TaxTMI 
TaxTMI 
2025 (6) TMI 2
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.... of his name from the array of parties. A. FACTUAL MATRIX 4. The appellant is the grandson of one Late Jameela Beevi. Late Jameela Beevi was the original defendant in O.S. No. 617 of 1996, instituted by the respondent no. 1 herein (original plaintiff) before the Principal Sub Court, Palakkad seeking specific performance of the agreement to sell dated 14.06.1996 executed between the original plaintiff and the original defendant, whereby the original defendant undertook to transfer the suit property to the original plaintiff for a total consideration of Rs. 6,00,000/-, upon payment of the balance sale consideration of Rs. 1,50,000/- within three months from the execution of the agreement. Pertinently, the appellant herein was one of the witnesses to the sale agreement. 5. The suit property, measuring 1 cent, situated in Keezhumuri Desom, Ward No. 3, Block 42, Survey No. 1895, Palakkad Town, Kerala, comprises of a tiled-roofed shop with walls on three sides and two shutters on the front side along with the land on which the shop stands. The same was purchased by the original defendant vide assignment deed dated 10.09.1976. It is noteworthy that clause 8 of the said deed if re....
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....sed them to forge the agreement to sell. 11. The suit came to be decreed by the Trial Court on 17.03.2003, which held that the execution of the agreement to sell was proved by the original plaintiff and the defence put forth by the original defendant was not credible. The Trial Court directed the original defendant to execute the sale deed upon payment of the remaining sale consideration. Phase - III 12. The order of the Trial Court decreeing the suit was challenged by the original defendant by way of filing RFA No. 281 of 2003 before the High Court. However, the High Court dismissed the same and affirmed the order of the Trial Court vide its judgment dated 02.08.2008. 13. The original defendant further challenged the order of the High Court before this Court by way of SLP (C) No. 18880 of 2008. However, the same also came to be dismissed vide order dated 13.08.2008, thereby conclusively affirming the decree for specific performance granted by the Trial Court. Phase - IV 14. Upon failure of the original defendant to execute the sale deed after accepting the balance consideration, the original plaintiff moved the I.A. No. 2548/2003 in O.S. No. 617/1996 under Sectio....
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....pellant filed I.A. No. 2348 of 2012 in I.A. No. 2548/2003 in OS No. 617 of 1996 on 19.07.2012 under Order I Rule 10(2) of the CPC seeking deletion of his name from the array of parties, on the ground that he was wrongly impleaded as a legal heir under the Mohammedan Law and further asserting that he was a tenant in the suit property, having inherited the tenancy from his late father. He submitted that he was carrying on business from the suit property and his tenancy rights could not have been adjudicated in the execution proceedings. The original plaintiff objected to the said I.A., inter alia, on the ground that the appellant had failed to raise any of the said objections on any prior occasion and was doing the same only to obstruct and delay the execution proceedings. 21. The Trial Court dismissed the said I.A. on 19.06.2013 and held that the appellant was attempting to delay the execution by raising frivolous issues and that too after having failed to raise during the prior proceedings. The court noted that the appellant was a witness to the sale agreement dated 14.06.1996, had previously participated in litigation without objecting, and was now employing a strategy of filin....
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....s to circumvent that situation now he has come forward with this plea to remove him from the party array as he being not a legal heir of Jameela Beevi despite the fact that such a plea was not taken over these years either at the time of his impleadment or while participating in a series of interlocutory applications. This petition, is yet another ruse adopted by the respondents to delay the execution of a sale deed pursuant to the decree. The petition is barred by constructive resjudicata besides being devoid of bonafides. Therefore, it is dismissed with cost to the 1st respondent/plaintiff." 22. The appellant challenged the order of the Trial Court before the High Court in O.P. (C) No. 2290 of 2013, however the same came to be dismissed vide the impugned order dated 29.11.2021. The High Court observed that the impleadment of the appellant was valid and his I.A. seeking deletion from the array of parties was barred by res judicata. The High Court also observed that the claim of the appellant for independent possession was also rightly rejected by the Trial Court. The relevant observations made by the High Court are reproduced hereinbelow: "5. The undisputed facts revea....
