Important Point
In the peculiar circumstances of the case, this is not a fit case to go into the merits and no interference is called for under Article 136 of the Constitution. The proper remedy in by way of a fresh suit.

Headnote:Constitution of India-Art. 136 -Appeal by Special leave-Dispute requiring evidence to go into the merits-Not a fit case for interference under Article 136 of Constitution - Proper course - Separate suit - Directions given to Trial Court about amount deposited by original plaintiff-Appeal dismissed accordingly. (C.P.C. 1908-Order 22 Rule 10, Order 1 Rule 10 and Section 146).
Held : We have set out the respective contentions of the parties in sufficient detail. We may state that the learned senior counsel for the appellant has, and in our view, rightly not relied upon Order 22 Rule 10 CPC as it is nobody’s case that there is an assignment or devolution of interest during the pendency of the suit. So far as the reasons given by the trial Court and the High Court for rejecting the case of the appellant under Order 1 Rule 10 and Section 146 CPC are concerned, we do not think it proper to go into them in detail inasmuch as, in our opinion, the above issues have to be thrashed out in a properly constituted suit. We think it neither desirable nor in the interests of parties, to go into the above questions in an appeal arising out of an interlocutory application. The problem is that if we interpret the agreements, for the purpose of the application under Order 1 Rule 10 or Section 146 CPC, our view is likely to prejudice any decision on the same questions if taken up either in this suit or in any separate suit that may be filed by the appellant. The reason is this. Any decision in favour of the appellant to implead him as a plaintiff would necessarily require us to go into the rights of the appellant-developer vis-a-vis the original plaintiff-builder and vis-a-vis the defendants, owners-under the two agreements. This may prejudice the case of the owners and the legal representatives of the builder in this very suit. Similarly, any decision against the appellant will prejudice the appellant’s case if he files an independent suit. In the above-said peculiar circumstances of the case we are of the view that this is not a fit case to go into the merits and no interference is called for under Article 136 of the Constitution of India. The plaintiff, if he is so advised, may pursue his remedies by way of a fresh suit. The observations or findings of the trial Court or of the High Court in the impugned judgments as to the rights of the plaintiff under the agreement dated 26.2.88 - whether the observations or findings are in favour or against the plaintiff - are kept open for adjudication in such a suit. We are not to be understood as having said anything upon the maintainability or non-maintainability of any such suit or about the rights of any of the parties who may be impleaded therein. We have stated earlier that Rs. 21 lakhs deposited by the original plaintiff in this suit are kept in fixed deposit. As stated earlier there is a dispute between the parties in regard to this amount. The appellant says that he provided these monies to the deceased plaintiff but the legal representatives of the deceased plaintiff contend that these monies were not provided by the appellant but were the monies belonging to the deceased plaintiff himself. As this is a dispute which cannot be resolved in these proceedings without taking evidence, we are of the view that the trial Court should be directed to keep the said amount of Rs. 21 lakhs and interest thereon in its control for a period of eight weeks from today so as to enable the appellant to seek appropriate relief in a duly constituted suit. We order accordingly. If no orders are obtained by the appellant within the above said period in his favour, it shall be open to the trial Court to dispose of any application for withdrawal of the said monies which may be filed by the plaintiff’s legal representatives, in accordance with law. We are not to be understood as deciding anything in favour or against the appellant or other parties to the suit in regard to the said amount and interest thereon, lying in deposit in the trial Court. Subject to the above, this appeal is dismissed. In the circumstances, there will be no order as to costs. (Paras 13 to 15)

Judgment

M. Jagannadha Rao, J. - Leave granted.

2. This is an appeal against the judgment of the Gujarat High Court dated 2.3.1998 dismissing C.R.A. No. 1342/96 filed under Section 115 of the Code of Civil Procedure. By that judgment, the order of the trial Court dated 1.8.1996, dismissing an application filed by the appellant under Order 1 Rule 10, Section 146 and Order 22 Rule 10 CPC for impleadment as a plaintiff in the suit, was confirmed.

3. For the purpose of appreciating the questions raised before us, it is necessary to state the following facts:

The appellant is a third party to the Suit No. 1761 of 1988 which was pending before the City Civil Judge, Ahmedabad. The suit was filed by a builder, one Amrit M. Patel, who was the predecessor-in-interest of respondents 1A to 1C, against three defendants, viz (1) Arjun Bhai Jayanti Lal Parikh (2) Nirmalaren Arjunbhai Parikh and (3) Indrajit Arjunlal Bhai Parikh (predecessors-in-interest of Respondents 2A to 4). The relief claimed was for specific performance of an agreement dated 4.2.1982 executed by the three defendants-owners of the property (hereinafter called the ‘owners’) in favour of the said Amrit Mohan Lal Patel (Plaintiff) (hereinafter called the ‘Builder’). The said builder was the sole proprietor of a firm called ‘Star Builders’. The plaintiff entered into the above-said agreement with the defendants for the purposes of development of the defendants’ property by construction of flats. Ultimately, after the land was developed and the flats were constructed, the owners and the builder were to join in the Sale deeds to be executed in favour of the purchasers of the flats. Under the agreement, it was also agreed that the defendants-owners would get Rs. 400/- sq. ft. of built up area as mentioned in clause 15 of the agreement. Further, the builder was to pay Rs. 3 lakhs on or before the execution of the agreement, Rs. 21 lakhs within 3 months from date of agreement and 22 lakhs from the date of payment of Rs. 21 lakhs. The builder paid Rs. 3 lakhs as aforesaid and, according to defendants, he committed default in payment of Rs. 21 lakhs as well as of the further amount of Rs. 22 lakhs. Simultaneously with the above-said agreement, the three owners executed an irrevocable General Power of Attorney dated 4.2.1982 in favour of the builder.

4. Six years later, the plaintiff-builder entered into an agreement dated 26.2.1988 with the appellant, Ajmera Housing Corporation (hereinafter called the ‘Developer’) under which the appellant was to undertake the development of the property. On the same day, the plaintiff executed an irrevocable Power of Attorney in favour of the appellant. The points that arise in the revision mainly turn upon the interpretation of the clauses in this agreement dated 26.2.1988 by the builder in favour of the appellant-developer.

5. On the ground that the defendants-owners did not allow the plaintiff-builder to develop the property, the builder filed the present suit on 8.4.1988 impleading the owners as defendants Nos. 1 to 3 and claiming various reliefs, i.e. specific performance of the agreement dated 4.2.1982, certain injunctions in regard to the property and possession of that part of the property which was in the possession of the owners. An alternative prayer was also made for damages in a sum of Rs. 81 lakhs against the owners. Pending the suit, one of the owners Arjun Bhai Jayanti Lal Parikh died and his legal representatives were brought on record.

6. After the filing of the suit, the plaintiff builder, Sri Amrit Mohan Patel died on 18.4.1995 and his legal representatives were also brought on record. During the pendency of the suit, a deposit of Rs. 21 lakhs was made by the plaintiff-builder into Court. There is a dispute between the plaintiff’s legal representatives and the appellant-developer in regard to the said amount of Rs. 21 lakhs. The legal representatives of the plaintiff-builder contend that the said amount of Rs. 21 lakhs belongs

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1998 Supreme(SC) 743

Important PointIn the peculiar circumstances of the case, this is not a fit case to go into the merits and no interference is called for under Article 136 of the Constitution. The proper remedy in by way of a fresh suit.

Cases Referred (1)

Important Point
In the peculiar circumstances of the case, this is not a fit case to go into the merits and no interference is called for under Article 136 of the Constitution. The proper remedy in by way of a fresh suit.