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Judgment
This interim application has been filed by an intervener in the First Appeal, seeking a prayer to be added as a party respondent no.8 alongwith a prayer, to condone the delay in filing the interim application.
I have heard counsels for all the sides and with their help, I have gone through the documents on the record and the authorities relied upon by them.
The case of the applicant is that he is a necessary, proper, and affected party. Hence, he should be joined as a party respondent. It is submitted that the applicant father had got, right, title and interest in the suit premises from one Mr. Mohammad Hussain Merchant. The said Mr. Mohammad Hussain Merchant got interest in the suit premises, since there was agreement of sale dated 20 April 1988, with respondent nos.2 to 8 (Navalkars’). Since there was dispute between respondent nos. 2 to 8 (Navalkars’) and Mr. Mohammad Hussain Merchant, he filed a suit in Bombay High Court being Suit No. 1811 of 1994. In the said suit, on 6 December 2006, there was a decree passed against respondent nos. 2 to 8. Since the respondent nos.2 to 8 were dissatisfied with the decree, they filed two separate First Appeals before this Hon’ble Court at its Original Side. In First Appeals, on 17 March 2008, consent terms were entered into by respondent nos. 2 to 8 with Mr. Mohammad Hussain Merchant, thereby conforming the decree passed in the suit.
Since Mr. Mohammad Hussain Merchant got right, title and interest in the suit premises, he executed a conveyance, dated 31 January 2009 with the present applicant’s father Mr.Kirit Vallabhdas Mehta. The applicant on the strength of a Letters of Administration is seeking his right, title and interest in the suit premises.
The applicant’s father died on 4 July, 2014. The applicant thereafter filed Testamentary Petition seeking Letters of Administration with respect to estate of his late father. On 18 February, 2023, the Letters of Administration was granted. At the same time, a suit was filed in the Bombay City Civil Court by the appellants herein in the Bombay City Civil Court being S.C.Suit No. 2112 of 1981. The said suit was dismissed by a judgment and decree dated 27 April 1992. The suit filed by the present appellant was challenging an order dated 23 December, 1980, passed by the Estate Officer. de-requising the suit premises in favour of the respondent nos. 2 to 8.
Being dissatisfied with the said judgment and decree, the present First Appeal has been filed by the original plaintiff in the year 1994. However, the First Appeal was numbered after the condonation of delay application was allowed in the year 2006. During the pendency of the First Appeal in the year 1994, said Mr. Mohammed Hussain Merchant entered into an conveyance with the father of the present applicant. The present applicant is seeking his right, title and interest through Mr. Mohammad Hussain Merchant, and the said Mr.Mohammad Hussain Merchant had claimed his title through respondent nos. 2 to 8.
Ms. Naik, Learned counsel appearing for the applicant submitted that under the provisions of Order I Rule 10(2), the present applicant will be a necessary party to decide the dispute between the parties. If the present applicant is added as a party respondent, it will also save the future proceedings and avoid multiplicity of proceedings and save the time of the parties and the Court. She submitted that if the respondent to the appeal do not contest the appeal, it will adversely affect the rights of her client. She relied upon the following judgments :-
The judgment of Supreme Court in case of Razia Begum vs. Sahebzadi Anwar Begum & Ors., 1958 SCC OnLine SC 77.
The judgment of Supreme Court in case of Savitri Devi vs. District Judge, Gorakhpur & Ors., (1999) 2 SCC 577.
The judgment of Supreme Court in case of Udit Narain Singh Malpaharia vs. Additional Member Board of Revenue, Bihar & Anr., 1962 SCC OnLine SC 130.
Mr. Ghelani, learned counsel appearing for the original appellant, opposing the interim application, submitted that the provisions of Order I Rule 10 allows the plaintiff or the defendant to make an application to join parties. The court can also, if it is convinced, can add parties, however, the fourth concept of intervener is not recognized by law. If the applicant is claiming any rights, he can file his independent suit, but cannot seek any relief in the present proceedings. There is an unexplained delay in preferring the present interim application, as from the proceedings before this court, it can be seen that an FIR has been lodged in the year 2015 by the applicant, and there is no explanation why the applicant waited till the year 2025 to file the present interim application to join them as a party. He further submitted that it is only the plaintiff appellant herein who will decide who should be the party respondent to the First Appeal. The appellant is in possession of the suit premises. He submitted that there is no merit in the present application and it requires to be dismissed. He relied upon the following authorities :-
The judgment of Supreme Court in Civil Appeal arising out of SLP (C) Nos. 6024-6025 of 2022), NAK Engineering Company Pvt. Ltd. vs. Tarun Keshrichand Shah & Ors.,
The judgment of Supreme Court in case of Kasturi vs. Iyyamperumal & Ors. reported in (2005) 6 SCC 733,
The judgment of Supreme Court in Civil Appeal arising out of SLP (C) No. 35321 of 2016), Mohamed Hussain Gulam Ali Shariffi vs. Municipal Corporation of Greater Bombay & Ors.,
The judgment of Supreme Court in Civil Appeal Nos. 5522-5523 of 2019 Gurmit Singh Bhatia vs. Kiran Kant Robinson & Ors.,
Mr. Delhiwala, learned counsel appearing for the respondent nos. 1, 5 and 6 submitted that the present applicant is not in possession of the suit premises and there is no cause of action arise for him to file the present application for intervention. The interim application has been filed as late as on 9 April 2025. The conveyance in favour of the present applicant is irrelevant. The law laid down in the judgment of Savitri Devi (supra) and in NAK Engineering (supra), goes against the present applicant. Hence, the application should be rejected.
