Cav Ia Judgment:
1. These applications have been filed by two parties, namely, Koteshwar Mahadev Hindu Sarvajanik Trust (Plaintiff of Special Civil Suit No. 260 of 1994 before the Court of the Learned Civil Judge (SD) Ahmedabad (Rural), which subsequently came to be transferred to the Court of the learned Senior Civil Judge, Gandhinagar and renumbered as Special Civil Suit No. 302 of 1995, hereinafter referred to as plaintiff of Special Civil Suit No. 302 of 1995 / Koteshwar Trust) and Manoramya Resorts And Hotels Pvt Limited (Plaintiff of Special Civil Suit No. 263 of 1994 before the learned Civil Judge (SD), Ahmedabad (Rural), which subsequently came to be transferred to the Court of the learned Senior Civil Judge, Gandhinagar and renumbered as Special Civil Suit No. 303 of 1995, hereinafter referred to as the "plaintiff of Special Civil Suit No. 303 of 1995 / Manoramya Resorts).
1.1 Since in both the Applications the prayers are identical, the prayer made in Civil Application 1 of 2019 in Special Civil Application No. 3409 of 2007 is quoted and reads as under:
"5. In view of the aforesaid, the Applicant herein humbly prays as under:-
i. This Hon'ble Court may be pleased to allow the present Application;
ii. This Hon'ble Court may be pleased to permit the Applicant to file an appropriate application/pursis before the Learned Trial Court and unconditionally withdraw the said Special Civil Suit No. 303/1995;
iii. For such other and further reliefs as this Hon'ble Court may, n the facts of the present, deem fit."
1.2 Shortly stated, both the Applicants i.e. plaintiffs of Special Civil Suit No. 302 & 303 of 1995 have approached this court for permission to withdraw the said suits pending before the Courts below. The context of facts in which these applications are made and the stiff opposition by the respondents to these applications need a brief mentioning so as to decide the outcome of these applications.
FACTS IN BRIEF:
2. The dispute pertains to lands in question being lands Survey No. 13 Admeasuring 0-13 Acres-gunthas; Survey No.151, ad-measuring 129-38 Acres-Gunthas and Survey No. 152, admeasuring 0-14 acres-gunthas and Unnumbered Land 52-18 Acres-Gunthas at Village Koteshwar; District - Gandhinagar. These lands were subject of an Agreement to Sell dated 20.07.1989 executed by the Koteshwar Trust plaintiff of Special Civil Suit No. 302 of 1995 with Manoramya - plaintiff of Special Civil Suit No. 303 of 1995.
2.1 The Trust, on 3/11/1994 by a Civil Suit renumbered as Special Civil Suit No. 302 of 1995 against Manoramya, Bholabhai Patel and Sanjay Lalbhai sought cancellation of the Agreement to Sell dated 20.07.1989. The prayers in the suit were:
"30. The plaintiffs pray for the following reliefs:
(i) That it be declared that the agreement to sell dated 28.07.1989 has been validily terminated and the amount of Rs.7,50,000 paid by the second defendant to the plaintiffs have been legally forfeited.
(ii) It be declared that the alleged illegal power of attorney dated 29.7.1989 was without consideration and was obtained by the first and the second defendants by mis-representation and that the revocation of the same by the plaintiffs is legal and proper.
2.2 Manoramya, the defendant of Special Civil Suit No. 302 of 1995 instituted a cross suit being Special Civil Suit No. 303 of 1995 on 24.11.1994 against Koteshwar Trust seeking specific performance of the Agreement to Sell dated 20.7.1989. The prayers in the Special Civil Suit No. 303 of 1995 read as under:
"20. The plaintiffs therefore pray that:
A). That the defendants and their successors in office from time to time may be ordered and directed to specifically perform their part of the obligation under the said banakhat dated 20.07.1989 and after clearing the title over the suit property and making the same clear and marketable and free from reasonable doubt, convey the property by a registered sale deed and obtain the balance of consideration from the plaintiff.
IN THE ALTERNATIVE
B). If for any reason the Court is not inclined to grant the above relief, then in that case, plaintiffs may be awarded compensation/damages to the tune of Rs 10,00,00,000/- (Rupees Ten Crores only) together with 10 percent interest.
2.3 As far as the suit lands were concerned, there was permission of the Charity Commissioner dated 20-2-1990 to sell the land. Litigations initiated by the Trust as the land was sought to be vested in the State Government was a subject matter of challenge before the Revenue Tribunal and some petitions were pending in the High Court. According to the plaintiff of Special Civil Suit No. 302 of 1995 a revocable power of attorney was given to the intended purchaser-Manoramya to deal with these litigations and obtain permissions etc, which the purchaser executed as an irrevocable power of attorney keeping the Trust in the dark, hence the second prayer in Special Civil Suit No. 302 of 1995.
2.4 On 29.07.1995, a Memorandum Of Understanding was executed between Manoramya and Bholabhai Patel and Rajendra Patel - intended original purchasers of the suit lands and plaintiffs of Special Civil Suit No. 303 of 1995 and one Ashish Patel. The contents in short were that there was an Agreement to sell lands by Koteshwar to Manoramya. The MOU also mentioned some other parcels of land in addition to the Suit Lands. According to the MOU, the lands of the Trust, which were part of the Agreement to Sell to Manoramya would in turn be sold to Ashish Patel on a consideration of Rs. 5.40 Crores to be paid in installments over a period of March 1995 to December 2000. The MOU further stipulated that if the land was developed by Ashish Patel, he would then on profit pay an additional sum of Rs.2,00,00,000.
2.5 On 1.2.1996, another Memorandum of Understanding was entered into between Manoramya and Ashish Patel in furtherance of the MOU dated 29.7.1995 wherein it was stipulated that as per the said MOU if the payments were not made towards the consideration agreed to be paid to Manoramya within 6 months, the MOU of 1995 would be treated as cancelled and would stand automatically terminated.
2.6 Ashish Patel, in turn, on 5.4.1999 entered into a Memorandum Of Understanding with one Mukesh Manekchand Sheth and Tina Behram Mehta stating that he had entered into an MOU on 29.7.1995, with an intended original purchaser, Manoramya for the suit lands which were part of an agreement to sell by the Koteshwar Trust and such Agreement to Sell land by the Trust to Manoramya was subsisting and by this MOU he agreed to sell a part of such land to the parties of the second part i.e. Mukesh Sheth and Tina Behram Mehta. The MOU stipulated certain conditions viz. Ms. Tina Behram Mehta and Mr. Mukesh Sheth would get the litigation pending between Manoramya and the Trust settled; that they will submit a purshis in the Court on arranging to arrive at a settlement by and between the plaintiffs of Special Civil Suits No. 302 & 303 of 1995. They will get the litigations pending between the Government and Koteshwar Trust remanded and incur legal expenses that may be necessary to get the litigation remanded.
2.7 Based on these two sets of MOUs, one between Manoramya - plaintiffs of Special Civil Suit No. 303 of 1995 and Mr. Ashish Patel and the other by Mr. Ashish Patel with Ms. Tina Behram Mehta dated 5.4.1999, both Mr. Ashish Patel and Ms. Tina Behram Mehta preferred Applications at Exh 57 in Special Civil Suit No. 302 of 1995 filed by the Trust for annulment of agreement to sell lands to Manoramya and in Special Civil Suit No. 303 of 1995 filed by Manoramya to be impleaded as defendants.
2.8 As far as the Application Exh.57 in Special Civil Suit No. 303 of 1995 is concerned, the Trial Court by its Order dated 11.05.2006 dismissed the Application holding that in view of the provisions of Sections 5, 6 and 54 of the Transfer Of Property Act, 1882 the applicants could not be said to be necessary parties as real controversy was between the plaintiffs, the Koteshwar Trust and the proposed defendants and their presence was not necessary. Similarly Application Exh.57 for impleadment as parties in Special Civil Suit No. 302 of 1995 was dismissed by the Trial Court by its order dated 15.09.2006.
2.9 Both these orders of dismissing the Applications Exh 57 of Mr. Ashish Patel and Ms. Tina Behram Mehta for being joined as defendants were challenged before this Court by filing Special Civil Applications No. 3409 of 2007 and 3410 of 2007.
2.10 In the meantime, an MOU dated 20.12.2006 was signed between Manoramya Resorts, its Directors and Mr. Ashish Patel inter-alia stating that there was an Agreement to Sell lands by the Trust dated 20.7.1989 and such lands were entered in the name of the Government and such orders are a subject matter of a challenge in the High Court and as Manoramya was in need of funds and Ashish Patel was interested in purchasing the said lands, a loan of Rupees 21,00,000 (Twenty one lakhs) was advanced and as a security and "escrow" the MOU of 29.7.1995 was entered into between them and now as the loan/deposit is fully and finally paid the MOU of 1995 has not come into force and the same has become null and void.
