Alok Gupta v. Anjani Gupta & Anr

12. Finally, the learned counsel submits that the parties are related and it was on bona fide trust and faith that the said suit property was purchased in the names of daughters-in-law, namely, respondent No.1 and respondent No.2, on which the learned Trial Court did not give any reasoning or finding.

13. On that basis, learned counsel submits that it would have necessitated the learned Trial Court to examine the issues raised by the petitioners to conclude as to whether the respondent No.1 had any right over the property in the first place to seek partition of the same.

14. Learned counsel submits that though, no doubt, the respondent No.2 has taken appropriate stand against the suit of respondent No.1, however, in his humble submission, the version of the petitioners would be necessary for the learned Trial Court to come to the correct conclusion and pass appropriate orders thereon.

15. Learned counsel submits that in the absence of the aforesaid considerations, the learned Trial Court has mis-directed itself, thereby causing great and grave prejudice to the interests of the petitioners.

16. Mr. Jain also submits that the bar of Benami Transactions Act, which has been raised by the respondent No.1 is not applicable at this stage to be considered and would be a matter of trial provided the petitioners were made parties to the suit.

17. Per contra, Mr. Anirudh Bakhru, learned counsel appearing for the respondent No.1 has invited the attention of this Court to the registered sale deed at page No. 77 of the present petition and particularly to the fact that there are only three parties, who are named in the said transaction.

18. Learned counsel submits that the details in respect of the sale consideration having been paid and having been received by the vendor is very clearly mentioned in the said sale deed and obviously there is no dispute thereon.

19. Learned counsel next contends by referring to the suit plaint, particularly to para No.2, whereby the respondent No.1 has made an assertion of the purchase of the suit property at 50% share giving the description of the property and have made a categorical assertion that the same was purchased out of the earnings of the respondent no.1/plaintiff.

20. On that basis, Mr. Bakhru, learned counsel submits that the title is not in dispute and, therefore, the respondent No.1 is seeking partition thereon in accordance with law.

21. Referring to the aforesaid transaction recorded in the registered sale deed, Mr. Bakhru further submits that for the purposes of seeking partition, the only parties who are relevant, necessary and proper, would be the parties so mentioned in the sale deed, which is the respondent Nos. 1 and 2.

22. Learned counsel submits that the learned Trial Court has rightly rejected the application under Order 1 Rule 10 of the CPC on the ground that the petitioners are absolute strangers and have no role to play insofar as the relief sought or even so far as the contentions and the defenses raised by the respondent No.2/ defendant is concerned.

23. Learned counsel relies upon the judgment of Gurmit Singh Bhatia vs. Kiran Kant Robinson And others reported in (2020) 13 SCC 773, particularly to para 5.[2] (f), whereby it was noted as under: “It is further observed and held that the parties claiming an independent title and possession adverse to the title of the vendor and not on the basis of the contract, are not proper parties and if such party is impleaded in the suit, the scope of the suit for specific performance shall be enlarged to a suit for title and possession, which is impermissible.” On that basis, learned counsel submits that the petitioners are absolute strangers to the sale deed and the dispute as raised before the learned Trial Court, that is of partition, has to be between the parties to the sale deed alone.

24. Learned counsel also relies upon the judgment of Mool Chand vs. Geeta Devi & Ors. passed by the Single Bench of the Rajasthan High Court in W.P.(C) 2261/2020 rendered on 20.02.2020 and the case of Black Diamond Trackparts Private Limited and Others vs. Black Diamond Motors Private Limited reported in 2022 SCC OnLine Del 545 passed by the Co-ordinate Bench of this Court to buttress his aforesaid arguments.

25. Mr. Bakhru, learned counsel appearing for the respondent No.1 submits that apart from the fact that they are neither necessary nor proper parties to the suit, he also attacks the submissions made by the petitioners on the grounds that the said impleadment application has been preferred after four years of the suit having been instituted by the respondent No.1. To support those submissions, Mr. Bakhru relies upon the judgment in Mool Chand (supra) passed by the learned Single Judge of the High Court of Judicature for Rajasthan at Jodhpur.

