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Judgment
P.P. Bhatt
The present interlocutory application has been filed by intervenor under order I Rule 10 read with Section 151 of the CPC for impleading them as party respondents in the appeal. According to the learned Counsel for the interveners the present appeal has been filed by the defendants appellants against the judgment and decree dated 15.12.2011 passed by the learned Senior Civil Judge in Title Suit No. 76/2006, whereby the decree has been passed in favour of the plaintiff in respect of the suit properties.
Learned Counsel for the applicants submitted that a title suit being Title Suit No. 92/2010 has been filed before the learned Sub-Judge-I, Dhanbad for specific performance of the agreement dated 24.6.2008 and the agreement dated 5/10.9.2008 and the said suit has been decreed in terms of the joint compromise petition dated 28.5.2011, filed by the parties to the suit and accordingly, the said joint compromise petition including annexure were directed to form part of the decree.
According to Mr. P.K. Prasad, learned Sr. Counsel appearing on behalf of the intervenor-applicant the parties to the said compromise are required to comply with all the terms and conditions of the compromise decree in Title Suit No. 92/10 and the present respondents-plaintiff had no lawful reason or excuse for not executing and registering the deed of sale in respect of the properties involved in the said suit in compliance of the terms of the compromise decree which is binding and effective.
It is further submitted that the suit property described in schedule of the plaint in Title Suit No. 92 of 2010 is the same property which has been described in schedule attached to the plaint in Title Suit No. 76 of 06, the decree passed in Title Suit No. 76/06 is the subject matter of this appeal. Learned Sr. counsel further submitted that the present applicants are necessary and proper party to the present proceedings as their rights is likely to be affected, if they are not joined as party respondent in the appeal and are not heard on merits of the case. It is further submitted that the presence of the present interveners applicants are also necessary for the complete and effective adjudication of the issues involved in the matter.
As against that the learned Counsel appearing for the appellants by referring counter affidavit filed against this application, submitted that the appellants of the present appeal were not arrayed as party in Title Appeal No. 92 of 2010, despite the knowledge of fact that the present appellants were contesting the title suit No. 76/2006 as defendant.
It is further submitted that the suit for specific performance of contract does not lie against any document, which is not registered and hence the specific performance of contract cannot be claimed on the basis of agreement and Beyana Patra. It is submitted that the said title suit No. 92/10 was itself in bad in law and was not maintainable and the compromise decree obtained in the same is collusive in nature and is not binding upon the appellants. It is further submitted that the compromise decree passed in said Title Suit No. 92/10 is a judgment in personal and the same is not binding upon the appellant in any manner whatsoever. It is further submitted that the appellants have come to know that the collusive compromise entered into between the parties of Title Appeal No. 92/10 is only with a view to frustrate the claims of these appellants before the court below. It is also submitted that the Title Suit No. 92/10 of a different cause of action of altogether and therefore, the intervenors should not be included as party in the present appeal. It is lastly submitted that the respondents in the present appeal have illegal executed the sale deed of land in question and are facing contempt of court proceedings, clearly shows that the intervenors-applicants and the respondents are all hands in glows with each other in order to disturb the peaceful possession of the appellant to defeat the appellants cause which is Subjudice before the Court and therefore, the intervention application may be rejected.
Learned Counsel appearing for the respondents in the present appeal submitted that the intervenors'' application is not maintainable as the applicants are not concerned in any manner with the proceedings of the present first appeal, which has been arisen out of the Title Suit No. 76/06. Learned Counsel appearing on behalf of the respondents by referring the order of title appeal No. 76/06 pointed out that the attempt was made by the intervenors to intervene in Title Suit No. 76/06 but intervention petition filed under order 1 Rule 10 of the CPC has been rejected by the learned court below. Therefore, the intervenors have no locus whatsoever in the present appeal.
Considering the aforesaid rival submissions of the learned Counsel of intervenors, learned Counsel for the appellants and the learned Counsel for the respondents and from perusal of the intervention application and the reply filed by the appellant in response to the said intervention application, it appears that the present appeal has been preferred against the judgment and decree passed in Title Suit No. 76/06. The present intervenors have also filed Title Suit No. 92/10 in respect of the property, which has been described as the suit property in schedule attached to the title suit No. 76/2006. It appears that the Title Suit No. 92/10 has been decreed in terms of the compromise arrived at between the parties. The order-sheet of Title Suit No. 92/10 is annexed vide Annexure-A to the intervention application and a copy of the order dated 16.6.11 passed in Title Suit No. 92/10 is also annexed vide Annexure-1 to this intervention application clearly indicate that the suit is decreed on the basis of the joint compromise petition.