2.11 For the present it may be stated that the subsequent MOUs i.e. dated 1.2.1996 and 20.12.2006 are a subject matter of a challenge at the hands of Ms. Tina Behram Mehta by way of a separate suit being Special Civil Suit No. 647 of 2007 where she has prayed that the MOUs between Manoramya and Ashish Patel be declared as either forged and fabricated documents purported to have been executed between the Defendant No. 1 Mr. Ashish Patel and Defendants No. 2, 3 and 5.
2.12 The High Court, in Special Civil Applications 3409 of 2007 and 3410 of 2007 granted ad-interim relief in terms of Para 9 (C). Pending the petitions, the respective parties to the litigation filed several interim applications/proceedings either before the Trial Court and/or before the High Court. The gist of these miscellaneous proceedings are as under:
a) On 21.2.2007, the petitioner of Special Civil Application No. 3409 of 2007 filed Application Exh.68 before the Trial Court stating that the proceedings of the Special Civil Suit No. 302 of 1995 be stayed as the High Court has been pleased to stay further proceedings in the Suit.
b) Exh 70 Application filed by the Petitioner once again in Special Civil Suit No. 302 of 1995 informing the Trial Court to stay further proceedings of the Suit as directed by the High Court.
c) Mr. Ashish Patel, one of the proposed defendants to Application Exh.57 and the petitioner filed Civil Application No. 6172 of 2007 seeking to transpose himself as Respondent. The High Court on 25.4.2007 allowed the Application and Petitioner No.2 i.e. Mr. Ashish Patel was arrayed as Respondent in the Special Civil Application.
d) Application Exh.70 was filed by the plaintiff of Special Civil Suit No. 302 of 1995 and Application Exh.75 was filed by Plaintiffs of Special Civil Suit No. 303 of 1995 on 12.8.2007 seeking withdrawal of Civil Suits. The Trial Court on 12.08.2007 permitted the plaintiffs to withdraw the Suits.
e) Misc. Civil Applications No. 2666 of 2007 and 2667 of 2007 were filed by sole petitioner Ms. Tina Behram Mehta in the Court against the plaintiffs of both the Special Civil Suits for initiation of contempt proceedings alleging that though the High Court had stayed the Suit proceedings, the Suits were withdrawn which tantamount violation of the Court order.
f) On 11.09.2007, in both the Suits Special Civil Suit No. 302 & 303 of 1995, the Petitioner filed Civil Review Petitions No. 2 of 2007 and 3 of 2007 seeking recall of the Orders dated 12.08.2007 by which the Trial Court had permitted withdrawal of Suits. In Special Civil Suit No. 303 of 1995, the Trial Court on 24.06.2008 granted stay of withdrawal of suits and the order dated 12.08.2007 permitting withdrawal was stayed.
g) Civil Applications No. 4429 of 2007 and 4430 of 2007 were filed by Manoramya in the Petitions praying for Modification/Vacating of Interim Orders dated 6.2.2007 passed by the High Court.
h) Criminal Miscellaneous Application No.10375 of 2007 has been filed by Ms. Tina Behram Mehta, the sole petitioner of Special Civil Application No. 3409 of 2009 and Special Civil Application No. 3410 of 2007 under Section 195 read with Section 340 of the Code of Criminal Procedure, 1973 praying that the records of Special Civil Suit No. 302 & 303 of 1995 be called for as the accused, the parties including Mr. Ashish Patel and the respective plaintiffs have committed offences of filing false affidavits, making false averments on oath. This Application has been placed for hearing with the Special Civil Application Nos. 3409 & 3410 of 2007.
2.13 The High Court heard the petitions and by a judgment and order dated 20/7/2011, the High Court allowed the Petitions and held that Ms. Tina Behram Mehta be joined as party defendant in Special Civil Suits No. 302 of 1995 and 303 of 1995.
2.14 The Order was a subject-matter of challenge by the Trust before the Supreme Court. The Supreme Court by its Order dated 11.1.2018 set aside the impugned order for a de- novo hearing with a request to the Hon'ble the Chief Justice of Gujarat High Court to appropriately nominate a Judge to hear the matter. The Order of the Supreme Court dated 11.1.2018 reads as under:
The appeals are allowed, in terms of the signed order. Pending application(s), if any, stand disposed of."
"1. Leave granted.
2. The appellant has filed civil suit No.303/1995 in which respondent No.1 sought to be impleaded as a party. The endeavour of respondent No.1 was unsuccessful before the trial court in terms of order dated 11.5.2006 against which respondent No.1 preferred an appeal. Same was the position qua a similar endeavour by respondent No.5.
3. There is more than one suit pending in respect of the land in question but it is not necessary to go into the details of the factual controversy. Suffice to say that learned single Judge of the High Court vide the impugned order dated 20.7.2011 came to the conclusion that the request of the applicants to be joined as parties should be allowed. Another aspect dealt with in the impugned order is that the appellant faced contempt proceedings for violating the interim orders staying further proceedings in the civil suits as the appellant sought to withdraw their suits which was found to be an endeavour to over reach the Court for which exemplary costs was imposed on the appellant.
4. In the course of arguments there was serious factual dispute in the submission of the learned counsel for the parties qua the issue as to when the judgment was reserved and pronounced. We were, thus, constrained to call for a report from the Registrar of the Gujarat High Court as to on what date the proceedings were made CAV and the reason for delay in supply of certified copy. The report has since been received and a copy of the same has been made available to learned counsel for the parties to make their submissions.
5. The crux of the report is that the arguments were concluded on 14.7.2010 and the matter was kept CAV. These matters were listed on Board for pronouncement of judgment on 20.7.2011. However, the original judgment along with relevant records was received by the Registry from the Hon'ble Court only on 1.12.2012.
6. In view of the aforesaid given facts & circumstances learned senior counsel for the parties, on instructions, agree that the impugned order may be set aside in toto and be remitted back for re-consideration on merits.
7. We set aside the impugned order for a de novo hearing and request Hon'ble the Chief Justice of the Gujarat High Court to appropriately nominate a Judge to hear the matter.
8. The interim order enuring for the benefit of the parties when the matter was pending before the High Court would continue to enure till the matter is decided afresh.
9. We are also informed that there have been certain developments qua the suits and it will be open for the parties to urge for appropriate relief considering that the impugned order has been set aside in toto.
10. The appeals are allowed in the aforesaid terms leaving the parties to bear their own costs."
2.15 On the matters being remitted to this Court the Plaintiffs of Special Civil Suit No. 302 & 303 of 1995 have filed Civil Applications 1 of 2019 in the respective petitions - Special Civil Application Nos. 3409 of 2007 and 3410 of 2007. The intent of filing these Applications as expressed in these Applications is that the Trust - Plaintiff of Special Civil Suit No. 302 of 1995 as well as Manoramya Resorts - Plaintiff of Special Civil Suit No. 303 of 1995 do not intend to prosecute their respective Suits and therefore the Applications with the Prayer therein.
2.16 The Applications were extensively heard. The sole objector-proposed defendant Applicant of Exh.57 in the respective Special Civil Suits and the Original Petitioner of the Petitions has filed an Affidavit-In Reply opposing the prayer made in the Applications.
3. Mr. Anshin Desai, learned Senior Advocate and Mr. S.N. Soparkar, learned Senior Advocate appeared for the respective plaintiffs and the applicants in these applications and made the following submissions:
(I) That it is evident from the reliefs in Special Civil Suit No. 303 of 1995 that the parties respectively were seeking reliefs in relation to a registered agreement to sell dated 20.07.1989. Koteshwar Trust and Manoramya were the only parties to the said agreement. The suits were by these respective parties as plaintiffs and they being DOMINUS LITUS, they had an absolute right to withdraw the suit. In support of their submission that the plaintiffs have an absolute right to withdraw a suit under Order 23 Rule 1 of the CPC, reliance was placed on the following decisions:
(A) Anil Kumar Singh vs. Vijay Pal Singh [(2018) 12 SCC 584];
(B) Bijayananda Patnaik vs. Satrughna Sahu & Others [AIR 1963 SC 1566] (C) K.S. Bhoopathy & Ors. vs. Kokila & Ors. [(2000) 5 SCC 458;
(D) Patel Dineshbhai Mohanbhai vs. Decd.
Naranbhai Ramdas [2005 (1) GLR 116] (E) Narendrabhai Thakkar vs. Vishalbhai Parmar [2012 (4) GLR 3220] (F) Anil Dinmani Shankar Joshi vs. Chief Officer [2004 106(2) Bom. LR 401]
(II) That there is no privity of contract between the trust and the petitioner Tina Behram Mehta and also there isn't a privity of contract between such petitioner and Manoramya. The only basis of the petitioner is an MOU dated 05.04.1999 entered into between Ashish Patel on the one hand and the petitioner and Mukesh Seth on the other.
That the MOU is a document which cannot be the basis of any litigation because (a) it is an unregistered document without any consideration (b) the subject matter of the document are future eventualities like succeeding in litigations (c) it is a speculative transaction.
