Hari Singh Vs. Padmawati Arts Creation Pvt. Ltd. and ors - Court Judgment

SooperKanoon Citationsooperkanoon.com/1160248
CourtRajasthan Jodhpur High Court
Decided OnJul-31-2014
AppellantHari Singh
RespondentPadmawati Arts Creation Pvt. Ltd. and ors
Excerpt:
-1- in the high court of judicature for rajasthan at jodhpur. judgment db civil special appeal no.486/2013 in sb civil writ petition no.7363/2010 hari singh v. padmawati arts creation pvt.ltd.& ors.date of judgment :: 31st july, 2014 hon'ble mr.justice govind mathur hon'ble mr.justice atul kumar jain mr.m.r.singhvi, senior advocate assisted by mr.hukum singh, for the appellant. mr.ram rakh vyas].mr.o.p.mehta ].for the respondents...by the court : (per hon'ble mathur,j.) reportable through this appeal the appellant is challenging the judgment dated 1.4.2013 passed by learned single judge affirming the order dated 7.7.2010 passed by the court of learned additional district judge (fast track) no.3, jodhpur. the brief but necessary facts forming background of the instant controvers.are that a portion of the property known as “jalam vilas”. was sold to padmawati art creation private limited through a sale deed registered on 20.4.2005. the petitioner-appellant claiming a right of pre-emption filed a suit before the court on 20.4.2006 for having possession of the property concerned. respondent -2- ajay singh on 15.12.2006 submitted an application as per provisions of order 1 rule 10 code of civil procedure, 1908 to become party to the proceedings. shri ajay singh claimed a better right of pre-emption vis-a-vis the plaintiff petitioner. by the order dated 7.7.2010 the trial court accepted the application and permitted shri ajay singh to join the suit proceedings as party. to challenge the order aforesaid the plaintiff petitioner approached this court by way of filing a petition for writ that came to be dismissed by the judgment impugned dated 1.4.2013, hence this appeal is before us. while dismissing the writ petition learned single bench was of the opinion as under:- “7. having heard the learned counsel for the parties, this court is of the opinion that the impugned order cannot be validly assailed by the petitioner in the present writ petition. impleadment under order 1 rule 10 cpc, is a discretionary order by the trial courts, which is usually passed to curtail the multiplicity of the litigation. if the applicant has prima-facie shown before the trial court that he has some interest in the property in question, and he has right to have a say in the matter, which can be seen in such averments and semblance of evidence produced before the trial court, the impleadment of a party under order 1 rule 10 cpc cannot be quashed in writ jurisdiction under article 227 of this court. any further observations or determination of the rights, duties and obligation of rival claims of the parties at this stage by this court can only affect the trial adversely, which cannot be done, to say the least. -3- 10. in the case of jai singh and ors.v/s municipal corporation of delhi and anr. reported in (2010) 9 scc385in para 15 thereof, the hon'ble apex court uses the words “the exercise of jurisdiction must be within the well- recognized constraints. it cannot be exercised like a “bull in a china shop”., to correct all errors of judgment of a court or tribunal, acting within the limits of its jurisdiction. 11. in the perspective of the aforesaid legal position, the impugned order passed by learned trial court allowing the applicant's application under order 1 rule 10 cpc calls for no interference by this court under article 227 of the constitution of india and the writ petition filed by the petitioner-plaintiff deserves dismissal.”. learned single judge refused to interfere with the order impugned looking to the narrow scope of the authority of the high court under article 227 of the constitution of india. in appeal, the submission of learned counsel for the appellant is that learned single bench failed to appreciate that acceptance of the application under order 1 rule 10 code of civil procedure in the case in hand is nothing but permitting the applicant to claim a decree for possession of suit property on basis of pre-emption. as such, the nature of the application is nothing but of filing a suit i.e.otherwise barred by limitation. the trial court by permitting the participation of the respondent applicant in suit proceedings has committed a grave jurisdictional error and learned single judge failed to appreciate that. -4- per contra, the stand of shri ram rakh vyas, learned counsel for respondent shri ajay singh is that the original court adjudicated an application under order 1 rule 10 code of civil procedure and by taking into consideration all relevant aspects arrived at the conclusion that the suit could have not been adjudicated with the object of imparting justice between the parties without getting the applicant included as party to the proceedings. with regard to the argument advanced by shri m.r.singhvi, learned senior advocate, about the effort of the applicant to get his inaction condoned through the application, it is submitted that neither the purchaser nor the plaintiff gave any notice about transaction and the applicant came to know about entire deal only in the month of december, 2006 and immediately thereafter he filed the application to become party to the proceedings, as such, no delay was there even for filing a regular suit. the applicant instead of filing a suit filed an application as per provisions of order 1 rule 10 code of civil procedure only to avoid multiplicity of litigation. it is emphasised that learned single judge once refused to invoke the authority of the high court under article 227 of the constitution of india, then there is no reason to take any other view in appellate jurisdiction of this court. arguments heard. we are having no doubt about limitations of the high court while exercising the powers of judicial superintendence. the supervisory jurisdiction under article -5- 227 is not meant for correcting mere errors.irregularities and even minor illegalities, hence, it must always be exercised with absolute caution and sparingly. at the same time the authority under article 227 should be exercised without any hesitation, if a tribunal or a court subordinate exceeds jurisdiction vested with it or fails to exercise the jurisdiction vested in it, or exercise the jurisdiction in shockingly arbitrary manner or commits a patent illegality. while examining a case demanding exercise of authority under article 227 of the constitution of india, the court is required to see the implication and amplitude of the action impugned. if an action is open for rectification by the original court itself or in an appellate jurisdiction, then the court should restrain itself from exercising powers under article 227 of the constitution of india, but wherever and whenever the wrong lays foundation of an error touching to the jurisdiction, then such wrong should be uprooted by the high court exercising its superintendence over the tribunals and the courts subordinate. the issue under consideration, in the instant matter, before the court is that whether the original court acted well within its jurisdiction while accepting the application preferred by respondent shri ajay singh under order 1 rule 10 code of civil procedure in the set of facts in hand and the law applicable?. as already stated, the plaintiff petitioner filed the suit on 20.4.2006 for possession of the suit property claiming his right of pre-emption. a suit for pre-emption -6- as per section 21 of the rajasthan pre-emption act, 1966 (hereinafter referred to as 'the act of 1966') can be filed within the limitation prescribed, that is as under:- “21. special provision for limitation.