On perusal of schedule, which is annexed as Annexure 1/1 to this I.A. and the schedule attached to the decree passed in Title Suit No. 76/06, it appears that the properties described therein are the one and the same. The present appeal is filed against the decree passed in Title Suit No. 76/06. Since the suit property described in schedule of both the title suits is one and the same, I find substance in the argument advanced by the learned Counsel for the intervenors that the intervenors are vitally interested in the present appeal and they are necessary and proper party to the present appeal so as to decide the real issue/controversies involved in the matter completely and effectively.
The arguments advanced by the learned Counsel for the appellants as well as respondents opposing this application can not be accepted in view of the above discussion and more particularly, in view of the fact that the properties described in schedules were common in both the title suits. The argument advanced by the learned Counsel for the respondents with regard to rejection of intervention application filed during the pendency of Title Suit No. 76/06 is concerned, the same shall not have any bearing as the circumstances have changed thereafter and the Title Suit No. 92/10 has been decreed in terms of compromise arrived at between the parties. Moreover, learned Counsel for the applicants-intervenors have made it clear that they will not try to cause any delay in hearing of the appeal and the intervenors will confine their argument to safeguard the interest in respect of the properties claimed by them, on the basis of the compromise decree.
Under the circumstances, it appears that the present intervenors are necessary and proper party to the present appeal and they are required to be impleaded as party respondents in this case. Accordingly, the intervention application is allowed. The intervenors are ordered to be impleaded as party respondents in this case. Let the necessary amendment be carried out accordingly in the cause tile of the appeal. A copy of appeal as well as counter affidavit, if any, filed in the matter be provided to the learned Counsel for the intervenors.
Accordingly, I.A. No. 2762/2012 stands disposed of.
I.A. Nos. 956 and 1554 of 2012 In F.A. No. 43/2012
Put up these I.A.s after Puja Holidays i.e. on 02nd November, 2012. Till then, ad interim order dated 23.3.2012 shall continue.
F.A. No. 43 of 2012
The present appeal has been filed being aggrieved and dissatisfied with the judgment and decree dated 15.12.2011/6.1.2012 passed by Senior Civil Judge-I, Dhanbad in Title Suit No. 76 of 2006, whereby the suit has been decree in favour of the plaintiff-respondents.
It appears from the order sheet on 23.3.2012, the following order was passed:-
23.03.2012 Notices have been accepted on behalf of contesting respondent Nos. 2, 6 & 7 by Mr. A.K. Sahani.
Submission is that he has received instruction on telephone and he will be filing Vakalatnama within three days.
Notices need not be sent on them.
Steps shall be taken to serve the respondent Nos. 1, 3, 4, 5, 8 & 9 by registered post within one week.
Call for the Lower Court Records from the court concerned.
I.A. No. 956 of 2012
Notices have been accepted on this I.A.
Steps shall be taken to serve the other respondents regarding I.A. No. 956 of 2012 as well.
Submission of the learned Counsel on behalf of respondent Nos. 2, 6 & 7 is that no execution proceedings are initiated but it is contended on behalf of appellant the respondents on the strength of the impugned judgment and order are trying to take forceful possession. Learned Counsel has tried to demonstrate this assertion from documents.
Taking all these facts and circumstances into consideration, I am of the view that since the appeal is admitted, respondents shall maintain status quo, meanwhile. The authorities shall ensure compliance of the interim order.
Copies shall be supplied by the learned Counsel of the appellant to the learned Counsel.
I.A. No. 956 of 2012 stands disposed of
Learned Counsel for the respondent submitted that on 23.3.2012, the appeal was not admitted by this Court, It is also submitted that there was no decree on the date of passing of the said order.
As against this, the learned Counsel for the appellant submitted that the lower court records was called for by this Court by the order dated 23.3.12, which itself indicates that the appeal was admitted and respondents were directed to maintain the status qua. Considering the aforesaid rival submissions of the parties, put up this case along with interlocutory applications as aforesaid on 02nd November, 2012 under the heading "For Orders".