That the document is unregistered and without any consideration and therefore is not capable of being enforced even in a suit for specific performance under the Specific Relief Act, 1963. Moreover, Section 17 of the Registration Act, 1908 bars such document from being enforced. That the document is also void in terms of the provisions of Section 25 of the Indian Contract Act.
In support of their submissions, reliance was placed on the decision of the Apex Court in the case of Suraj Lamp and Industries P. Ltd. vs. State of Haryana reported in (2012) 1 SCC 656.
(III) That the original petitioner had clearly admitted in his affidavit-in-reply to the Civil Application that the transaction was a money lending transaction. This was clearly an after-thought. Even assuming that it is a money lending transaction the petitioner has a remedy to recover such money from Mr. Ashish Patel. Such proceedings have not been initiated. Even otherwise, under the Bombay Money Lenders Act, 1946, such transactions are barred. No suit for specific performance is even filed for the MOU to be enforced.
(IV) That the MOU according to the petitioner - objector is an assignment of future right by Mr. Ashish Patel in the favour of Ms. Tina Mehta. Since it is a document of assigning future rights it does not vest any legal right in the petitioner on the basis of which she can be impleaded as a defendant. As a result thereof, she has no absolute right to object to the plaintiffs right to withdraw the suit.
That by an agreement of 01.02.1996, confirmed by agreement dated 20.12.2006, the rights stand extinguished by virtue of this subsequent MOU and therefore the petitioner has no locus to enter into any transaction in relation to the property. She only has a sole right against Ashish Patel. No rights arise whatsoever out of the said MOU in favour of the petitioner.
(V) As far as the applicability of Order 23 Rule 1A of the Code of Civil Procedure, 1908 is concerned, according to the learned Senior Counsels the same is not applicable. The provision only applies to a defendant in a suit and not to a third party. There is no cause of action which the petitioners have against the trust. The suit by the trust is for cancellation of the agreement to sale and that of Manoramya is for specific performance of such agreement. The petitioner cannot pray for being transposed as a plaintiff there being no privity of contract between the petitioner and the trust.
In support of this submission, reliance is placed on the following decisions:
(a) Maooli Land Developers & Ors. vs. Taukir Ahmed Khan reported in 2015 3 Bom CR 466;
(b) Tulebahadur Mahavir Prasad since Decd. Through Heirs v. Dineshbhai Shivlal Patel reported in 2015 (1) GLR 884.
It is submitted that even otherwise, a specific statement has now been made by Mr. Mihir Thakore, learned Senior Advocate conceding to the fact that there is no privity of contract between the trust and the petitioners and therefore they would have no objection to the trust withdrawing the suit.
Even amendment to the suit would lead to a change in the character of the suit which is impermissible. Reliance is placed on the decision of Bharat Karsondas Thakkar v. Kiran Construction Company reported in (2008) 13 SCC 658.
(VI) Mr. Anshin Desai, learned Senior Advocate in support of his submission that a person who is not a party to the contract cannot be impleaded as a party defendant in a suit for specific performance has relied on a decision in the case of Anil Kumar Singh vs. Shivnath Mishra reported in (1995) 3 SCC 147.
Mr. Desai further submitted that a person having direct legal interest in a controversy can only be joined in a suit. A third party or a stranger cannot be added as a party to the suit. Reliance is placed on the decisions of the Apex Court in the case of Kasturi vs. Iyyamperumal & Ors. Reported in (2005) 6 SCC 733 and in the case of Sushil Kumar Agarwal vs. Meenakshi Sadhu & Ors. reported in (2019) 2 SCC 241.
(VII) It is their submission that even otherwise, the applications for impleadment in the suits were rightly rejected by the trial Court as on the basis of the MOU dated 05.04.1999 no suit would have been maintainable for implementation of the MOU after 20 years.
(VIII) The objector has already instituted a separate suit being Special Civil Suit No. 64 of 2007 at Gandhinagar wherein also no relief for specific performance is sought and therefore the petitioner has no right in the land of the trust.
(IX) The properties in question are trust properties and therefore provisions of Section 36, 50 & 51 of the Bombay Public Trust Act are applicable and are required to be followed.
(X) The petitioner has no locus, he can independently litigate and can have no say in the withdrawal of the suits of the applicants.
(XI) Before the Apex Court the orders which were under challenge were only orders in Special Civil Application No. 3409-3410 of 2007 and no orders passed in the MCA (for contempt). This is evident in reading the judgment and order dated 20.07.2011. Reading of the order would indicate as under:
(i) The High Court made rule absolute in relation to the petitions.
(ii) Rule was made absolute to a limited extent in the MCA in view of the consent given by the plaintiffs and the suits were ordered to be restored.
(iii) Separate Civil Applications 4430 of 2010, 6172 of 2007, 1497 of 2007, 4429 of 2010, 6173 of 2007 and 14949 of 2007 came to be disposed of accordingly.
The only order that was under challenge before the Apex Court was the order allowing impleadment passed in Special Civil Application No. 3409-3410 of 2007. The trust and Manoramya had agreed to restoration of the suits in the contempt. Therefore there was obviously no challenge to the contempt proceedings. That the challenge was limited only to the order of impleadment is evident from the memo of the SLP. The trust in Manoramya could not have challenged an order of restoration of suits which was by consent. Therefore, the argument of Mr. Thakore that the order was set aside in toto would amount to setting aside that order which was never a subject matter of challenge. The suit as on date stands restored and the interim relief in the main petitions stand revived and hence the need to file the present applications for permission. The review applications no. 2 & 3 of 2007 before the trial Court have become infructuous.
(XII) It is also submitted that assuming without admitting that the order passed in MCA is also set aside and the suits are not restored, Special Civil Applications of the petitioners would be rendered infructuous and the only surviving proceedings would be MCAs.
4. Mr. Mihir Thakore, learned Senior Counsel appearing with Mr. Anuj Trivedi, learned advocate for the respondent made the following submissions:
(a) The applications are not maintainable. Entertaining of these applications would amount to vacating and modifying the interim relief granted by the Apex Court in the SLPs. Mr. Thakore, learned Senior Counsel invited my attention to the order passed by the Apex Court dated 01.02.2013 while issuing notice whereby the Apex Court until further orders observed that no proceedings shall take place in Civil Suit No. 302 & 303 of 1995.
He would further submit that on 06.02.2007 when the petitions were admitted before this Court, interim relief in terms of paragraph no. 9(C) was granted and even the Apex Court while disposing of the SLPs has in paragraph no. 8 of the order observed that the interim order enuring for the benefit of the parties when the matter was pending before the Apex Court would continue to enure till the matter is decided afresh. Entertaining of the present applications on behalf of the original plaintiffs and granting such applications would amount to vacating of the order of the Apex Court.
Orders on such applications would amount to rendering the main petitions infructuous. Any orders entertaining such applications would amount to modifying the orders of the Apex Court as well as the High Court.
(b) Both the plaintiffs have violated the order of the High Court dated 06.02.2007. The Court found them guilty as they had withdrawn the suits pending the stay. Applications for vacating stay were preferred which were not granted and the main petitions were heard. The applications of the plaintiffs therefore need not be heard as they were made with a malafide motive to defeat the hearing of the main petitions.
(c) Civil Applications No. 4544 & 4545 of 2007, 1876 & 2104 of 2009 and 4429 & 4430 of 2010 were preferred for vacating stay which the Court disposed of on the ground that main petitions will be heard. Misc. Civil Applications No. 2666 and 2667 of 2007 for contempt were filed and were admitted. These contempt applications have to be heard first. The order of restoring the suits have also gone in view of the fact that in the SLP several questions were raised in the memo of the appeal. Mr. Thakore extensively relied on the averments made in the SLP to contend that even the orders under contempt were challenged before the Apex Court and not only the orders passed in the main petitions.
Relying on para 7 of the Apex Court dated 11.01.2018, Mr. Thakore would contend that the order of the High Court was set aside in toto and the High Court was directed to conduct a de novo hearing. The main matters therefore need to be heard. Order restoring the suits has been set aside and as on date there is no suit pending which can be withdrawn by the plaintiffs. Assuming that the suits are restored, it is the main matters that need to be heard as directed by the Apex Court.
(d) That the right of withdrawal will be before the Civil Court once the application Ex. 57 has been granted by the Court. That issue is at large before this Court in the main petitions and till such time that the petitions were decided, the suit proceedings have to be continued by virtue of the Apex court's order. Relying on the provisions of Order 23 Rule 1A, Mr. Thakore would contend that the objector Tina has a right to be transposed as a plaintiff. He has relied on the decision of the Apex Court in the case of R. Dhanasundari alias R. Rajeswari vs. A.N. Umakanth and Others [2019 SCC OnLine SC 331].
(e) That registration is not a pre-requisite for performance of the MOU. He has relied on the proviso to Section 49 of the Registration Act and the decision of this Court in the case of Kaushik Rajendra Thakore vs. Allied Land Corpn. And Others reported in 1987(1) GLH (U.J.) 22.