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....s a non obstante clause restricting eviction except in accordance with the provisions of the said Act. Therefore, before ordering delivery of possession, the status of the appellant as a tenant must necessarily be adjudicated. 27. Relying on the decision of this Court in B. Bal Reddy v. Teegala Narayana Reddy reported in (2016) 15 SCC 102, the counsel submitted that the interest of a protected tenant continues to be operative and subsisting so long as the protected tenancy is not validly terminated. 28. The learned counsel pointed out that the father of the appellant, Late Shahul Hameed, was a tenant in the suit property since the year 1969, and the assignment deed No. 2805/1976 acknowledges his tenancy, which continued with the appellant as his legal heir. Further, in 1992, Municipality License No. 215/92-93 was also issued in the name of the father of the appellant. He contended that the Municipality License No. PH2-27607/11 was thereafter issued in the name of the appellant on 16.04.2011 thereby showing the exclusive possession of the appellant on the suit property owing to the tenancy. 29. It was also contended that under the Mohammedan Law, the legal heirs of a pre-de....
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....ray was rejected. He argued that the key finding of the High Court is that the impleadment under Order I Rule 10(2) of the CPC had already attained finality and that the belated attempt by the appellant to question the same was barred by res judicata. 35. The learned counsel also brought to our attention the observations made by the Trial Court while dismissing the IA No. 2348 of 2012 in OS No. 617 of 1996. He submitted that the Trial Court took note of the following: a. The appellant had ample opportunity in prior proceedings to object to his impleadment but failed to do so. b. The appellant, rather than raising an objection to his impleadment, participated in the proceedings, including the application to rescind the contract. c. The appellant through various frivolous petitions was seeking to delay the execution of the decree dated 17.03.2003. 36. On the aspect of tenancy rights of the appellant in the suit property, the learned counsel submitted that the claim of tenancy in the suit property inherited from the father of the appellant is devoid of merit. He argued that the tenancy arrangement mentioned in the 1976 sale deed by which Jameela Beevi ....
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....m the array of parties was barred by res judicata? b. Whether the appellant is entitled to the benefit of Section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965? c. Whether in the facts of this case the transfer of possession of the suit property was implicit in the decree of specific performance in the facts of the case? E. ANALYSIS 43. Order I Rule 10 inter alia empowers the court to allow addition, substitution or deletion of a party to a suit at any stage of the proceedings. It reads as follows: "10. Suit in name of wrong plaintiff.- (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon....
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....f defect of parties and is not affected by the inaction of the plaintiff to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touchstone of Order 1 Rule 10 which provides that only a necessary or a proper party may be added. 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. The addition of parties is generally not a question 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. xxx xxx xxx 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 ....
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....Similar provision was considered in Amon v. Raphael Tuck & Sons Ltd. [(1956) 1 All ER 273 : (1956) 1 QB 357], wherein after quoting the observations of Wynn-Parry, J. in Dollfus Mieg et Compagnie S.A. v. Bank of England [(1950) 2 All ER 605, 611], that their true test lies not so much in an analysis of what are the constituents of the applicants' rights, but rather in what would be the result on the subject matter of the action if those rights could be established, Devlin, J. has stated: "The test is 'May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights'."" (Emphasis supplied) 46. In the present case, the appellant, along with other legal heirs of the original defendant came to be impleaded in the execution proceedings before the Trial Court as the original defendant passed away during the pendency of the execution proceedings. Impleadment of the legal heirs of a defendant who passes away during the pendency of suit proceedings is governed by Order XXII Rule 4. The same reads as under: "4. Procedure in case of death of one of several defentlants or of sole defendant.- (1) Where....
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....is litigation. It reads thus: "5. Determination of question as to legal representative.- Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court: Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question." 49. A perusal of the extracted provision indicates that if a question arises as regards whether any person is or is not the legal representative of a deceased defendant then such a question shall be determined by the court. 50. As we have discussed in the preceding parts of this judgment, the Trial Court, while dismissing the application moved by the appellant under Order I Rule 10, observed in clear terms that the appellant had the opportunity of contesting his impleadment as the legal heir of the original defenda....
