Saturday 2 October 2021

Whether court can entertain third party's intervention application in disposed off suit?

  Here, the plaintiff sued and had the decree. Thus, he is

entitled to the decretal amount. When he wanted to withdraw

that amount, somebody else objects. That somebody maybe his

brother or his erstwhile agent. However strong that person's

right to recovery maybe, he cannot file an intervention

application in an already disposed of matter and stay the

execution of the decree or nullify the decree without proper

judicial recourse. {Para 36}

37. After all is said and done, here comes the palliative. If

Subhash has an enforceable claim against either Rajesh or

Sudarshan, the above suit does not defeat his rights. Much less

do these observations affect Subhash’s supposed rights.

38. Under these circumstances, I express my inability to

entertain this application despite diligent efforts made by Shri

Savant, the applicant’s counsel. I, therefore, dismiss it.

39. Shri Savant, at this juncture, wants this Court to

restrain the respondent-plaintiff from withdrawing the decretal

amount for at least eight weeks, so the applicant could explore

his remedial options. The Respondent's counsel, of course,

strongly opposes this plea.

As the intervention application in a disposed of suit has

been summarily rejected, I see no justification for the Court to

grant such relief as the applicant sought. The request stands

rejected.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

INTERIM APPLICATION (L) NO. 11624 OF 2021

IN

SUIT NO. 2700 OF 2011

RAJESH SAICHAND SHARMA Vs SUDERSHAN GANGARAM RAJULA 

CORAM : DAMA SESHADRI NAIDU, J.

DATE : 11th JUNE, 2021.


Introduction:

A contracts with B for purchasing some property. B

defaults. So A sues. In that suit, C, the brother of A, represents A

as his power of attorney agent (POA). A few years later, A

discharges C from being his POA; he pursues the case

independently and gets a decree—not for specific performance

but for the return of money. When A wants to withdraw the

deposited decretal amount, C, his brother and erstwhile POA,

objects. He wants to intervene in the disposed of suit and stake a

claim to a part of the decretal amount on the premise that he,

too, has contributed to the sale consideration.

2. Can C’s claim be countenanced? Is such an ‘intervention

application’ maintainable?

Facts:

3. Rajesh Saichand Sharma and Subhash Chandra

Saichand Sharma are brothers, now estranged. Rajesh lives in

the U.S.A. and Subhash in Mumbai. Initially, Rajesh filed the

above suit for specific performance against one Sudarshan

Gangaram Rajula. He pleaded that he contracted with

Sudarshan to buy a flat and paid a part of the sale consideration.

According to him, though he was willing to pay the balance sale

consideration and have a regular deed of conveyance in his

favour, Sudarshan did not come forward to perform his part of

the contract. With that cause of action, Rajesh filed Suit No.

2700 of 2011 before this Court for specific performance.

Incidentally, Subhash, his brother, was his power of attorney

agent in the Suit.

4. Of course, defendant Sudarshan denied the whole

transaction. On the other hand, he pleaded that it was a money

transaction camouflaged as an agreement of sale. But we need

not visit that controversy. The fact remains that when the suit

was pending, in 2017 Rajesh cancelled the power of attorney

and pursued the case on his own.

5. Over time, either to prove his bona fides or as an

interim step in aid of final adjudication of the suit, Sudarshan

deposited certain amounts in the Court. That was based on this

Court’s interim directions, and the amount remains deposited

with a nationalised bank, earning interest.

6. Eventually, this Court, through judgment dated

07.05.2021, decreed the Suit. The disposition of the judgment

reads as:

Para 4. Accordingly, the suit is decreed in the

sum of Rs. 61 lacs deposited by the Defendant in

this court together with accrued interest thereon

towards repayment of the loan advanced by the

Plaintiff to the Defendant. There will be no order as

to costs. Refund of court fees in accordance with

applicable Rules.

Para 5. Drawing up a decree is dispensed with.

Prothonotary and Senior Master to allow the

Plaintiff to withdraw the amount deposited in

court, which is presently lying in fixed deposit/s of

Nationalized Bank/s, together with accrued interest

thereon till the date of withdrawal of such deposit.

Para 6. This order has been passed in the

presence of the Plaintiff, who has joined the VC

link.

Para 7. In view of the disposal of the Suit,

Notice of Motion No. 1953 of 2019 does not survive

and is disposed of.