(f) To the submission of the applicants that MOU dated 01.02.1996 and MOU dated 20.12.2006 reflects that MOU between Manoramya and Ashish is automatically cancelled, Mr. Thakore submitted that both the MOUs are fabricated and backdated. By MOU dated 01.02.1996 Manoramya Resorts and Mr. Ashish Patel fixed time limit of 6 months to pay consideration for the land, failing which the MOU dated 29.07.1995 would stand cancelled. This MOU is clearly fabricated as it is in contradiction to the MOU dated 29.07.1995, which at page 52, states that consideration of Rs.1 crore is to be paid between March-August, 1995 (which was already paid) and no consideration is to be paid from September 1995 to January 1997. It is the submission of Mr. Thakore that MOU dated 20.12.2006 states that the loan of Rs.21,00,000/- was repaid by Mr. Ashish Patel and hence the prior MOU dated 29.07.1995 is cancelled. This MOU is clearly fabricated. There is no reference of the prior fabricated MOU dated 01.02.1996. Both these MOUs were placed on record for the very first time on 09.03.2007. Prior thereto, the said two MOUs were not existing.
(g) To the submission of the learned Senior Counsel appearing for the original plaintiffs that MOU between Mr. Ashish Patel and Ms. Tina Mehta is not an agreement for sale, no consideration is involved and Ms. Tina Mehta has purchased litigation, making it a contingent contract and that as Mr. Ashish Patel has walked out, Ms. Tina Mehta cannot claim any right anymore and no consideration is given to Mr. Ashish Patel, Mr. Thakore submitted that Ms. Tina Mehta has given a sum of Rs.55 lakhs by cheque to Mr. Ashish Patel for which a receipt has also been issued, which was on record before the Hon'ble Supreme Court and that Ms. Tina Mehta is entitled by law to claim her rights through Manoramya and Mr. Ashish Patel and disinterest of Mr. Ashish Patel in the suit property will not come in her way by asserting her rights in the court of law. It is his submission that MOU between Mr. Ashish Patel and Ms. Tina Mehta is not only an agreement for sale but also assignment of his rights under the agreement dated 29.07.1995 qua the said suit properties/lands of Koteshwar Trust, wherein consideration of Rs.4.50 crores is to be paid.
5. Considering the submissions of the respective counsels on the aspect of the Civil applications filed for permission to file pursis for withdrawal of suits it would be necessary to undertake a review of facts regarding the main issue or controversy between the parties.
6. Essentially, the Koteshwar Trust and Manoramya Resorts, respective applicants of these Civil Applications are plaintiffs of Special Civil Suits No. 302 and 303 of 1995. Lands owned by the Trust i.e. the plaintiffs of Special Civil Suit No. 302 of 1995 were agreed to be sold to Manoramya Resorts. An agreement to sell dated 20.07.1989 was entered into between Koteshwar Trust and Manoramya Resorts. Therefore, a contract of agreement to sell land by the Trust was entered into or executed by the Trust in favour of Manoramya Resorts. For certain instances or actions, the Trust wanted cancellation of the agreement to sale. To do so, Special Civil Suit No. 302 of 1995 was filed arraigning the Resort, Bholabhai Patel and Sanjay Lalbhai as defendants.
The prayer in such suit would indicate that the Trust had sought a declaration that it be declared that the agreement to sale dated 20.07.1989 has been validly terminated. The suit was filed on 03.11.1994.
6.1 Manoramya Resorts, in turn by a separate suit filed on 24.11.1994 sought specific performance of the agreement to sell. Both these suits are pending before the civil Court. Manoramya and its Directors, Bholabhai and one another entered into a Memorandum of Understanding with one Ashish Patel on 29.07.1995. According to the MOU, lands which Koteshwar had agreed to sell, which in turn Manoramya had agreed to purchase were in principle agreed to be sold to Ashish Patel. The MOU referred to the two pending suits. As per the MOU, considerations for such lands were to be paid spread over 5 years. On 01.02.1996, another MOU was executed by Manoramya with Ashish Patel stating and referring to the MOU of 29.07.1995 and stating that if consideration is not paid in six months by Ashish Patel, the MOU of 29.07.1995 shall be treated as cancelled.
6.2 Mr. Ashish Patel thereafter entered into an MOU with Tina Behram Mehta, petitioner of Special Civil Application No. 3409 and 3410 of 2007. Reading of this MOU indicates that pursuant to the agreement to sell between Koteshwar and Manoramya, the party of the first part of the MOU, Manoramya would be the purchaser of the lands. The intended purchaser Manoramya has entered into an MOU with the party of the first part Mr. Ashish Patel to sell such land and which MOU subsists. Mr. Ashish Patel therefore agrees to sell these lands to Ms. Tina Behram Mehta and one Mukesh Sheth. Amongst other conditions of the agreement, one such clause is that in the event of a settlement by Mr. Ashish Patel with Koteshwar, the second party to this Memorandum, Ms. Tina Behram Mehta shall pay a stipulated amount to the Trust. Litigations between the Trust and the Government would need to be settled by Ms. Tina Mehta including getting them remanded.
6.3 Ultimately, therefore Ms. Tina Mehta is supposed to be the beneficiary of the lands which Koteshwar Trust had agreed to sell to Manoramya Resorts and which Koteshwar no longer wanted to. Manoramya Resorts on the other hand wanted enforcement of the agreement to sell. Lands which were agreed to be sold to Manoramya Resorts were by virtue of an MOU agreed to be sold to Mr. Ashish Patel and Mr. Ashish Patel in turn agreed to sell to Ms. Tina Mehta. Based on the MOUs dated 05.04.1999 and 29.07.1995, both Mr. Ashish Patel and Ms. Tina Mehta filed applications to be joined as defendants in the suit. Essentially between Koteshwar Trust - plaintiff of Special Civil Suit No. 302 of 1995 and Manoramya Resorts - plaintiff of Special Civil Suit No. 303 of 1995, the question was of cancellation and/or enforcement of an agreement to sell.
7. Let us at the first place peruse Section 54 of the Transfer of Property Act, 1882. The same reads as under:
"54. "Sale" defined.--''Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made.--Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale.--A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.
7.1 Thus, an agreement to sell does not in itself create any interest in or charge on the property concerned. Till a registered sale deed is executed in favour of a transferee, the transferor remains a full owner of the property. In absence of a sale deed no right, title or interest in any immovable property can be transferred. Therefore, between the two plaintiffs there is no conveyance of property and therefore the property which is of the Trust does not create any interest or charge in favour of Manoramya Resorts.
8. It is the submission of Mr. Thakore that Registration is not a pre-requisite for performance of the MOU and that the proviso to Section 49 of the Registration Act make it clear that the suit would not fail or performance cannot be avoided on the ground of registration. In this regard, Mr. Thakore has placed reliance on a decision of this Court in the case of Kaushik Rajendra Thakore vs. Allied Land Corpn. And Others reported in 1987(1) GLH (U.J.) 22 wherein it is held that the suit of the plaintiff would not fail on the ground of compulsory registration introduced by amendment to Section 17 by Gujarat Act 7 of 1982, in view of proviso to Section 49 of the Registration Act, 1908. The said view can be distinguished in view of the decision later in point of time of the Apex Court in the case of Suraj Lamp and Industries P. Ltd. (supra) wherein it has been held that in absence of a deed of conveyance being duly stamped no right or title to the immovable property can be transferred.
9. Albeit, there are cross suits, one for cancellation of agreement to sale and the other for enforcement. Such agreement has not transferred any right, title or interest in the immovable property. If that be so, Mr. Ashish Patel cannot claim a right to such property by virtue of an MOU between Manoramya Resorts and himself and in turn Ms. Tina Mehta, the second in turn, who is claiming her right on the basis of an MOU with Mr. Ashish Patel. What property Manoramya Resorts cannot convey to Mr. Ashish Patel, cannot be conveyed to Ms. Tina Mehta on the basis of the MOU dated 05.04.1999. If the MOU between Manoramya Resorts and Mr. Ashish Patel dated 29.07.1995 and 01.02.1996 do not confer any right on Mr. Ashish Patel, no further right can be created in favour of Ms. Tina Mehta by virtue of an MOU dated 05.04.1999 between Mr. Ashish Patel and Ms. Tina Mehta. In accordance with provisions of Section 54 of the Transfer of Property Act, 1882 , if the agreement to sale dated 20.07.1989 does not vest any right in Manoramya Resorts that it will vest any right to a beneficiary of an MOU, third in line is far fetched. Ms. Tina Mehta cannot have any lis vis-a-vis the agreement to sale between Koteshwar Trust and Manoramya Resorts. There is therefore no privity of contract between Koteshwar Trust and Ms. Tina Mehta on the one hand and Manoramya Resorts and Ms. Tina Mehta on the other. The issue of whether she was a necessary and proper party and whether she could be joined as a defendant may be an issue which had to be decided whilst considering the issue on merits in the Special Civil Applications, however, even for the limited purpose of deciding these applications, considerations of such a nature need to be briefly gone into.