-(1) subject to the provisions contained in the proviso to sub-section (1) of section 5, the period of limitation, in any case not provided for by article 97 of the firs.schedule to the limitation act, 1965 (central act 36 of 1963) for a suit to enforce the right of pre-emption under this act shall, notwithstanding anything contained in article 113 of the said schedule of the said act, be one year from the date on which,- (a)in the case of sale made without a registered sale deed, the purchaser takes under the sale physical possession of any part of the property sold, and (b)in the case of a foreclosure, the final decree for foreclosure is passed. (2)the period of limitation for a suit to enforce the right of pre-emption which has accrued before the commencement of this act shall, notwithstanding anything contained in the said limitation act, in no case exceed one year from the commencement of this act.”. the purchaser took possession of the property in question on registration of the sale deed, hence, to enforce a right of pre-emption, the suit preferred by the plaintiff petitioner presented on 20.4.2006, was within the limitation prescribed. while contesting the application preferred by respondent shri ajay singh as per provisions of order 1 rule 10 code of civil procedure an objection -7- inter-alia raised by the plaintiff was that in the garb of the application the applicant want to become plaintiff who has otherwise lost his right to file a suit being barred by limitation. the trial court while deciding the objection aforesaid held that the limitation for filing a suit for pre-emption is one year, but no time limit is prescribed for becoming party to the proceedings. true it is, no limitation is there to file an application of such nature, but, in the case in hand in the application itself the applicant averred that he failed to file suit to claim his pre-emptory right as no information was given to him about the sale of the property, thus, the court have to see true nature of the application and the implications in the event of its acceptance. it is also stated in the application that “applicant is having a better pre-emptory right in comparison to the pre-emptory rights of the plaintiff, hence, he is having firs.purchase right and by this application he is making a demand to become party and he is ready and willing to purchase the property with the cost proposed by the plaintiff.”. (translation of the averment made in vernacular in english is made by the court).this assertion is quite clear and conveys only one meaning that the applicant is claiming a decree of possession by becoming party to the proceedings and, therefore, he want to become party to the suit proceedings as a plaintiff. the act of 1966 nowhere puts any embargo either on seller or on purchaser to give such notice of transaction. the limitation for availing remedy by claiming a right of pre- emption is required to be determined in accordance with the eventualities given under section 21 of the act of 1966 read with article 97 of the limitation act. the applicant, -8- if would have approached to the civil court to claim his pre-emptory right by way of filing a civil suit on the day he filed the application under order 1 rule 10 code of civil procedure, then the suit would have been barred by limitation and the court would had no jurisdiction to entertain that and he would have been non-suited on the ground of limitation itself. the applicant just to came out from such jurisdictional impediment adopted the route of filing the application under order 1 rule 10 code of civil procedure. this effort made by the applicant is nothing but to get a decree of possession on basis of a right of pre- emption for which he has already lost a right of adjudication. no one can be permitted to do or avail same thing through a by-pass that he cannot get through the regular course. it is also well settled law that pre-emptor must come with clear facts in his plaint, so that he may lead his evidence accordingly and may neither improve his case during the trial, nor may make departure therefrom. as already discussed, applicant respondent ajay singh is claiming his rights as pre-emptor with assertion that he is having a better pre-emptory right vis-a-vis the present plaintiff, therefore, he shall be added as a plaintiff in the event of acceptance of his application. consequent thereto he would be bringing additional facts on record which are not otherwise part of the plaint. it shall be an abuse of the process, if he be permitted to do so after loosing his right to file a suit. learned trial court while arriving at the conclusion that no limitation is prescribed for filing an application under order 1 rule 10 code of -9- civil procedure, failed to appreciate that in the instant matter the application preferred is having a nature of filing a suit for pre-emption. the application as such is not an application simplicitor to join as a party to the proceedings, but to have a decree of possession that could have been availed by way of filing a suit for possession by claiming pre-emption. such a suit admittedly would have been barred by limitation, if would have been filed on the day the application under order 1 rule 10 code of civil procedure was filed. the court on that day had no jurisdiction to entertain the suit being barred by limitation. the trial court, on acceptance of the application, has assumed the jurisdiction that it lost earlier. the jurisdictional error, thus, is apparent. the appeal, hence, is allowed. the judgment dated 1.4.2013 passed by learned single judge and also the order dated 7.7.2010 passed by the court of learned additional district judge (fast track) no.3, jodhpur are set aside. the application preferred under order 1 rule 10 code of civil procedure by respondent ajay singh is dismissed. no order to costs. (atul kumar jain),j. (govind mathur),j. mathuriakk/ps
Judgment:

-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.

JUDGMENT

DB Civil Special Appeal No.486/2013 In SB Civil Writ Petition No.7363/2010 Hari Singh v.

Padmawati Arts Creation PVT.LTD.& ORS.Date of Judgment :: 31st July, 2014 HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE ATUL KUMAR JAIN Mr.M.R.Singhvi, Senior Advocate assisted by Mr.Hukum Singh, for the appellant.

Mr.Ram Rakh Vyas].Mr.O.P.Mehta ].for the respondents...BY THE COURT : (PER HON'BLE MATHUR,J.) REPORTABLE Through this appeal the appellant is challenging the judgment dated 1.4.2013 passed by learned Single Judge affirming the order dated 7.7.2010 passed by the court of learned Additional District Judge (Fast Track) No.3, Jodhpur.

The brief but necessary facts forming background of the instant controveRs.are that a portion of the property known as “Jalam Vilas”.

was sold to Padmawati Art Creation Private Limited through a sale deed registered on 20.4.2005.

The petitioner-appellant claiming a right of pre-emption filed a suit before the court on 20.4.2006 for having possession of the property concerned.

Respondent -2- Ajay Singh on 15.12.2006 submitted an application as per provisions of Order 1 Rule 10 Code of Civil Procedure, 1908 to become party to the proceedings.

Shri Ajay Singh claimed a better right of pre-emption vis-a-vis the plaintiff petitioner.

By the order dated 7.7.2010 the trial court accepted the application and permitted Shri Ajay Singh to join the suit proceedings as party.

To challenge the order aforesaid the plaintiff petitioner approached this Court by way of filing a petition for writ that came to be dismissed by the judgment impugned dated 1.4.2013, hence this appeal is before us.

While dismissing the writ petition learned Single Bench was of the opinion as under:- “7.

Having heard the learned counsel for the parties, this Court is of the opinion that the impugned order cannot be validly assailed by the petitioner in the present writ petition.

Impleadment under Order 1 Rule 10 CPC, is a discretionary order by the trial courts, which is usually passed to curtail the multiplicity of the litigation.

If the applicant has prima-facie shown before the trial court that he has some interest in the property in question, and he has right to have a say in the matter, which can be seen in such averments and semblance of evidence produced before the trial court, the impleadment of a party under Order 1 Rule 10 CPC cannot be quashed in writ jurisdiction under Article 227 of this Court.