(Italics supplied)

7. From the above operative portion of the judgment, it is

evident that Sudarshan had to pay Rs.61 lakhs to Rajesh. And

that amount had been deposited when the suit was pending.

8. As a matter of further development, on 12.05.2021, in

this disposed of suit, Subhash filed this intervention application.

He pleads that he contributed a part of the consideration for the

contract and, therefore, he is entitled to a proportionate decretal

amount. For the record, we may extract the reliefs Subhash

sought in the intervention application. They are these:

(a) That this Hon'ble Court be pleased to pass an order

thereby allowing the applicant to intervene and further

add the applicant as a necessary party-Defendant No. 2 in

Suit No. 2700 of 2011 as the applicant is the affected

party;

(b) That the Plaintiff be restrained from withdrawing

the entire amount deposited by the Defendant in the office

of Prothonotary and Senior Master pursuant to the order

passed by this Hon’ble Court on 23rd July 2014 in the

Notice of Motion No. 3464 of 2011 from the office

Prothonotary and Senior Master;

In the alternative;

That in the event the Plaintiff has already withdrawn the

said entire amount, the Plaintiff be directed to deposit the

entire amount with the office of Ld. Prothonotary and

Senior Master.

(c) That this Hon’ble Court be pleased to pass an order

thereby directing the Ld. Prothonotary and Senior Master

to pay the amount of Rs. 37,53,818/- along with interest

accrued thereon to the Applicant in proportion as recorded

in the Order dated 23rd July 2014 in the Notice of Motion

In the alternative;

That the Hon’ble Court be pleased to pass an order thereby

restoring the present Suit No. 2700 of 2011 to its original

file and the present suit be heard on its own merits.

That the Hon’ble Court be pleased to direct the office of Ld.

Prothonotary and Senior Master to deposit Rs. 61 Lacs with

accrued interest thereon in the Fixed Deposit as directed by

this Hon’ble Court by its Order dated 23rd July 2014 till

disposal of this present suit.

(d) Pending the hearing and final disposal of this interim

application, the Plaintiff be restrained from withdrawing

the entire amount from the office of Prothonotary and

Senior Master;

(e) Pending the hearing and final disposal of this interim

application the office of Ld. Prothonotary and Senior

Master be directed to pay the amount of Rs. 37,53,818/-

along with interest accrued thereon to the Applicant in

proportion as recorded in the Order dated 23rd July 2014

in the Notice of Motion No. 3464 of 2011.

(f) Interim and ad-interim reliefs in terms of prayer

clause (c) above;

(g) Cost of this Application.

(italics supplied)

9. When Subhash filed the intervention application, soon

after that, on 24.05.2021, Rajesh applied to this Court for its

leave to withdraw the decretal amount—the amount Sudarshan

earlier deposited.

10. On 18.05.2021, this Court passed an interim order,

first, doubting whether this intervention application is

maintainable? Second, the Court has required both the parties to

file pleadings to establish their rival contentions. It wanted, of

course, to rule on whether Subhash is entitled to any relief.

11. After filing an additional affidavit setting out the

details of the payments he made, Subhash insists that the

application be allowed.

Arguments:

Applicant:

12. Shri Sanjiv Sawant, the learned counsel for Subhash,

submits that all along Subhash pursued the case, though as a

POA. According to him, Rajesh has been staying in the U.S.A.

That apart, he also asserts that Subhash contributed a

substantial part of the sale consideration—to be precise, Rs. 16

lakh in 2006. But Subhash has not averred in the plaint to that

effect, nor has he insisted on his being a co-plaintiff. It was only

because the brothers, then, had a cordial relationship, and

Subhash was pursuing the case to benefit both brothers—though

in the name of his elder brother.

13. To elaborate, Shri Sawant submits that the relationship

between the brothers got strained in or about 2014, and Rajesh

eventually cancelled the power of attorney in 2017. Though

Rajesh has filed a summary suit against Subhash before the City

Civil Court, and it is still pending, that suit, however, has

nothing to do with the dispute on hand.

14. Shri Sawant emphasises that on 16.04.2012, this Court

did observe in its docket proceedings that both the brothers

contributed the sale consideration. So, it is beyond any pale of

controversy that Subhash has a stake in the decretal amount.