10. The crux of the law laid down by the Apex Court by way of decision in the case of Kasturi (supra) is that in a suit for specific performance of a contract for sale the lis between the appellant - purchaser and the respondent - vendor shall only be gone into and it is also not open to the Court to decide whether the third party have acquired any title and possession of the contracted property as that would not be germane for decision in the suit for specific performance of the contract for sale. Two tests by which a person who is seeking addition in a pending suit for specific performance of the contract for sale must be satisfied which are (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings (2) no effective decree can be passed in the absence of such party. Applying the said two tests in the present case the third party or strangers to contract are not necessary parties as effective decree could be passed in their absence as they had not purchased the contracted property from the vendor after the contract was entered into. They were also not necessary parties as they would not be affected by the contract entered into between the appellant - purchaser and the respondent - vendor. Therefore, order of courts below allowing the application for addition of parties in the pending suit for specific performance of contract for sale filed at the instance of third party to contract would be illegal and liable to be set aside.
10.1 Thus, as held in the case of Kasturi (supra), in order to be a necessary party, there must be a right to relief against such a party in respect of the controversies involved in the proceedings. In the case on hand, no interest can be said to have been acquired either by Mr. Ashish Patel by virtue of an MOU with Manoramya Resorts and Ms. Tina Mehta by virtue of an MOU with Mr. Ashish Patel, when the proposed purchaser Manoramya Resorts had no better interest. Even otherwise as a result of a subsequent MOU dated 20.12.2006, by which Mr. Ashish Patel extinguished his rights, the sole objector, the petitioner cannot claim better title. The MOU of 20.12.2006 will be considered in the later part of this judgement. It is also held further therein that a third party or a stranger claiming independent title and possession over the contracted property and is neither necessary nor proper party and therefore not entitled to join as party defendant in suit. Moreover, the fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.
10.2 Mr. Thakore has tried to distinguish the above decision in the case of Kasturi (supra) by relying on the decision of the Apex Court in the case of Sumtibai and Others vs. Paras Finance Co. reported in (2007) 10 SCC 82 and submitting that as held in the case of Sumtibai (supra) if a party can show a fair semblance of title or interest he can certainly file an application for impleadment and that it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit.
10.3 True it is that courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed, in the facts of the present case, Ms. Tina Mehta, is claiming her right on the basis of an MOU with Mr. Ashish Patel who was permitted to opt out of the petitions as the petitioner and transposed himself as a respondent. Ms. Tina Behram Mehta's claim was based on the MOU dated 05.04.1999 that Mr. Ashish Patel had entered into with her and when Mr. Ashish Patel himself settled his dues with Manoramya Resorts, Ms. Tina Mehta could not have claimed her rights on the original plaintiffs. At best she can be said to have her rights through Mr. Ashish Patel and not through the original plaintiffs with whom she does not have any privity of contract.
11. Since the learned counsels for the respective parties have read and re-read the MOUs dated 29.07.1995, 01.02.1996 and 20.12.2006, I need to consider such documents in these Civil Applications where the plaintiffs have sought to withdraw their suits. Conscious I am that while doing so, the merits of the core issue is also being referred i.e. the issue of the validity of the orders, a subject matter of the main petition but even in context of the plaintiffs' right to withdraw the suits they will need to be referred to.
12. Going back briefly to the facts, in the suits filed by the plaintiffs of Special Civil Suit No. 302 of 1995 and 303 of 1995, initially both Mr. Ashish Patel and Ms. Tina Mehta had filed applications Ex. 57 for being joined as defendants which were rejected by order dated 17.12.2004. These applications were based on the MOU dated 29.07.1995 between plaintiffs of Special Civil Suit No. 303 of 1995 and Mr. Ashish Patel and an MOU of 05.04.1999 between Mr. Ashish Patel and Ms. Tina Mehta. Both these MOUs have been referred to earlier. It appears that subsequently on 20.12.2006 an MOU was executed between Manoramya Resorts, Bholabhai Patel (Director of Manoramya Resorts) and Mr. Ashish Patel inter alia suggesting that money advanced to Manoramya Resorts by Mr. Ashish Patel had been returned and therefore the MOU dated 29.07.1995 which was a security arrangement that has not come into force and be treated as null and void. In context of this MOU, Mr. Ashish Patel filed a Civil Application seeking himself to opt out of the petitions as the petitioner and transpose himself as a respondent. This application being Civil Application No. 6172 of 2007 was allowed. Therefore, the only objector or proposed defendant wanting to be so arrayed in both the suits was Ms. Tina Behram Mehta. Her claim was based on the MOU dated 05.04.1999 that Mr. Ashish Patel had entered into with her.
12.1 Reading of the MOU dated 05.04.1999 indicates that the document is not only without consideration but is based on future eventualities like succeeding in Court. Mr. Desai and Mr. Soparkar have submitted that such documents are void in terms of Section 25 of the Indian Contract Act, 1872 and being unregistered, cannot be enforced under the Specific Relief Act, 1963 read with Section 17 of the Registration Act. Even as per the respondent in their reply to these Civil Applications it is admitted that the transaction is a money lending transaction. Even if Mr. Thakore's submission that the MOU is an assignment of future rights by Mr. Ashish Patel in favour of the petitioner is considered, on the date when Mr. Ashish Patel entered into this MOU, he had no right or locus to enter into a transaction of the property which belonged to the Trust. Such rights stood extinguished by Mr. Ashish Patel in the year 1996. If that be so, once Mr. Ashish Patel, as a link between plaintiffs of the said transaction and Ms. Tina Mehta snaps, Ms. Tina Mehta becomes a rank outsider and remote to have any locus to object these applications. Moreover, by a separate civil suit being Civil Suit No. 64 of 2007, she has challenged the MOUs dated 01.02.1996 and 20.12.2006. Even as per Section 6(e) of the Transfer of Property Act, 1882 if the MOU dated 05.04.1999 is seen what it essentially does is delegates authority to Mr. Ashish Patel who in turn does it to Ms. Tina Mehta to settle the suits. This assignment of right to sue as per the provisions of the Transfer of Property Act, 1882 cannot be transferred.
13. Before dealing with the legal submissions of whether under the provisions of the Code of Civil Procedure, 1906 especially under Order 23 Rule 1, a plaintiff has an absolute right to withdraw the suit, the events pending the petitions before this Court, the subsequent final order in such petitions and the order of the Apex Court and the spirit thereof need to be discussed. This is so because according to the plaintiffs, but for the Apex Court order, they would not need to file such applications seeking permission to withdraw the suits and according to the respondents of these applications, these applications cannot be entertained as, as per the order of the Apex Court the main petitions have to be heard on merits.
13.1 In the Special Civil Suits filed by Koteshwar Trust and Manoramya Resorts respectively, Mr. Ashish Patel and Ms. Tina Mehta filed applications Ex. 57 on 17.12.2004 for impleadment as defendants in the suit. By orders in the respective suits, dated 11.05.2006 and 15.09.2006 respectively, the applications were dismissed. Both these orders in the two suits were challenged by filing two separate petitions by the applicants of Ex. 57 applications. The petitions were filed on 05.02.2007. The High Court on 06.02.2007 granted them interim relief in terms of paragraph no. 9(C). Lot of arguments were made by the counsels on the issue of correctness and subsequent amendment to paragraph no. 9(C) of the petition. At this stage, it may not be necessary to go into that issue. As per the relief, further proceedings in the suit were stayed. Civil Applications for vacating stay were filed which were disposed of so that main petitions could be heard. The plaintiffs of the respective suits on 12.08.2007 filed applications Ex. 72 & Ex. 75 seeking to withdraw the suits. By an order of 12.08.2007 suits were permitted to be withdrawn. Petitioners filed Misc. Civil Applications No. 2666 & 2667 of 2007 alleging that the Trust and Manoramya Resorts had committed contempt in view of the fact that the suits were sought to be withdrawn despite the order of stay of the High Court dated 06.02.2007. The Misc. Civil Applications were filed on 08.09.2007. On 11.09.2007 Civil Review Petitions were filed namely Civil Review Petitions No. 2 & 3 of 2007 seeking recall of the order of withdrawal of suit passed by the trial Court on 12.08.2007. On 24.06.2008 in the review applications, the trial Court stayed the order of withdrawal of suits. On 13.07.2010, in the contempt proceedings, an affidavit-in-reply was filed by the plaintiffs agreeing for restoration of the civil suits. Arguments were concluded and the judgement was kept reserved. During the hearing it was recorded that the plaintiffs had filed affidavits on 14.07.2010 in contempt proceedings agreeing to the restoration of the suits. The petitions were allowed on 20.07.2011 and in the body of the judgement, fact of recording of restoration of suits finds place.