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....ays caused by multiple applications preferred by the appellant and the other legal heirs of the original defendant, only goes on to lend credence to the allegation of the original plaintiff that the application for deletion from array of parties is merely one more attempt to further thwart and prolong what has already been an unduly protracted litigation for the original plaintiff. Furthermore, while the appellant raised no objection to the application for rescinding the contract either before the Trial Court or the High Court despite being a respondent in both the proceedings, it has been submitted by the counsel appearing on his behalf that the said proceedings were not being undertaken with the approval of the appellant. It is not possible for us to accept such a contention at this stage of the proceedings having regard to the conduct exhibited by the appellant. 53. The High Court, in its impugned order, held the application of the appellant under Order I Rule 10 to be barred by res judicata and thus not maintainable on that ground. We find no infirmity in the said observation mad by the High Court. This Court in Bhanu Kumar Jain v. Archana Kumar reported in (2005) 1 SCC 787 ....
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....rred by res judicata. Undoubtedly, the expression "at any stage of the proceedings" used in Order I Rule 10 allows the court to exercise its power at any stage, however the same cannot be construed to mean that the defendant can keep reagitating the same objection at different stages of the same proceeding, when the issue has been determined conclusively at a previous stage. Allowing the same would run contrary to the considerations of fair play and justice and would amount to keeping the parties in a state of limbo as regards the adjudication of the disputes. 55. This Court in the case of Satyadhyan Ghosal v. Deorajin Debi reported in [1960] 3 SCR 590, has noted that the principle of res judicata is essential in giving a finality to judicial decisions. The relevant observations are reproduced hereinbelow: "The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proce....
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....ted in 1928 SCC OnLine Cal 172 considered the question as regards whether an erroneous decision on a point of law would operate as res judicata between the parties or not. The court inter alia observed that it is not always open to the party to raise a point of law. It further held that Section 11 of the CPC makes the decision of the court conclusive between the parties notwithstanding the reasoning employed by the court in arriving at the said decision. The relevant observations are as under: "(1) The question whether a decision is correct or erroneous has no bearing upon the question Whether it operates or does not operate as res judicata. The doctrine is that in certain circumstances the Court shall not try a suit or issue but shall deal with the matter on the footing that it is a matter no longer open to contest by reason of a previous decision. In these circumstances it must necessarily be wrong for a Court to try the suit or issue, come to its own conclusion thereon, consider whether the previous decision is right and give effect to it or not according as it conceives the previous decision to be right or wrong. To say, as a result of such disorderly procedure, that t....
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....asten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory by precluding the parties from re-opening or recontesting that which has been finally decided." ( Emphasis supplied ) 58. We are aware of the decision of this Court in Pankajbhai Rameshbhai Zalavadiya v. Jethabhai Kalabhai Zalavadiya reported in (2017) 9 SCC 700 wherein it was held that an application under Order I Rule 10 would not be liable to be rejected solely on the ground that an application under Order XXII Rule 4 had been found to not be maintainable. However, the facts before us are quite different from the facts before the Court in Jethabhai (supra). Therein, the subsequent application under Order I Rule 10 was allowed on the ground that the initial application under Order XXII Rule 4 was filed under a mistake of law and fact as the defendant had passed away prior to the institution of the suit, whereas order XXII Rule 4 only contemplates a situation wherein the defendant passes away during the pendency of the proceedings. Thus....
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....ssignment deed of the year 1976 and the License No. 215/92-93 issued by the Palakkad Municipality under Section 204 of the Kerala Municipality Act, 1960 to contend that his deceased father was a tenant in the suit property prior to his demise in 1992. He has also relied upon the Municipality License No. PH2-27607/11 issued in his name on 16.04.2011 to contend that he enjoys the exclusive possession of the suit property owing to the tenancy. However, we are of the view that the same is merely one more weapon from the arsenal of dubious tactics employed by the appellant in collusion with the other legal heirs of the original defendant to protract the execution proceedings. 63. While it may be true that the deceased father of the appellant was a tenant in the suit property at the time the same was purchased by the original defendant in the year 1976 and that he continued as a tenant till his demise in 1992, however we are of the view that the appellant has failed to establish his tenancy or possession over the suit property for the following reasons: a. The appellant is one of the witnesses to the agreement to sell entered into between the original plaintiff and the origin....