.

Sri Chakraborty appearing for the OP1-plaintiff has argued that the prayers in T.S. No. 208 of 2006 and in T.S. No. 111 of 2008 are distinct and different. He further argues that the case of the present petitioner is, prima facie, relevant only in determining the extent of compensation receivable by her from the Land Acquisition Collector (for short L.A. Collector).

Taking this Court through the objection filed by the defendant No. 2-HIT to the application under Order 1 Rule 10(2), Sri Chakraborty points out that the present petitioner has been alleged to be the owner of the suit property. The HIT has further contended that the suit property was acquired by the L.A. Collector and pursuant to such acquisition the HIT has taken possession over the same and continues to be its owner. The list of awardees of the compensation amount has already been declared/published and beyond such fact the present petitioner can have no right of audience in T.S. 206 of 2008 which is a bilateral dispute between the present OP1-plaintiff and the HIT.

Taking this Court to Sections 18(1) and 31 of the Land Acquisition Act, 1894 Sri Chakraborty submits that the remedy available to the present petitioner as an awardee of the compensation amount is separately prescribed by law. Such remedy is not available to the petitioner by being added as party to T.S. 208 of 2006.

Heard the parties. Considered the materials on record.

At the very outset this Court notices the contents of the supplementary affidavit filed on behalf of the petitioner. Such supplementary affidavit has been brought on record by an order of this Court dated 15th January, 2014.

From a perusal of the Order dated 8th April, 2013 this Court finds that the Ld. 3rd Civil Court while allowing the application of the present petitioner under Order 1 Rule 10(2) CPC has considered the respective pleadings of the parties. To the mind of this Court the objections raised by the present OP-plaintiff and the HIT to the application of the petitioner under Order 1 Rule 10(2) CPC both in T.S. No. 208 of 2006 and T.S. No. 111 of 2008 are similar.

This Court is of the further opinion that prayer (c) of T.S. No. 111 of 2008, which has already been quoted above in this judgment is an additional/consequential prayer to the main prayer for declaration of the plaintiff''s status. Such additional/consequential prayer for injunction is for restraining the defendant No. 2/HIT to make any construction over the suit premises pending the declaration of the status of the OP1/plaintiff.

From a perusal of the order impugned dated 16th September, 2010 and from the other documents on record, it is apparent that T.S. No. 208 of 2006 is for a decree of injunction against the defendants No. 1 & 2, i.e. HMC and HIT not to make any development over the suit premises without paying compensation to the present OP1/plaintiff.

It thus appears that there is parity in the reliefs prayed for by the present OP1/plaintiff in the prayer for injunction made in T.S. 111 of 2008 and the restraint order sought for against HIT and HMT in T.S. No. 208 of 2006.

In such view of the matter once the impleadment of the present petitioner is recognised and allowed in T.S. No. 111 of 2008 there should not be any reason for refusing impleadment in T.S. No. 208 of 2006 having regard to the parity of reliefs claimed by the present OP1/plaintiff in both suits.

This Court also notices that the Ld. 3rd Civil Court while allowing the impleadment of the present petitioner in T.S. No. 111 of 2008 considered the prejudicial effect of multiplicity of proceedings. To the further mind of this Court once the petitioner has been impleaded as a party in T.S. No. 111 of 2008 and such impleadment is accepted by the present OPs, on a parity of reasoning and to avoid multiplicity of proceedings refusal of a similar relief in T.S. No. 208 of 2006 ought to be the exception instead of norm. The rationale behind Order 1 Rule 10(2) CPC shall be frustrated if the present petitioner is compelled to file a separate suit thereby leading to multiplicity of proceedings. It is further necessary that for complete and effective adjudication the petitioner ought to be allowed to ventilate her grievances in T.S. 208 of 2006.

For the above mentioned reasons the order impugned dated 16th September, 2010 is set aside. The application filed by the petitioner under Order 1 Rule 10(2) CPC stands allowed and the petitioner shall be added as party-defendant to T.S. No. 208 of 2006. The Ld. Trial Court shall proceed with the suit thereafter in accordance with law.

CO 3740 of 2011 is accordingly allowed.

There will be, however, no order as to costs.

Urgent certified photocopies of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.