Ms. Naik in rejoinder submitted that the consent Minutes of the Order are at Exh. ‘B’ and ‘C’ to the interim application. As the respondent nos. 1, 3 and 5 are opposing her application, this is all the more reason that her application should be allowed, because the applicants are claiming their right through one Mr. Mohammad Hussain Merchant and the said Mr. Mohammad Hussain Merchant is claiming his right through respondent nos. 1 to 8 and the lawyer appearing for the respondent nos. 1, 3 and 5 is today opposing her application, which means rights, which have accrued in her client's favour, will not be protected by respondent nos. 1, 3 and 5 (Navalkars’).
As per the provisions of Order 1 Rule 10 (2) of the CPC, a party can be added by the Court at any stage of the proceedings. In Pankajbhai Rameshbhai Zalavadiya vs. Jethabhai Kalabhai Zalavadiya (deceased) through LRs. & Ors. reported in 2017 (9) SCC Page 700, the Supreme Court held that Order 1 Rule 10 of the CPC enables a person to add any person as a party at any stage of the proceedings. If the person who is present in Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Para no. 10 of the said judgment reads as under :
10)Order 1 Rule 10 of the Code enables the Court to add any person as a party at any stage of the proceedings, if the person whose presence in Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision. Order 1 Rule 10 of the Code empowers the Court to substitute a party in the suit who is a wrong person with a right person. If the Court is satisfied that the suit has been instituted through a bona fide mistake, and also that it is necessary for the determination of the real matter in controversy to substitute a party in the suit, it may direct it to be done. When the Court finds that in the absence of the persons sought to be impleaded as a party to the suit, the controversy raised in the suit cannot be effectively and completely settled, the Court would do justice by impleading such persons. Order 1 Rule 10(2) of the Code gives wide discretion to the Court to deal with such a situation which may result in prejudicing the interests of the affected party if not impleaded in the suit, and where the impleadment of the said party is necessary and vital for the decision of the suit.
Supreme Court in the judgment of Razia Begum (supra) considered the provisions of Order 1 Rule 10(2) of the CPC and in paragraph no.14 has held that the Court while exercising a judicial discretion may grant or refuse a prayer of adding party. Paragraph no. 14 lays down certain propositions to be considered. Paragraph no.14 reads as under :-
14)As a result of these considerations, we have arrived at the following conclusions:-
(1)That the question of addition of parties under Rule 10 of Order 1 of the Code of Civil Procedure, is generally not one of initial jurisdiction of the court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case; but in some cases, it may raise controversies as to the power of the court, in contradistinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in Section 115 of the Code;
(2)That in a suit relating to property in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest in the subject matter of the litigation;
(3)Where the subject-matter of a litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy;
(4)The cases contemplated in the last proposition have to be determined in accordance with the statutory provisions of Sections 42 and 43 of the Specific Relief Act ;
(5)In cases covered by those statutory provisions, the court is not bound to grant the declaration prayed for, on a mere admission of the claim by the defendant, if the court has reasons to insist upon a clear proof apart from the admission;
(6)The result of a declaratory decree on the question of status, such as in controversy in the instant case, affects not only the parties actually before the court, but generations to come, and in view of that consideration, the rule of “present interest”, as evolved by case law relating to disputes about property, does not apply with full force; and
(7)The rule laid down in Section 43 of the Specific Relief Act, is not exactly a rule of res judicata. It is narrower in one sense and wider in another.
[ Emphasis supplied ]
Supreme Court in the judgment of Savitri Devi (supra) held that in order to enable to completely adjudicate upon the questions involved in the suit, any person needs to be added as a party at any stage of the proceedings under the provisions of Order 1 Rule 10 of the CPC. Paragraph nos. 9, 10 and 11 of the said judgment reads as under :-
9)Order 1 Rule 10 CPC enables the Court to add any person as party at any stage of the proceedings if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision in the Code.