That accepted, if the Court allows Rajesh to withdraw the entire

decretal amount, it prejudices Subhash. In this context, Shri

Sawant insists that Rajesh has played fraud on Subhash. With

that, the whole judicial proceedings stand vitiated. So no

procedural limitations can come in the way of this Court’s

allowing the interlocutory application. That, in fact, serves the

cause of justice.

Respondent/Plaintiff:

15. On the other hand, Shri Chandrakant Chavan, the

learned counsel for Rajesh, strenuously denies Subhash's

assertion. According to him, Rajesh contributed the entire sale

consideration, and, therefore, he alone sued. Subhash

representing Rajesh as his POA is of no consequence. Shri

Chavan also submits that though Rajesh filed Summary Suit No.

1273 of 2016 before the City Civil Court for recovering about

Rs.80 lakh, to this day Subhash, as the defendant, has not set up

any defence of setting off, adjustment, or counterclaim. Nor has

he pleaded that Rajesh owed him money because he contributed

a part of the sale consideration.

16. About this Court's incidental observation, as the

learned counsel puts it, whether Subhash has contributed any

part of the sale consideration, Shri Chavan points out that it was

a prima facie observation way back in 2012, and that was,

perhaps, at Subhash's behest, for he had been prosecuting the

case as a POA in his brother’s absence. In other words, Shri

Chavan contends that the Court’s observations, if any, with no

foundation in the pleadings—and falling beyond the scope of

the very suit—do not help Subhash. Therefore, he urges this

Court to dismiss the intervention application.

Second Respondent/Defendant:

17. Of course, Mrs. Bhandari, the learned counsel for the

defendant, who too joined the issue, has contended that there

had never been an agreement for sale. According to her, it was

only a money transaction. To the same effect is the decree, too.

That said, we need not revisit that controversy. The suit has

already been disposed of—rather decreed in Rajesh’s favour.

18. Heard, Shri Sanjiv Sawant, the learned counsel for the

applicant, Shri Chandrakant Chavan, the learned counsel for the

respondent-plaintiff, Mrs. Sukeshi Bhandari, the learned counsel

for the respondent-defendant.

Discussion:

19. Indeed, Courts have often held that procedural laws

are handmaid of justice. The function of adjective law is to

facilitate justice and further its ends. The rules of procedure are

intended to be a handmaid to the administration of justice.

Therefore, they must be construed liberally and in such a

manner as to render the enforcement of substantive rights

effective. A ‘hypertechnical view’ should not be adopted by the

court in interpreting procedural laws. A party cannot be refused

just relief merely because of some mistake, negligence,


inadvertence, or even infraction of the rules of procedure. ‘Rules

of pleadings’ are intended as aids for a fair trial and for reaching

a just decision. An action at law should not be equated with the

game of chess. Provisions of law are not mere formulae to be

observed as rituals. Beneath the words of a provision of law,

generally speaking, there lies a juristic principle. It is the duty of

the court to ascertain that principle and implement it. Our laws

of procedure are based on the principle that as far as possible,

no proceeding in a court of law should be allowed to be

defeated on mere technicalities. The Code of Civil Procedure,

therefore, must be interpreted in a manner to subserve and

advance the cause of justice[1].

20. Let us put the icing on the cake. In his inimitable

rhetorical flourish, Krishna Iyer, J, observed in State of Punjab v.

Shamlal Murari thus:

“We must always remember that processual law is not to

be a tyrant but a servant, not an obstruction but an aid to

justice. It has been wisely observed that procedural

prescriptions or the handmaid and not the mistress, a

lubricant, not the resistant in the administration of

Justice. Where the non-compliance, the procedural, will

thwart fair hearing or prejudice doing of justice to parties,

the rule is mandatory. But, grammar apart, if the breach

can be corrected without injury to adjust disposal of the

case, we should not enthrone a regulatory requirement

into a dominant desideratum. After all, courts are to do

justice, not to wreck this product of technicalities.”

(italics supplied)

1 C. K. Thakker’s Code of Civil Procedure, Vol. I, EBC,

p.200 (EBC Reader)


4. IA (L) 11624 of 2021.odt

21. That said, we may, metaphorically, liken the procedural

parameters to traffic rules on the road to justice. The better they

are observed, the safer the vehicle of justice travels. True,

occasional infraction is not fatal; in fact, that infraction is

inevitable and, perhaps, necessary. Granted, an ambulance may

jump the signal, but not a picnic van. With no other way left, a

litigant may insist that the way he chose is the only way—and

that he must have his way. On the contrary, a party cannot

abandon a highway, reach a cul de sac or a blind alley, and insist

that he should have his way.