Any further observations or determination of the rights, duties and obligation of rival claims of the parties at this stage by this Court can only affect the trial adversely, which cannot be done, to say the least.

-3- 10.

In the case of Jai Singh and ORS.V/s Municipal Corporation of Delhi and Anr.

reported in (2010) 9 SCC385in para 15 thereof, the Hon'ble Apex Court uses the words “the exercise of jurisdiction must be within the well- recognized constraints.

It cannot be exercised like a “bull in a china shop”., to correct all errors of judgment of a court or tribunal, acting within the limits of its jurisdiction.

11.

In the perspective of the aforesaid legal position, the impugned order passed by learned trial court allowing the applicant's application under Order 1 Rule 10 CPC calls for no interference by this Court under Article 227 of the Constitution of India and the writ petition filed by the petitioner-plaintiff deserves dismissal.”

.

Learned Single Judge refused to interfere with the order impugned looking to the narrow scope of the authority of the High Court under Article 227 of the Constitution of India.

In appeal, the submission of learned counsel for the appellant is that learned Single Bench failed to appreciate that acceptance of the application under Order 1 Rule 10 Code of Civil Procedure in the case in hand is nothing but permitting the applicant to claim a decree for possession of suit property on basis of pre-emption.

As such, the nature of the application is nothing but of filing a suit i.e.otherwise barred by limitation.

The trial court by permitting the participation of the respondent applicant in suit proceedings has committed a grave jurisdictional error and learned Single Judge failed to appreciate that.

-4- Per contra, the stand of Shri Ram Rakh Vyas, learned counsel for respondent Shri Ajay Singh is that the original court adjudicated an application under Order 1 Rule 10 Code of Civil Procedure and by taking into consideration all relevant aspects arrived at the conclusion that the suit could have not been adjudicated with the object of imparting justice between the parties without getting the applicant included as party to the proceedings.

With regard to the argument advanced by Shri M.R.Singhvi, learned Senior Advocate, about the effort of the applicant to get his inaction condoned through the application, it is submitted that neither the purchaser nor the plaintiff gave any notice about transaction and the applicant came to know about entire deal only in the month of December, 2006 and immediately thereafter he filed the application to become party to the proceedings, as such, no delay was there even for filing a regular suit.

The applicant instead of filing a suit filed an application as per provisions of Order 1 Rule 10 Code of Civil Procedure only to avoid multiplicity of litigation.

It is emphasised that learned Single Judge once refused to invoke the authority of the High Court under Article 227 of the Constitution of India, then there is no reason to take any other view in appellate jurisdiction of this Court.

Arguments heard.

We are having no doubt about limitations of the High Court while exercising the powers of judicial superintendence.

The supervisory jurisdiction under Article -5- 227 is not meant for correcting mere errORS.irregularities and even minor illegalities, hence, it must always be exercised with absolute caution and sparingly.

At the same time the authority under Article 227 should be exercised without any hesitation, if a tribunal or a court subordinate exceeds jurisdiction vested with it or fails to exercise the jurisdiction vested in it, or exercise the jurisdiction in shockingly arbitrary manner or commits a patent illegality.

While examining a case demanding exercise of authority under Article 227 of the Constitution of India, the court is required to see the implication and amplitude of the action impugned.

If an action is open for rectification by the original court itself or in an appellate jurisdiction, then the court should restrain itself from exercising powers under Article 227 of the Constitution of India, but wherever and whenever the wrong lays foundation of an error touching to the jurisdiction, then such wrong should be uprooted by the High Court exercising its superintendence over the tribunals and the courts subordinate.

The issue under consideration, in the instant matter, before the Court is that whether the original court acted well within its jurisdiction while accepting the application preferred by respondent Shri Ajay Singh under Order 1 Rule 10 Code of Civil Procedure in the set of facts in hand and the law applicable?.

As already stated, the plaintiff petitioner filed the suit on 20.4.2006 for possession of the suit property claiming his right of pre-emption.

A suit for pre-emption -6- as per Section 21 of the Rajasthan Pre-Emption Act, 1966 (hereinafter referred to as 'the Act of 1966') can be filed within the limitation prescribed, that is as under:- “21.

Special provision for limitation.-(1) Subject to the provisions contained in the proviso to sub-section (1) of section 5, the period of limitation, in any case not provided for by article 97 of the FiRs.Schedule to the Limitation Act, 1965 (Central Act 36 of 1963) for a suit to enforce the right of pre-emption under this Act shall, notwithstanding anything contained in article 113 of the said schedule of the said Act, be one year from the date on which,- (a)in the case of sale made without a registered sale deed, the purchaser takes under the sale physical possession of any part of the property sold, and (b)in the case of a foreclosure, the final decree for foreclosure is passed.