10)In Khernchand Shankar Choudhari v. Vishnu Hari Patil (1983) 1 S.C.C. 18 this Court held that a transferee pendente lite of an interest in an immovable property which is the subject-matter of suit is a representative in interest of the party from whom he has acquired that interest and has a right to be impleaded as a party to the proceedings. The Court has taken note of the provisions of Section 52 of the Transfer of Property Act as well as the provisions of Rule 10 of Order XXII CPC. The Court said: (SCC P. 21, para 6)
"It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so inpleaded and heard"
11)In Ramesh Hirachand Kundanmal v. Municipal Corpn. Of Greater Bombay (1992)2 SCC 524 this Court discussed the matter at length and held that though the plaintiff is a “dominus litis” and not bound to sue every possible adverse claimant in the same suit, the Court may at any stage of the suit direct addition of parties and generally it is a matter of judicial discretion which is to be exercised in view of the facts and circumstances of a particular case. The Court said: (SCC p. 529, para 8)
“8.The case really turns on the true construction of the rule in particular the meaning of the words ‘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’.
The Court is empowered to join a person whose presence is necessary for the prescribed purpose and cannot under the rule direct, the addition of a person whose presence is not necessary for that purpose. If the intervener has a cause of action against the plaintiff relating to the subject-matter of the existing action, the Court has power to join the intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions." The Court also observed that though prevention of actions cannot be said to be main object of the Rule, it is a desirable consequence of the Rule. The test for impleading parties prescribed in Razia Begum v. Sahebzadi Anwar Begum 1959 SCR 1111 that the person concerned must be having a direct interest in the action was reiterated by the Bench.
[ Emphasis supplied ]
In case of Udit Narain Singh Malpaharia (supra) Supreme Court discussed the subject of the law of a necessary party and a proper party. Paragraph nos. 7 and 9 of the said judgment reads as under :-
(7)To answer the question raised it would be convenient at the outset to ascertain who air necessary or proper parties in a proceeding. The law on the subject is well settled : it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.
(9)The next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition to quash the order of a tribunal. As we have seen, a tribunal or authority performs a judicial or quasi- judicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before it. In a writ of certiorari the defeated party seeks for the quashing of the order issued by the tribunal in favour of the successful party. How can the High Court vacate the said order without the successful party being before it. Without the presence of the successful party the High Court cannot issue a substantial order affecting his right. Any order that may be issued behind the back of such a party can be ignored by the said party, with the result that the tribunal's order would be quashed but the right vested in that party by the wrong order of the tribunal would continue to be effective. Such a party, therefore, is a necessary party and a petition filed for the issue of a writ of certiorari without making him a party or without impleading him subsequently, if allowed by the court, would certainly be incompetent. A party whose interests are directly affected is, therefore, a necessary party.
[ Emphasis supplied ]
In the present proceeding, the applicant is claiming his rights through his father. The applicant’s father died on 4 July, 2014. Thereafter the applicant applied for Letters of Administration in this Hon’ble Court with respect to the estate of his late father which included the suit premises. The Letters of Administration was granted to the applicant only on 18 February, 2023 and thereafter the present interim application has been filed on 9 April, 2025. The Conveyance dated 31 January, 2009 was executed in favour of applicant’s father by Mohammed Merchant. Hence, applicant’s father got right, title and interest in the suit premises. The said Mohammed Merchant had got interest in the suit property pursuant to the Agreement of Sale dated 20 April, 1988 which was executed by Navalkars’ (respondent nos. 1 to 6 in the present First Appeal).
Mohammed Merchant had filed a suit in the year 1994 in the High Court seeking specific performance against the Navalkars’. The said suit was decreed in favour of Mohammed Merchant. Being dissatisfied, the Navalkars’ filed Appeal before this Hon’ble Court. In the said Appeal, Navalkars’ and Merchant entered into the consent terms pursuant to which a decree passed by the trial Court in favour of the Merchant was confirmed.
During the said period, the present appellant also filed a suit against the Navalkars’ challenging the de-requisition order passed by the Estate Officer. The said suit of the appellant was dismissed, hence, they filed an appeal before this Hon’ble Court which is the present First Appeal. After delay was condoned, the First Appeal was admitted in the year 2006. The applicant’s case is that after the Letters of Administration was granted in his favour, on enquiry he got knowledge about the present First Appeal being pending before this Court, hence present application for joining him as a party has been preferred. The ratio laid down in the above four judgments are squarely applicable to the present proceedings. And it is also pertinent to note that the Navalkars’ who are the respondents in the present First Appeal had opposed the present interim application, which is seeking joining of the present applicant in the First Appeal and the fact that the present applicants are claiming their rights through Navalkars, hence, all the more reason that the present interim application should be allowed as the right of the present applicant which is ultimately claimed through Navalkars’ is likely not to be protected by the Navalkars’.