22. Here, I will avoid a ‘hyper-technical view’ and try to

adopt a pragmatic approach. Then, can I aid the applicant? I am

afraid, not.

23. First, there is no lis before the Court for it to entertain

an interlocutory application. Thus, the Court is proverbially

functus officio. Nevertheless, Subhash wants the Court to revive

and resurrect a disposed of suit. To have that revival or

resurrection, first we must set aside the decree that has already

been passed. Subhash has not sought that relief. Let us assume

that the Court is willing to travel beyond the pleadings and the

prayer, too, to meet the ends of justice.

24. Then, the question is, can the Court adopt such a

course in an application for intervention, as it is termed? It

cannot. A decree can be set aside under Order 9, Rule 13 CPC.

But, as the Supreme Court has held in Ram Prakash Agarwal v.


4. IA (L) 11624 of 2021.odt

Gopi Krishna[2], the applicant must have been a party to the

suit, in the first place. Of course, the Apex Court has taken a

different view in Raj Kumar v. Sardari Lal,[3] but that was in the

context of a lis pendens purchaser. Another interlocutory

method for setting aside a decree is under Order 37, Rule 4 CPC.

But that must be in a summary suit and the party must be the

defendant.

25. The next permissible method for having a decree set

aside is review under Order 47, read with Section 114, of the

Code of Civil Procedure. Nor can this Court exercise its inherent

powers under Section 151 of CPC once the party has a specific

provision in the Code to meet his needs.

26. As I have already noted, Subhash has a highway or a

thoroughfare to travel on if ever he wants to reach his judicial

destination: a separate suit, seeking a declaration. Its

permissibility or its sustainability is not the subject matter here.

We are only talking remedially.

27. Now, let us deal with the issue from another

perspective. Essentially, the suit is in a contractual dispute. And

that dispute concerns the parties to the contract. In a suit for

specific performance, whatever be its outcome, no third party

can have the role to play. Let us check the precedential position

on this point. In E. Ajay Kumar v. Smt Tulsabai,[4] this Court has

2 (2013) 11 SCC 296

3 (2004) 2 SCC 601

4 AIR 1973 Bom. 330

4. IA (L) 11624 of 2021.odt

held that by very nature, a suit for specific performance confines

itself to the agreement and several pleas that can either defeat

or lead to its enforcement. The cause of action in such a suit is

the agreement and its enforceability. In paragraph 20 of the

judgment, E. Ajay Kumar has viewed the issue from another

angle. It posed unto itself a question: Can it really be said that

the stranger to an agreement is concerned with the relief sought

by the plaintiff or the defences raised against such specific

performance? In answer, it has held that, first, the stranger not

being a party to the suit, any decision in that suit does not affect

him. Therefore, he suffers no prejudice. Second, the Court is

being called upon to enforce the agreement but not to settle any

disputes between the plaintiff and the stranger. So, the presence

of such a person is not necessary for the Court to decide the

controversy in the suit.

28. To sum up, in a suit for specific performance, a third

party’s assertion that he has a stake in the subject matter of the

suit counts to noting. What matters is the contract, not the

property covered by the contract.

29. In 1945, the High Court of Calcutta in Prem Sukh

Gulgulia v. Babib Ullah, AIR 1945 Cal 355 has held that the necessary parties in

a suit for specific performance of a contract for sale are the

parties to the contract. If they are dead, their legal

representatives will have the standing. Of course, a person who

has purchased the property from the vendor after the contract is

also a necessary party as he would be affected. But a person who

claims adversely to the vendor is, however, not a necessary party.

According to Prem Sukh Gulgulia, this is on the principle that

the scope of a suit for specific performance of a contract for sale

ought not to be enlarged and turned into a title suit between

one of the parties to the contract and a stranger.

30. In Panne Khushali v. Jeewanlal Mathoo Khatik,[6] a

Full Bench of the High Court of Madhya Pradesh has held that

strangers to the contract making a claim adverse to the title of

the defendant—for example, that they are the co-owners of the

contracted property—are neither necessary nor proper parties.