13.2 Order of the Apex Court in context of its earlier order while issuing notice are read extensively by the respective counsels in context of their submissions. The case of the present applicants seeking permission to withdraw suits is that they have an absolute right to withdraw suits as plaintiffs, however, since earlier such withdrawals were perceived as contemptuous action and the interim relief has been continuing, these applications seeking permission to withdraw suits.
13.3 According to learned Senior Counsels Mr. Desai and Mr. Soparkar, the judgement under challenge was that in Special Civil Application No. 3409 of 2007 and Special Civil Application No. 3410 of 2007 and not the one imposing costs and holding the applicants guilty of contempt and ordering payment of costs. Suits were and are restored and the original position prevailing at the time of passing interim order is restored. The Civil Applications were disposed of accordingly. The order was set aside in toto with consent for de novo consideration. Paragraph no. 9 of the Apex Court's order is relied upon by the applicants' counsel that the Apex Court intended parties could seek appropriate relief as there have been subsequent developments in the suits. The counsels for the applicants would therefore submit that now that they wish to withdraw the suits, permission is sought to do so because of the continuing interim relief.
13.4 Mr. Mihir Thakore, learned Senior Advocate would submit that the applications are not maintainable. The Apex Court's order is that the interim relief is to enure for the benefit of parties and continue till the matter is decided afresh. Unless the main petitions are decided first, these applications cannot be entertained. Entertaining of such applications would amount to vacating and/or modifying stay of the order of the Apex Court. Suits were restored pursuant to an affidavit in the pending Special Civil Application. Both orders, in contempt as well as in the Special Civil Application were subject matters of challenge before the Apex Court. The Apex Court has set aside the order in toto therefore even orders restoring the suits have gone. There is no suit pending. Extensive reliance is placed on the memo of the SLP, the grounds therein to submit that not only was the Special Civil Application a subject matter of the challenge but the Misc. Civil Applications too. It is his submission that once the Apex Court has set aside the order for a de novo hearing, as on date no suit is pending and hence present applications are not maintainable. It is his submission that the petitioners' review applications are pending before the trial Court and unless the applicants appear before the trial Court in reviews and consent to they being allowed and restoration of suits, no application in this Court can be entertained.
13.5 What is evident from reading of the CAV judgement of this Court dated 20.07.2011 is that during the hearing of the petition with consent of the parties, the order below applications dated 12.08.2007 by which permission to withdraw suits were granted are quashed and set aside. Special Civil Suit No. 302 of 1995 and Special Civil Suit No. 303 of 1995 were ordered to be restored. Paragraph no. 9.3 of the judgement of the Apex Court in Special Civil Applications No. 3409 & 3410 of 2007 makes that abundantly clear. Even in paragraph no. 9.4 of the order, the Court has observed that the suits are now restored. In the synopsis and the grounds of challenge to the order in Special Civil Application No. 3409 of 2007 as mentioned in the cause title merely because contentions are raised of Misc. Civil Application's order does not make them so as to suggest that even the order in contempt was under challenge. In fact the prayer in the SLP is restricted to the order passed in Special Civil Application No. 3409-3410 of 2007 only. I am not in a position to accept the submission of Mr. Thakore that the suits are not restored. Once with consent of the parties, the order dated 12.08.2007 of the trial Court, permitting the withdrawal of the suits was quashed, that could not have been and was not a subject matter of challenge before the Apex Court. Merely because the Apex Court has set aside the order in toto does not mean that the part which ordered restoration of suits has also gone. That is not so. If Mr. Thakore's submission that today since there are no suits, there can be no withdrawal is merely to be accepted, the same would fly in the face of his other submission that the Court should hear the Special Civil Applications/Misc. Civil Applications first. If there are no suits pending, then there are no proceedings which could be said in such suits to be pending and then Special Civil Applications have to be disposed of as having become infructuous. Therefore, the submissions are contradictory. Suits are restored as per order of High Court and therefore only because of this the Apex Court observed that the petitions need to be heard on merits. The order that the interim relief to enure till such matters are decided afresh has to be read in such context. The Civil Applications therefore filed for permission to withdraw the suits are held to be maintainable as the Special Civil Suits No. 302 & 303 of 1995 are treated to be restored as a result of a consensus arrived at between both the parties and the concession of such restoration before the High Court. Therefore, today the suits are pending and it is apparent when reading the order in that context particularly para 9 thereof. Reading of the whole order of the Apex Court only suggests that the order/CAV judgment of the High Court is set aside and the proceedings are remanded for the Court to decide the matter on merits de novo. When the petitions are sent back since the position does prevail as on 06.02.2007 and therefore these applications are moved for permission to apply to the trial Court for withdrawal of the suits. At the cost of repetition, paragraph no. 9 of the order of the Apex Court dated 11.01.2018 in the SLP is reproduced hereinbelow:
"9. We are also informed that there have been certain developments qua the suits and it will be open for the parties to urge for appropriate relief considering that the impugned order has been set aside in toto."
13.6 The question therefore that now needs to be considered is whether the applicants who are the original plaintiffs have a right to withdraw their suits which are pending before the trial Court. Learned counsels Mr. Desai and Mr. Soparkar have referred to the provisions of Order 23 Rule 1 of the Code of Civil Procedure, 1908 (for short 'CPC') in support of their submission that the plaintiff in DOMINUS LITUS and has an absolute right to withdraw his suit unconditionally. The provisions of Order 23 Rules 1, 2 & 3 read as under:
"Rule 1 Order XXIII of Code of Civil Procedure 1908 "Withdrawal of suit or abandonment of part of claim"
(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim : Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other. person.
(3) Where the Court is satisfied,-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
13.7 Reading of Order 23 Rule 1 of the CPC makes it clear that such a provision gives absolute power to the plaintiffs to withdraw their suits or abandon their claim. On an application made under Order 23 Rule (1) the Court unlike the one under sub-rule (2) that permission of the Court is necessary, no such permission is necessary under Order 23 Rule 1. These applications however seeking such permission have been made in the facts of the case particularly when there is a stay operating which stands revived on the matters being remitted to the High Court.
14. In the case of Patel Dineshbhai Mohanbhai (supra) where there were similar facts where the original plaintiffs had challenged the orders by which third parties were joined as co-plaintiffs in an application under Order 1 Rule 10 of CPC, the application under Order 1 Rule 10 of the intended co-plaintifs were granted and the applications of plaintiffs to withdraw the suits were dismissed on the ground that the plaintiffs and defendants had colluded to deprive the intended co-plaintiffs of their rights. The Court after considering the respective submissions of the parties to the suit, in paragraphs no. 52 to 57 of the judgement held as under:
"52. I have considered the argument of both the sides. The issue involved in this matter is very simple, whether the plaintiff has absolute right to withdraw the suit unconditionally and under what circumstances the Court can refuse such withdrawal. In my view, the trial Court has committed error of jurisdiction by not permitting the original plaintiffs to withdraw their suit unconditionally. It is required to be noted that it cannot be said that there is common cause of action so far as rights of original plaintiffs and third party are concerned. It cannot be said that there is common interest of the plaintiffs and the defendants, like common interest of parties in a partition suit. In my view, simply because the plaintiffs have made certain admission in the suit, that itself, cannot be made the basis for refusing the withdrawal of the suit, if the plaintiffs wanted to withdraw the suit unconditionally. The applicant- third party can rely upon such admissions as per the provisions of the Indian Evidence Act, in the suits filed by them, which are still pending.
53. It is also required to be noted that the third party- applicants are not even defendants in the present suit and for the first time, they gave an application Exh.57, requesting the Court to permit them to be joined as co-plaintiffs in the suit. If the respondents No.2 to 5 have any independent right, naturally they can pursue the same in the suits, which they have already filed.
54. So far as argument of Mr.A.J.Patel regarding Section 15 (b) of the Specific Relief Act is concerned, which provides that the specific performance of the contract should be obtained by the representative in interest of the principal of any party thereto, the said aspect can be highlighted by the applicants in the suits, which they have already filed and which are pending. The question whether there is any assignment in favour of the applicants, is a question which is required to be decided in the suits filed by them and withdrawal of the present would not in any way prejudice the rights of third party-applicants and the suits filed by the third party-applicants are required to be decided on their own merits and the applicants can raise all the points available to them in those suits.
55. It is difficult to appreciate the reasoning given by the trial Court wherein the trial Court has stated that by giving said pursis, the plaintiffs have committed fraud with the Court. It is also required to be noted that if the plaintiffs have settled their dispute with the original defendants and if the plaintiffs wants to withdraw the suit unconditionally, the Court has no jurisdiction to refuse such unconditional withdrawal, unless there is any counter claim or set-off claimed by the defendant in the said suit. It is required to be noted that a suit for partition stands on different footing. In such partition suits, the cause of action of the plaintiff and some of the defendants may be common against some of the defendants, naturally, in such a case, Court can permit such defendants to be transposed as plaintiffs but that is not the situation in the present case. In my view, therefore, the trial Court has committed error of jurisdiction by refusing such unconditional withdrawal of the suit. When the plaintiff wants to withdraw the suit, the conduct of the plaintiff is not relevant for permitting him to withdraw the suit if he wanted to withdraw the suit unconditionally. It is required to be noted that the question regarding whether the applicants are required to be joined as party to the suit under Order 1 Rule 10 of C.P.C., arises subsequently for determination and the first question, which requires consideration is whether the plaintiff can be permitted to withdraw the suit unconditionally and if it is held that the plaintiff is entitled to withdraw the suit, naturally, there is no question of permitting so called third party to be impleaded in the suit.