In so far the judgments referred by the original appellant in the First Appeal who are opposing the present interim application, in my view the ratio laid down in these judgments will not be applicable to the present proceedings because as far as the judgment of Mohamed Hussain Gulam Ali Shariffi (supra) is concerned, the challenge in the suit was to a notice issued by the Municipal Corporation under Section 351 of the Municipal Corporation Act which was issued to the tenant who had challenged the said notice of the Municipal Corporation. The Supreme Court held that a landlord will have no right to be heard in such proceedings. In my view, as far as a relationship of landlord and tenant is concerned, if one of the ground as mentioned under the Rent Act is available to him for filing a eviction suit, in view of the action taken by the Corporation, he can do so. However, such a landlord need not be a party to a proceedings which arises out of Section 351 of the Municipal Corporation Act.
In NAK Engineering (supra) the Supreme Court was dealing with the facts where the owner of the premises had created a tenancy in favour of a party who in turn sublet a part of the premises. The sub-tenant was paying rent to the tenant and was also paying what is called as service charges per month for use of furniture and fixtures to the original owner/landlord. On non-payment of those service charges, the landlord filed a suit for recovery of service charges. The sub-tenant though served, did not appear or filed its written statement. As the matter proceeded further ex-parte, a party claiming to be running the business of the sub-tenant filed an application on the ground that it is a necessary party to the suit. The landlord even filed a separate eviction suit under the Rent Act against the sub-tenant. While considering the recovery suit, the Supreme Court held that the party who claims to be running the business of sub-tenant, would not be a necessary party to the suit. In my view, the facts in the said judgment of NAK Engineering (supra) is completely different from the present proceedings. Therefore, the ratio laid down in the said judgment is not applicable to the present proceedings.
In judgment of Kasturi (supra) the Supreme Court was dealing with the fact where there was a suit for specific performance based on the contract for sale. A third party who was not a party to the contract, preferred an application to be joined in the suit setting up a claim of independent title and possession over the suit property. The Supreme Court held that the scope of the suit for specific performance of contract for sale cannot be enlarged from the suit for specific performance to a suit for title and possession. Since the third party was not a party to the contract for sale, a decree passed for specific performance shall not bind them and in that case they would be at liberty either to obstruct the execution of the order to protect their possession by taking recourse as per the relevant provision of CPC if the plaintiff succeeded against the defendant. In my view, the law laid down in the judgment of Kasturi (supra) with regard to the suit for specific performance would not be applicable to the present proceeding because in the present proceeding, the applicant is claiming that there was a Conveyance in favour of his father and that Conveyance in favour of his father was from a person called as Merchant who had a Conveyance in his favour from the original owners of the suit property. The suit filed by the present appellant in the present proceedings against the original owners has been dismissed. Therefore the law laid down in Kasturi (supra) in my view would not be applicable to the present proceedings.
In case of Gurmit Singh Bhatia (supra), the Supreme Court was dealing with the facts where the plaintiff filed a suit for specific performance of an agreement for sell and during the pendency of the said suit, there was an injunction granted. However, the defendant transferred the suit property to a third party by executing a sale deed. The third party thereafter preferred an application to be added as a party defendant in the suit. The Supreme Court held that as no relief was claimed by the plaintiff against the third party, the third party cannot be said to be necessary or a formal party. The Supreme Court hence rejected the application of the third party. In my view, the ratio laid down in case of Gurmit Singh Bhatia (supra), which arises out of a specific performance of a contract, like in case of Kasturi (supra) will not be applicable to the present proceedings for the simple reason that in the present proceeding there is a Conveyance in favour of the father of the present applicant and the present applicant after grant of Letters of Administration is having a right in the said suit premises and the original owner of the land also opposing the application of the present applicant to be added as a party respondent in the First Appeal, the said ratio in Gurmit Singh Bhatia (supra) would not be applicable to the present proceedings.
In view of the same, the present interim application filed by the applicant needs to be allowed.
Interim application stands allowed in terms of amended prayer clause (a). The said amended prayer clause (a) reads as under:-
(a)this Hon’ble Court be pleased to add the Applicant as party Respondent No. 8 and other applications, if any.
The hearing of the First Appeal is hereby expedited.