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High Court Of Calcutta
AJIT KUMAR SENGUPTA , NURE ALAM CHOWDHURY
TERAI TEA CO.PVT.LTD. - Appellant
Versus
KUMKUM MITTAL - Respondent
Extraordinary Suit 1 Of 1985
Decided On : 09/22/1993
ORDER 1, RULE 10 - ADDITION OF PARTIES - APPEALABILITY OF ORDER - PERSON AGGRIEVED - RIGHT TO BE ADDED AS PARTY - DIRECT INTEREST IN SUBJECT MATTER OF SUIT - AGREEMENT FOR SALE - SPECIFIC PERFORMANCE SUIT - TRANSFERRED SUIT - JURISDICTION OF COURT - DISCRETION OF COURT.
Fact of the Case:
Terai Tea Co. (P) Ltd. appealed against the dismissal of its application to be added as a party defendant in a suit challenging certain dealings and transactions entered into between the plaintiff and some of the respondents, including the possession of Dharanipur Tea Estate. The appellant had instituted a suit for specific performance of an agreement for the sale of the same tea estate against the plaintiff and the third respondent, which was decreed and later set aside by the Supreme Court, directing that the specific performance suit and the transferred suit be tried together.
Finding of the Court:
The court held that the appellant had a direct interest in the subject matter of both suits and that its addition as a party defendant was necessary to avoid multiplicity of judicial proceedings and to ensure a complete and effective adjudication of the matters in dispute.
Issues: 1. Whether the order refusing to add the petitioner as a party is an appealable order? 2. Whether the appellant has a direct interest in the subject matter of the litigation and is entitled to be added as a party under Order 1, Rule 10 of the Code of Civil Procedure?
Ratio Decidendi: 1. The court held that the order refusing to add the petitioner as a party is an appealable order as it affects the appellant's right to participate in the proceedings and may ultimately deprive it of a right that it asserts. 2. The court held that the appellant has a direct interest in the subject matter of the litigation as it has filed a suit for specific performance of an agreement for the sale of the same tea estate that is the subject matter of the transferred suit. The court also noted that the appellant is vitally interested in the outcome of the transferred suit as it may affect its title to the tea estate.
Final Decision: The court allowed the appeal, set aside the order under appeal, and directed that the appellant be added as a party defendant in the transferred suit.
( 1 ) THIS appeal is directed against the judgment and order dated 5/07/1993 passed by the Court of the first instance dismissing the application of the appellant, Terai Tea Company (P) Ltd. , for being added as a party defendant.
( 2 ) SHORTLY stated, the facts are that the Extra Ordinary Suit No. 1 of 1985 was instituted by Dhirendra Nath Bhowmick, since deceased, and Smt. Reba Bhowmick the respondent No. 3 herein challenging, inter alia, certain dealings and transactions allegedly entered into between them and some of the respondents herein, in respect of, inter alia, Dharanipur Tea Estate situate in the District of Jalpaiguri and for restoration of possession of the said tea estate. The suit was instituted in the Court of the Assistant District Judge, Jalpaiguri and was marked Title Suit No. 78 of 1984.
( 3 ) THE above suit was subsequently transferred to this Court from the Court of the Assistant District Judge, Jalpaiguri under Cl. 13 of the Letters Patent and was marked Extra Ordinary Suit No. 1 of 1985, (hereinafter referred to as the "transferred Suit" ).
( 4 ) IN or about March 1990, the appellant instituted a suit being No. 240 of 1990 (hereinafter referred to as "suit for Specific Performance") against the said Dhirendra Nath Bhowmick, since deceased, and Smt. Reba Bhowmick the respondent No. 3 herein for specific performance of an agreement dated 15/01/1990, the subject matter whereof was the aforesaid tea estate.
( 5 ) THE suit for specific performance was decreed on or about 2/08/1991. The New Red Bank Tea Co. Pvt. Ltd. , the respondent No. 9, made an application for setting aside the said decree dated 2/08/1991. Having failed to obtain the said order, the respondent No. 9 preferred an appeal before the Supreme Court of India by way of Special Leave Petition.
( 6 ) BY a judgment and order dated 9/09/1991, the Supreme Court set aside the order and decree dated 2/08/1991 passed by this Court. The said order is as follows :-"special leave granted. After hearing counsel on both sides and perusing the material before us we are convinced that the decree for specific performance granted by the Court in Suit No. 240 of 1990 cannot be sustained. We have come to this conclusion in view of pendency of the earlier suit, i. e. , Suit No. 8 of 1984 filed by Dhirendra Nath Bhowmick and his wife for a declaration that the transfer of controlling interest of shares in the petitioner company was not valid and prayed for a declaration that the said Dhirendra Nath Bhowmick has all the legal and equitable right, title and interest in respect of the said Dharanipur Tea Estate and for restoration of possession. In fairness that suit and the present suit for specific performance ought to have been tried together. The suit for specific performance could not have been decreed by consent without determining the legal title to and factum of possession of the suit property. The title and possession could not have been decided without impleading the petitioner as a party to the suit. It is strange that a Receiver was appointed to take possession of the property with the help of the police. We set aside the decree for specific performance made in Suit No. 240 of 1990 and request the High Court to try the Suit No. 8 of 1984 and Suit No. 240 of 1990 together. We also set aside the order appointing the Receiver. The Receiver is directed to deliver back the possession of the property forthwith to the petitioner, The New Red Bank Tea Company Pvt. Ltd. We are told that the petitioner has not filed the written statement in O. S. No. 8 of 1984. It is directed that it must file the written statement within four weeks from the date of furnishing a copy of the plaint. The High Court may dispose of the suits as expeditiously as possible. Liberty is reserved to the parties to move the High Court for any interim relief. We are told that pursuant to the decree for specific performance, the sale deed has already been executed and re
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