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High Court Of Calcutta
Mrinal Kanti Sinha, J.
Anmol Biscuits (P) Ltd. : Appellant
Versus
Amar Chand Nag : Respondent
C.O. No. 1480 of 2007
Decided On : Dec 24,2010
ORDER 1 RULE 10(2) CPC - IMPLEADMENT OF PROPER PARTY - SPECIFIC PERFORMANCE OF CONTRACT - NECESSARY PARTY - INTEREST IN SUBJECT MATTER - EFFECTIVE ADJUDICATION OF CONTROVERSY - COURT'S NEED - CHANGE IN SUIT'S CHARACTER - THIRD PARTY - STRANGER TO CONTRACT - INDEPENDENT TITLE AND POSSESSION - ADVERSE TO VENDOR'S TITLE - TRANSFER PENDING LITIGATION - LIS PENDENS.
Fact of the Case:
In a suit for specific performance of contract, the plaintiff sought to add the present applicant as a party, alleging that the applicant was in possession of the factory premises that were the subject matter of the suit. The applicant opposed the addition, arguing that it was not a necessary or proper party to the suit and that its presence was not necessary for complete and effective adjudication of the controversy. The trial court rejected the applicant's petition, and the applicant filed a revision petition challenging the trial court's order.
Finding of the Court:
The court held that the trial court was correct in rejecting the applicant's petition. The court found that the applicant had an interest in the subject matter of the suit, as it was in possession of the factory premises. The court also found that the applicant's presence was necessary for complete and effective adjudication of the controversy, as the plaintiff sought damages and compensation in addition to specific performance of the contract. The court further held that the applicant was not a third party or a stranger to the contract, and that it did not have independent title and possession adversely to the vendor's title. The court also held that the addition of the applicant as a party did not change the character of the suit.
Issues: 1. Whether the applicant was a necessary or proper party to the suit. 2. Whether the applicant's presence was necessary for complete and effective adjudication of the controversy. 3. Whether the applicant was a third party or a stranger to the contract. 4. Whether the applicant had independent title and possession adversely to the vendor's title. 5. Whether the addition of the applicant as a party changed the character of the suit.
Ratio Decidendi: 1. A person who has an interest in the subject matter of a suit is a proper party to the suit, even if they are not a party to the contract that is the subject of the suit. 2. The presence of a proper party is necessary for complete and effective adjudication of a controversy if their absence would result in an ineffective decree. 3. A third party or a stranger to a contract is not a necessary or proper party to a suit for specific performance of the contract. 4. A person who has independent title and possession adversely to the vendor's title is not a necessary or proper party to a suit for specific performance of the contract. 5. The addition of a proper party to a suit does not change the character of the suit.
Final Decision: The court dismissed the applicant's revision petition and upheld the trial court's order rejecting the applicant's petition to be struck out as a party to the suit.
1. HEARD the learned Advocates appearing for the parties. This revisional application has been directed against the Order No. 60 dated 13th February, 2007 passed by Sri R. Chakraborty, learned Civil Judge (Senior Division), 4th Court at Alipore in Title Suit No. 60 of 2001, whereby the learned Civil Judge concerned has rejected the petition of the defendant No. 5 under Order 1 Rule 10(2) read with Section 151 of the CODE OF CIVIL PROCEDURE, 1908 praying for expunging or striking out the name of the defendant No. 5 Company from the cause title of the plaint.
2. IT is the case of the applicant/defendant No. 5 that the opposite party No. 2 M/s. Golden Biscuits Co. Pvt. Ltd. was the defendant No.1 and opposite party No. 2 was the absolute owner of the factory premises at Panchghara. The West Bengal Financial Corporation (WBFC) had charge over said property and the said defendant-company in liquidation was wound up by an order dated March 10, 1999 passed by the Hon'ble High Court, Calcutta and the official liquidator was directed to take possession of the assets of the defendant No. 1 company/opposite party No. 2 including this said factory premises. During pendency of the said winding up proceeding the said Corporation took notional possession of the land and machinery of the said company in liquidation on October 16, 1998, and formal possession was taken on December 8,1988. Pursuant to an application filed by the said Corporation, Hon'ble High Court, Calcutta, by an order dated October 4, 1999, granted liberty to the said Corporation to sell the plant and machinery and other assets of the said company subject to confirmation of sale by the Hon'ble High Court. The said order of winding up was recalled by the Hon'ble High Court by an order dated 3rd March, 2000 on the basis of terms of settlement arrived by and between the management of the company in liquidation and the creditor, and thereafter the assets of the company were repossessed by the Company in liquidation on March 22, 2000, and the said order of winding up was again revived on 12th June, 2001, but in view of the default committed by the company or opposite party No. 2 the said Corporation again took possession of assets and properties on 16th August, 2001. The said Corporation in pursuance of order of the Hon'ble High Court dated 4th October, 1999, conducted the sale and the sale was completed in favour of M/s. Anmol Snacks Limited, and by an order dated 2nd September, 2003, the Hon'ble High Court confirmed the sale in favour of Anmol Snacks Limited at price of Rs. 37.5 lakhs and the said Corporation handed over possession to the said purchaser M/s. Anmol Snacks Limited on 1st October, 2003 and since then the said M/s. Anmol Snacks Limited being the successful purchaser has been in possession of the assets and premises of the said factory as an absolute owner thereof.
In view of the said circumstances the petitioner being a separate independent company having no nexus either with the said M/s. Anmol Snacks Limited or with the defendant/ opposite party No.2 and not in possession of the said factory premises at Panchghara, having independent legal entity and neither a subsidiary nor a sister concern of said M/s. Anmol Snacks Limited, and having respective memorandum of association and article of association and registered offices and factory at different places, is an unnecessary party and the present petitioner has illegally, wrongfully and improperly been made a party in the said suit though he is a unnecessary party in the said suit. The present applicant/ petitioner filed an application under Order 1 Rule 10 (2) read with Section 151 of the CODE OF CIVIL PROCEDURE, 1908 before the learned Court below praying for expunging or striking out the name of the petitioner-company from the cause title of the plaint of the said suit, but hearing the said application the learned Court below was pleased to reject the said application of the petitioner.
3. BEING aggrieved b
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