(2)The period of limitation for a suit to enforce the right of pre-emption which has accrued before the commencement of this Act shall, notwithstanding anything contained in the said Limitation Act, in no case exceed one year from the commencement of this Act.”

.

The purchaser took possession of the property in question on registration of the sale deed, hence, to enforce a right of pre-emption, the suit preferred by the plaintiff petitioner presented on 20.4.2006, was within the limitation prescribed.

While contesting the application preferred by respondent Shri Ajay Singh as per provisions of Order 1 Rule 10 Code of Civil Procedure an objection -7- inter-alia raised by the plaintiff was that in the garb of the application the applicant want to become plaintiff who has otherwise lost his right to file a suit being barred by limitation.

The trial court while deciding the objection aforesaid held that the limitation for filing a suit for pre-emption is one year, but no time limit is prescribed for becoming party to the proceedings.

True it is, no limitation is there to file an application of such nature, but, in the case in hand in the application itself the applicant averred that he failed to file suit to claim his pre-emptory right as no information was given to him about the sale of the property, thus, the court have to see true nature of the application and the implications in the event of its acceptance.

It is also stated in the application that “applicant is having a better pre-emptory right in comparison to the pre-emptory rights of the plaintiff, hence, he is having fiRs.purchase right and by this application he is making a demand to become party and he is ready and willing to purchase the property with the cost proposed by the plaintiff.”

.

(Translation of the averment made in vernacular in English is made by the Court).This assertion is quite clear and conveys only one meaning that the applicant is claiming a decree of possession by becoming party to the proceedings and, therefore, he want to become party to the suit proceedings as a plaintiff.

The Act of 1966 nowhere puts any embargo either on seller or on purchaser to give such notice of transaction.

The limitation for availing remedy by claiming a right of pre- emption is required to be determined in accordance with the eventualities given under Section 21 of the Act of 1966 read with Article 97 of the Limitation Act.

The applicant, -8- if would have approached to the civil court to claim his pre-emptory right by way of filing a civil suit on the day he filed the application under Order 1 Rule 10 Code of Civil Procedure, then the suit would have been barred by limitation and the court would had no jurisdiction to entertain that and he would have been non-suited on the ground of limitation itself.

The applicant just to came out from such jurisdictional impediment adopted the route of filing the application under Order 1 Rule 10 Code of Civil Procedure.

This effort made by the applicant is nothing but to get a decree of possession on basis of a right of pre- emption for which he has already lost a right of adjudication.

No one can be permitted to do or avail same thing through a by-pass that he cannot get through the regular course.

It is also well settled law that pre-emptor must come with clear facts in his plaint, so that he may lead his evidence accordingly and may neither improve his case during the trial, nor may make departure therefrom.

As already discussed, applicant respondent Ajay Singh is claiming his rights as pre-emptor with assertion that he is having a better pre-emptory right vis-a-vis the present plaintiff, therefore, he shall be added as a plaintiff in the event of acceptance of his application.

Consequent thereto he would be bringing additional facts on record which are not otherwise part of the plaint.

It shall be an abuse of the process, if he be permitted to do so after loosing his right to file a suit.

Learned trial court while arriving at the conclusion that no limitation is prescribed for filing an application under Order 1 Rule 10 Code of -9- Civil Procedure, failed to appreciate that in the instant matter the application preferred is having a nature of filing a suit for pre-emption.

The application as such is not an application simplicitor to join as a party to the proceedings, but to have a decree of possession that could have been availed by way of filing a suit for possession by claiming pre-emption.

Such a suit admittedly would have been barred by limitation, if would have been filed on the day the application under Order 1 Rule 10 Code of Civil Procedure was filed.

The court on that day had no jurisdiction to entertain the suit being barred by limitation.

The trial court, on acceptance of the application, has assumed the jurisdiction that it lost earlier.

The jurisdictional error, thus, is apparent.

The appeal, hence, is allowed.

The judgment dated 1.4.2013 passed by learned Single Judge and also the order dated 7.7.2010 passed by the court of learned Additional District Judge (Fast Track) No.3, Jodhpur are set aside.

The application preferred under Order 1 Rule 10 Code of Civil Procedure by respondent Ajay Singh is dismissed.

No order to costs.

(ATUL KUMAR JAIN),J.

(GOVIND MATHUR),J.

MathuriaKK/ps