26. On the basis of the aforesaid judgment, Mr. Bakhru, learned counsel submits that if the petitioners are permitted to be impleaded as parties to the suit, grave prejudice shall be caused to the respondent No.1 and the suit will be relegated back to the status as obtaining four years prior to the filing of the said suit and reckoned as on date, it would be more than ten years.

27. Learned counsel draws attention to para 8 and 9 of the impugned order to submit that the learned Trial Court has correctly appreciated the submissions made by the respondent No.1 and passed the impugned order, which ought not to be interfered by this Court.

28. In rebuttal, Mr. Goyal, learned counsel for the petitioners places reliance on the judgment of the Supreme Court in Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay And Others reported in (1992) 2 SCC 524 to submit that, who is a necessary and a proper party has been explained by the Supreme Court, which has not been considered by the learned Trial Court while passing the impugned order. The relevant para of the aforesaid judgment is reproduced hereunder:-

29. This Court has considered the submissions, the pleadings, the impugned order as well as the judgments relied upon by the respective parties.

30. It is apposite to extract the provisions of Order 1 Rule 10 (2) of the CPC before proceeding to decide the petitions.

that the test to implead a party to pending lis would be a person without whose presence the court would not be able to evaluate the facts and evidence which are intrinsically intertwined with the issues that arise therein and the links in such chain of facts and evidence would not be complete and the court would not be able to adjudicate and settle the questions involved in the suit.

31. From a perusal of the sale deed by virtue whereof, the respondent No.1 has filed a suit for partition, it is clear and apparent that the suit is based on title conferred by the said registered sale deed, which is executed between the three parties, in that, the vendor and the purchasers, the latter who are respondent Nos.[1] and 2 respectively, before this Court.

32. After hearing the submissions of Mr. Jain and Mr. Goyal for the petitioners, this Court has also perused the written statement as filed on behalf of respondent No. 2 and has come to the conclusion that all the arguments and submissions, which have been raised by the petitioners before this Court as well as before the learned Trial Court have been already taken as preliminary objections as also in the reply on merits by the respondent No.2 to the suit filed by the respondent No.1. Needless to state that the trial is yet to commence and all the grounds which have been raised by both the parties shall be open to trial.

33. The anxiety of the petitioner to put across, before the learned Trial Court, as to under what circumstances the properties were purchased in the names of respondent Nos. 1 and 2 is not for this Court to consider inasmuch as, the only issue which arises in the present petition is whether the petitioners are necessary or proper parties to the suit.

34. There is no quarrel with the proposition of law as laid down in Ramesh Hirachand Kundanmal (supra), however, the same are distinguishable on facts.

35. Having regard to the fact that the parties to the sale deed are only respondent Nos. 1 and 2, it is apparent that the petitioners are complete strangers, so far as the suit is concerned. It is also observed that the parties are related and there is a deep acrimony between the parties due to their personal relations.

36. It appears from the submissions made as also by the application filed under Order 1 Rule 10 CPC, that the attempt to implead themselves as parties to the suit is, to be used as a ploy to delay the suit, which is pending before the learned Trial Court.

37. It has been informed that the petitioners are husband, father-inlaw and Brother-in-law of the respondent No.1 and that there are more than 60 cross cases pending between the parties. It is apparent from the said submissions that the intention to implead themselves in the suit is not above board.

38. After having considered the judgments of the Supreme Court in Gurmit Singh Bhatia (supra), Gunjan Kumar vs. Vipin Parwanda reported in 2015 SCC OnLine Del 95211 and the judgment of the learned Single Judge of the Rajasthan High Court in Mool Chand (supra), this Court is of the considered opinion that the petitioners are complete strangers to the suit, and that apart, the delay of four years, which now has become ten years, is not condonable.

39. The judgments referred by the respective parties are taken on record.

40. It has been given to understand that an application under Order 12 Rule 6 CPC is pending adjudication before the learned Trial Court. Learned Trial Court is at liberty to decide the same in accordance with law.

41. In view of the aforesaid, the petitions are dismissed.

42. Reply is stated to have been filed. Rejoinder, if any, be filed within six weeks with advance copy to the learned counsel for the petitioner. CM APPL. 13923/2021 (under Section 340 Cr.P.C filed on behalf of the respondent) in CM(M) 80/2020

43. List on 18.09.2023.

TUSHAR RAO GEDELA, J FEBRUARY 22, 2023