So they are not entitled to be joined as parties to the suit. Parties

should not be added so as to convert a suit of one character into

that of a different character. And, later, the High Court of Delhi

has echoed the same view in Raj K. Mehra v. Mrs. Anjali

Bhaduri.[7]

31. In Razia Begum v. Anwar Begum,[8] the Supreme

Court has held that if the plaintiff, even after notice of claim of

title hostile to his vendor by an intervener, does not want to join

the intervener, he takes the risk. He cannot be forced upon to

join the intervener. That is, in a suit for specific performance of a

contract for sale regarding a property, some other person who

applies for being impleaded as a party on the ground he has a

6 AIR 1976 MP 148

7 AIR 1981 Del 237

8 AIR 1958 SC 886

right by birth in the suit property cannot be joined as a party. It

is so because if such a person could intervene as a party, the

nature of the suit would change from a suit for specific

performance of a contract to that of a suit for the title.

32. Keeping in view the above precedential position, let us

examine the issue: (1) The agreement was between Rajesh and

Sudarshan. (2) From the very inception, Subhash represented

Rajesh as his POA in the suit; thus, he knew his brother’s

pleadings and assertions to the exclusion of everyone else. (3)

Despite that, Subhash never objected to his principal’s (Rajesh’s)

contentions. (4) Though Rajesh, as the principal, cancelled GPA

in 2017, Subhash never attempted, if ever permissible, to come

on record as a defendant to protect his independent interest, if

any. (5) The suit was eventually decreed in 2001. (6) Sudarshan

willingly suffered the decree and deposited the amount to be

appropriated by Rajesh alone.

33. Thus, if Sudarshan had received the consideration

from Rajesh and Subhash and treated both as his counterparts to

the contract, his satisfying Rajesh’s decree would not discharge

him from his alleged obligation to Subhash. (8) Evidently,

Sudarshan has not viewed it so; in fact, he seems willing to risk

a claim from Subhash by fulfilling Rajesh’s claim alone.

34. Put it differently, if Subhash contributed to the sale

consideration at Rajesh’s behest, he would have his claim

against Rajesh intact, subject to limitation though. On the

contrary, if he has contributed directly to Sudarshan and wanted

him to treat both the brothers as co-purchasers, Subhash may

have his remedy against Sudarshan open. Thus, the suit between

Rajesh and Sudarshan does not affect him. I may, at this

juncture, stress that these are polemical propositions but not the

Court’s considered views, much less conclusions having any

judicial imprimatur.

35. Now, let us deal with a collateral issue. Subhash insists

that this Court, in its order dated 16.04.2012, noted that

Subhas, too, contributed to the sale consideration. In this

context, I may note that to facilitate adjudication of the matter,

procedurally the Court undertakes various steps. And in that

process, it may prima facie observe or record certain aspects

based on the counsel’s representations. They are sans pleadings

and sans evidence. Such observations do acknowledge the

parties existing rights if any, but they do not create rights on

their own. A Court’s observation cannot give rise to a right

unless it has already existed, nor does it provide a cause of

action. Here, in this case it had never been in the Court’s

contemplation as to who contributed the sale consideration. It is

a non sequitur.

36. Here, the plaintiff sued and had the decree. Thus, he is

entitled to the decretal amount. When he wanted to withdraw

that amount, somebody else objects. That somebody maybe his

brother or his erstwhile agent. However strong that person's

right to recovery maybe, he cannot file an intervention

application in an already disposed of matter and stay the

4. IA (L) 11624 of 2021.odt

execution of the decree or nullify the decree without proper

judicial recourse.

37. After all is said and done, here comes the palliative. If

Subhash has an enforceable claim against either Rajesh or

Sudarshan, the above suit does not defeat his rights. Much less

do these observations affect Subhash’s supposed rights.

38. Under these circumstances, I express my inability to

entertain this application despite diligent efforts made by Shri

Savant, the applicant’s counsel. I, therefore, dismiss it.

39. Shri Savant, at this juncture, wants this Court to

restrain the respondent-plaintiff from withdrawing the decretal

amount for at least eight weeks, so the applicant could explore

his remedial options. The Respondent's counsel, of course,

strongly opposes this plea.

As the intervention application in a disposed of suit has

been summarily rejected, I see no justification for the Court to

grant such relief as the applicant sought. The request stands

rejected.

[DAMA SESHADRI NAIDU, J.]


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