56. Even otherwise, it cannot be said that there is common cause of action so far as plaintiffs and third party applicants are concerned. Even if the third party is permitted to be joined in the suit, question of limitation is also required to be considered from the date on which the third party applicants are permitted to be joined as co- plaintiffs. It is required to be noted that even the nature of evidence in both proceedings will be different. It is also required to be noted that original owner of the property I.e., respondent No.1 herein is not even party to the agreement executed by the plaintiffs in favour of the respondents No.2 to 5 herein.
57. It is not in dispute that even after permitting respondents No.2 to 5 to be joined as co-plaintiffs in the present suit, substantial amendment is required to be made in the present suit. It is, therefore, clear that this is not a case in which simply by permitting respondents No.2 to 5 to be joined in the present suit as co-plaintiffs, suit can be proceeded in the same manner in which it is proceeded by the original plaintiffs. Considering the facts and circumstances of the case, even reference to provisions of Order 1 Rule 10 will have no application to the facts of the present case, as the original plaintiffs wants to withdraw the suit unconditionally and in that place, third party wants to be joined as co-plaintiffs in the pending suit after a period of about more than ten years. The effect of the impugned order of the trial Court is that the third party is permitted to be substituted in place of the original plaintiffs of the suit, which, in my view, is not permissible. Even otherwise, as stated above, if the third party is permitted to be joined in the suit, cause of action will be totally changed and, therefore, the third party cannot continue the said suit on same cause of action and substantial amendment is required to be made in the plaint. So far as this aspect is concerned, the same is not denied even by Mr.A.J.Patel, learned advocate appearing for the third party-applicants."
The ratio laid down is squarely applicable in the present set of facts.
14.1 In the case of Anil Dinmani (supra), the Bombay High Court while considering Order 23 Rule 1 CPC opined that as soon as an application is filed, the withdrawal of the suit is complete. Such withdrawal is not dependent on the court's order. Paragraph no. 3 of the order of the Bombay High Court reads as under:
"3. Order XXIII. r. 1 of the Code of Civil Procedure permits the plaintiff at any time after the institution of the suit to abandon the suit or abandon a part of the claim in the suit against all or any of the defendants. No permission of the Court is necessary for the plaintiff to unconditionally abandon his claim or any part of his claim against all or one or more of the defendants. Abandonment is complete as soon as the plaintiff informs the Court. No order of the Court is necessary though the Court often passes formal order recording the abandonment. In this connection reference may be made to the decision of the Apex Court in Shiv Prasad v. Durga Prasad wherein the Court observed in paragraph No. 12 of the Judgment as follows:
"Every applicant has a right to unconditionally withdraw his application and his unilateral act in that behalf is sufficient. No order of the Court is necessary permitting him to withdraw the application. The Court may take a formal order disposing of the application as withdrawn but the withdrawal is not dependent on the order of the Court. The act of withdrawal is complete as soon as the applicant intimates the Court that he withdraws the application.""
14.2 This Court considering the aforesaid decision of the Bombay High Court in the case of Narendrabhai Thakersibhai Thakkar (supra) held as under:
"16. In case of Patel Dineshbhai Mohanbhai (Supra) question decided by this Court was whether the plaintiff has absolute right to withdraw the suit unconditionally and it is held herein that he does have such an absolute right. However, as an exception Court can refuse it in case where there is a counterclaim or set-off. By a detailed discussion of various aspects, this issue was examined and the Court held that there was material irregularity committed by the Trial Court in not exercising the jurisdiction of permitting the plaintiff who wanted to withdraw the suit unconditionally. As plaintiff of the original suit cannot be compelled to continue the suit by permitting the third party to be joined as coplaintiff if such withdrawal is unconditionally sought.
17. In case of M/s. Hulas Rai Baij Nath Vs. Firm K.B.Bass and Co. (Supra) the Supreme Court held that the language of Order XXIII Rule 1 Sub Rule (1) gives an unqualified right to the plaintiff to withdraw the suit and if no permission to file a fresh suit is sought under sub-Rule (2) of that Rule, the plaintiff becomes liable for such costs as the Court may award and is precluded from instituting any fresh suit in respect of that very subject matter under sub-Rule(3) of that Rule. And, there is no provision which permits the Court to refuse permission to withdraw the suit and to compel the plaintiff to proceed with the suit. However, only in the event of set-off or counter-claim, different considerations would weigh with the Court.
18. In case of Malaji Bhudhaji Thakore (Supra) this Court also on the similar lines held that in case plaintiff is desiring to withdraw his suit unconditionally, ordinarily nobody can object to such pursis or application nor could the Court decline to grant such prayer and the plaintiff cannot be forced by the Court to continue the suit by substitution of third party.
19. Bombay High Court has gone a step further in its decision rendered in case of Anil Dinmani Shankar Joshi and another Vs. Chief Officer, Panvel Municipal Council,Panvel and another (Supra) and held that the withdrawal is not dependent on the order of Court as unconditional withdrawal would be complete as soon as the plaintiff intimates his intention to withdraw "4.In my opinion , what is said by the Apex Court in respect of an application applied with equal force to the suit. Every plaintiff has an unconditional right to withdraw his suit unconditionally. The withdrawal would be complete as soon as the plaintiff files a purshis of withdrawal. The Court may pass a formal order recording the withdrawal and also make an order regarding costs, but the withdrawal is not dependent on the order of the Court. This could apply also where the plaintiff seeks withdrawal of the suit against one or more of the defendants and the withdrawal would be complete against those defendants as soon as the plaintiff files an application/purshis for withdrawal. The Court may then consider whether the suit survives against the other defendants against whom suit is not withdrawn. If it comes to the conclusion that the defendant or defendants against whom the suit is withdrawn was or were necessary parties , the Court would then be entitled to dismiss the suit against all on the ground of non-joinder of the necessary parties. But the Court cannot refuse to allow the withdrawal on the ground that the person against whom suit is sought to be withdrawan is a necessary party."
14.3 In the present case, the objector is not even a defendant. She has filed an application to be joined as a defendant on the basis of an MOU entered into in her favour by Mr. Ashish Patel. Subsequently since Mr. Ashish Patel entered into an MOU dated 01.02.1996 and 20.12.2006 with the plaintiffs of Special Civil Suit No. 303 of 1995 and the financial arrangements are settled, these MOUs have been substantially challenged by the sole petitioner by way of a separate substantial suit being Special Civil Suit No. 64 of 2007 in the Civil Court, Gandhinagar to declare these MOUs as forged and fabricated. The stand of Ms. Tina Mehta that the MOUs are fabricated and backdated is the subject matter of the proceedings of SCS No. 64 of 2007. No proceedings have been initiated for specific performance of MOU dated 05.04.1999. In these facts, the objector - intended defendant has filed a separate suit which is pending. In the earlier part while considering the privity of contract between the plaintiffs and the objector in such circumstances, she has no locus to object to the suits being withdrawn. In fact Mr. Thakore has during the course of submissions conceded that there is no objection if Koteshwar Trust - plaintiff of Special Civil Suit No. 302 of 1995 is permitted to withdraw the suit, however, the plaintiff of Special Civil Suit No. 303 of 1995 - Manoramya Resorts cannot be permitted to do so. For the reasons, I find that even for Special Civil Suit No. 303 of 1995, the petitioner cannot object to the suit being withdrawn.
15. To counter the submissions of the applicants that the plaintiffs have a right to withdraw, the submission of the original petitioner Ms. Tina Mehta represented by Mr. Thakore is that the plaintiffs have no absolute right to withdraw the suit as applications for impleadment are pending and in the event they are allowed, the petitioner is entitled to seek transposition under Order 23 Rule 1A and seek specific performance of the agreement against Koteshwar Trust. For this reliance is placed by him on the decision of R. Dhanasundari alias R. Rajeswari vs. A.N. Umakanth and Others [2019 SCC OnLine SC 331].
15.1 At this stage, therefore let us consider what Order 23 Rule 1A of CPC lays down. The same reads as under:
Rule 1-A: When transposition of defendants as plaintiff may be permitted.- Where a suit is withdrawn or abandoned by a plaintiff under Rule 1, and a defendant applies to be transposed as a plaintiff under Rule 10 of Order 1, the Court, shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants."
15.2 Under the Rule, a defendant on making such an application shall have to show and it is for the Court to consider whether the applicant has a substantial question to be decided as against any of the other defendants. Transposition is only possible therefore when there is something possible against other defendants. In Dhanasundari (supra), it was the case of the original plaintiffs that the suit property was in the name of a partnership firm of which the plaintiffs and defendant no. 1 was a partner. The partnership was dissolved and therefore the defendant no. 1 had no right to execute a sale deed in favour of Dhanasundari - the defendant no. 2. When, pending the suit the original plaintiff expired, his heirs were impleaded as plaintiffs. The suit was decreed and subsequently restored and the plaintiff no. 5 who held a Power of Attorney sold the land to three individuals. The subsequent purchasers therefore filed applications to prosecute the suit as plaintiffs too. Since it was the case of some of the original heirs - plaintiffs that the plaintiffs could not have sold the land to the three individuals who had arranged themselves as plaintiffs, these original heirs - plaintiffs transposed themselves as defendants no. 3 to 6. The plaintiffs (newly arrayed subsequent purchasers) filed application for withdrawal of suit as it was settled with original defendants no. 1 & 2. The original plaintiffs' heirs who were defendants no. 3 to 6 objected and wanted themselves to be transposed as plaintiffs. This was so because it was their case that once their father had dissolved the partnership the defendant no. 1 had no right to sell the land to defendant no. 2 Dhanasundari. Even if pending the suit, the land was purchased by the newly transposed plaintiffs and they had settled their claim with Dhanasundari - defendant no. 2 and wanted to withdraw the suit, the defendants no. 3 to 6, as heirs still had a right to the la
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nd and therefore were rightly transposed as plaintiffs. It is in these facts that the Apex Court in paragraphs no. 12 & 13 observed as under: "12. The present one is clearly a case answering to all the basics for applicability of Rule 1-A of Order XXIII read with Rule 10 of Order I CPC. As noticed, the principal cause in the suit is challenge to the sale deed executed by defendant No. 1 in favour of defendant No. 2, with the original plaintiff asserting his ownership over the property in question. After the demise of original plaintiff, his sons and daughters came to be joined as plaintiff Nos. 2 to 8 with plaintiff No. 5 being the power of attorney holder of all the plaintiffs. After the suit transferred the property in question to the aforesaid three purchasers, who were joined as plaintiff Nos. 9 to 11 when the ex parte decree was set aside and suit was restored for bi parte hearing. In the given status of parties, even if the plaintiff Nos. 5 and 9 to 11 were later on transposed as defendant Nos. 3 to 6, the suit remained essentially against the defendant Nos. 1 and 2, that is, in challenge to the sale deed dated 23.03.1985, as executed by the defendant No. 1 in favour of defendant No. 2. In regard to this cause, even if plaintiff Nos. 5 and 9 to 11 came to be transposed as defendant Nos. 3 to 6, their claim against defendant Nos. 1 and 2 did not come to an end; rather, the interest of the existing plaintiffs as also the defendant Nos. 3 to 6 had been one and the same as against the defendant Nos. 1 and 2. 13. In the given status of parties and the subject matter of the suit, when the plaintiffs entered into an arrangement with defendant Nos. 1 and 2 and sought permission to withdraw under Order XXIII Rule 1 CPC, the right of defendant Nos. 3 to 6 to continue with the litigation on their claim against defendant Nos. 1 and 2 immediately sprang up and they were, obviously, entitled to seek transposition as plaintiffs under Order XXIII Rule 1-A CPC." 15.3 Such is not the case here. Firstly, the third party objector - original petitioner is not even a defendant in the present suits, namely Special Civil Suit No. 302 of 1995 and Special Civil Suit No. 303 of 1995. The intended defendant cannot be said to have a common interest with either the plaintiff of Special Civil Suit No. 302 of 1995 - Koteshwar Trust or plaintiff of Special Civil Suit No. 303 of 1995 - Manoramya Resorts. Special Civil Suit No. 303 of 1995 was for enforcement and specific performance by Manoramya Resorts against Koteshwar Trust. Ms. Tina Mehta claimed that one Mr. Ashish Patel who had an MOU with an intended purchaser of the lands - Manoramya Resorts had in turn agreed to give part of lands to her. She therefore had no direct interest in the lands. She was claiming through Mr. Ashish Patel with whom Manoramya Resorts had entered into an MOU of 29.07.1995 that in case specific performance is granted of lands which are of Koteshwar Trust, Manoramya Resorts would part with some lands to Mr. Ashish Patel. Mr. Ashish Patel entered into an MOU with Ms. Tina Mehta for lands for which even Manoramya Resorts had no surviving rights. Even otherwise Mr. Ashish Patel had subsequently entered into an MOU of 01.02.1996 and 20.12.2006 extinguishing the MOU of 29.07.1995. Neither of the parties i.e. Mr. Ashish Patel and/or Ms. Tina Mehta's rights to the lands were akin to partition/co-parcenary rights in a partition suit or to property akin to partnership, as is the case of Dhanasundari(supra). Moreover, she had filed a separate suit being Special Civil Suit No. 64 of 2007 challenging MOUs of 01.02.1996 and 20.12.2006 which is pending. The parameters of Order 23 Rule 1A of the CPC are not applicable in such cases. 15.4 Since there is no privity of contract, there is no reason of transposing the petitioner even as plaintiffs in the suit filed by Manoramya Resorts as there is, as stated, no privity of contract between Ms. Tina Mehta and Manoramya Resorts. It will be in the fitness of things to refer to paragraphs no. 9 & 10 of the decision of the Apex Court in the case of Maooli Land Developers (supra). "9. Though Courts lean against multiplicity of suits and, therefore, this provision of transposition is made only to avoid another suit. Courts would not, however, permit such transposition just to give a chance to a litigant to avoid filing a suit or permit him to take advantage of the suit filed by his adversary against him claiming a relief against him by becoming a plaintiff and trying to bring out the averments and reliefs which are contrary to those claimed by the original plaintiff. 10. It is true that the provision of Order 23, Rule 1- A is new, but would that change the character and requirement of transposition? It merely permits that if the plaintiff withdraws the suit, the defendant can request the Court to transpose him as plaintiff if the substantial question has to be decided against the remaining defendant. But that is circumscribed by the position under Order 1, Rule 10 of the Code, meaning thereby, under what circumstances transposition can be permitted. This provision is added, as stated earlier, in order to facilitate a pro forma defendant who has identical interest from being denied his right if he rested on the success of the plaintiff's suit and the plaintiff wanted to withdraw the suit. So, in that case if such a defendant is transposed as plaintiff, he can effectively get adjudication of his right. Courts even without this provision have considered as to what would be the position, when a plaintiff attempts to withdraw the suit on the rights of all other pro forma plaintiffs or pro forma defendants or defendants who have a cause of action identical to that of the plaintiff. In order to make a clear provision, this provision was added, though it was also considered on the same lines earlier irrespective of this provision. So, the normal consideration for transposition, that interest of the person to be transposed as plaintiff must be identical to the interest of the plaintiff who tries to withdraw, would not go away." 15.5 Order 23 Rule 1A of CPC is added in order to facilitate a proforma defendant who has an identical interest. Such is not the case on hand as extensively discussed in the facts hereinabove. Therefore, this Court is of the view that the applications filed by the original plaintiffs for withdrawal of the suits must be granted. 16. Now comes the question therefore if the prayers made in these applications filed by the original plaintiffs deserve to be granted inasmuch as should they approach the trial Court seeking permission to file applications/pursis to withdraw their suits. It is well settled that in appropriate cases the High Court, while exercising supervisory jurisdiction, may not only quash and set aside impugned proceedings but it may also make such orders or directions as the facts and circumstances of the case may warrant, may be by guiding an inferior Court or Tribunal as to the manner in which it should now proceed further or afresh as commanded or guided by the High Court. However, in appropriate cases the High Court in exercise of supervisory jurisdiction may substitute such a decision of its own in place of the impugned decisions. It can be exercised suo motu as well. Therefore, keeping the position of law in mind and with a view to shorten the litigation process, the applications are required to be allowed. 17. Accordingly, the applications are allowed. The applicants' suits being Special Civil Suits No. 302 & 303 of 1995 pending before the trial Court namely learned Senior Civil Judge, Gandhinagar are permitted to be withdrawn. No permission, as such was necessary for the applicants/plaintiffs to seek permission or order of the Court in view of Order 23 Rule 1 of the CPC, however since in facts of these cases, permission is prayed for, the same is granted. Special Civil Suits No. 302 & 303 of 1995 pending before the trial Court at Gandhinagar, in view of the facts are permitted to be withdrawn and are accordingly treated as withdrawn here itself. Rule is made absolute accordingly with no order as to costs. FURTHER ORDER: After pronouncement of the above order, Mr. Thakore, learned Senior Counsel for the respondent Ms. Tina Mehta has requested for stay of the order to which Mr. Soparkar, learned Senior Counsel appearing for one of the applicants - Manoramya Resorts has objected. Request is rejected.