Code of Civil Procedure, 1908 – Ord. 1 r.10, Ord. XXII Rule 4 – Suit for specific performance – Impleadment as a legal heir – Deletion of name from array of parties – Respondent filed suit for specific performance of an agreement for sale and for vacant possession of the suit property against the original defendant, which was decreed in favour of the respondent – On the demise of the original defendant during the pendency of the execution proceedings, appellant, along with other legal heirs of the original defendant came to be impleaded in the execution proceedings before the trial court – Appellant filed an application seeking the deletion of his name from the array of parties on the ground that he was wrongly impleaded as a legal heir, that his deceased father was a tenant in the suit property prior to his demise; and that he is a tenant in the suit property by virtue of having inherited the tenancy from his deceased father – Trial court rejecting the application – High Court affirmed the order passed by the trial court – Correctness: Held: Courts below committed no error in arriving at their respective decisions – Power to strike out or add a party to the proceedings u/Ord. I r.10 can be exercised by the court at any stage of the proceeding – However, the same cannot be construed to mean that when a particular party has been impleaded as a legal heir u/Ord. XXII r.4 after due inquiry by the court and without any objections, the party can approach the court anytime later and seek his deletion from the array of parties by filing an application u/Ord. I r.10 – Trial court, while dismissing the application moved by the appellant u/Ord. I r.10, observed that the appellant had the opportunity of contesting his impleadment as the legal heir of the original defendant and the appellant was not only served with the notice of the impleadment application, but also entered appearance – However, the appellant, for reasons best known to him, chose to remain silent for more than four years and did not raise any objections as regards his status of not being a legal heir of the original defendant and over his objections as regards tenancy – If at all the appellant was aggrieved by his impleadment as a legal heir, the suitable course of action was to first object to his impleadment u/Ord. XXII r.4 – Even then if the trial court would have decided against the appellant, it would have been open to him to approach the High Court by filing a revision application against the order of impleadment – He was also a respondent in the application preferred by some of the legal heirs seeking rescission of the contract before the courts below – However, he chose not to raise any objection in either of these proceedings as well – Timing of the application preferred by the appellant also raises serious doubts as regards his bona fides – Thus, application for deletion from array of parties is merely one more attempt to further thwart and prolong what has already been an unduly protracted litigation for the original plaintiff – High Court rightly held the application of the appellant u/Ord. I r.10 to be barred by res judicata and thus, not maintainable on that ground – Principles of res judicata apply not only to two different proceedings but also to different stages of the same proceeding as well – Neither any objection was raised by the appellant before the trial court nor any revision was preferred subsequently against the said order – Expression “at any stage of the proceedings” used in Ord. I r.10 allows the court to exercise its power at any stage, however the same cannot be construed to mean that the defendant can keep reagitating the same objection at different stages of the same proceeding, when the issue has been determined conclusively at a previous stage – Allowing the same would run contrary to the considerations of fair play and justice and would amount to keeping the parties in a state of limbo as regards the adjudication of the disputes – Appropriate remedy for the appellant lay in raising an objection u/Ord. XXII r4(2) at the time of the impleadment and not under Ord. I r.10 four years after the impleadment came to be allowed – Furthermore, the courts below rightly rejected the appellant’s plea that he is a tenant in the suit property by virtue of having inherited the tenancy from his deceased father, thus, he enjoys the protection of s.11 of the Kerala Buildings (Lease and Rent Control) Act, 1965 which provides that a tenant cannot be evicted, even in execution of a decree, except in accordance with the procedure prescribed under the said Act – Deceased father of the appellant was a tenant in the suit property at the time the same was purchased by the original defendant and that he continued as a tenant till his demise, however the appellant failed to establish his tenancy or possession over the suit property – Documents relied upon by the appellant merely one more weapon to protract the execution proceedings – Also the courts below rightly held that the exclusive possession of the suit property could be said to be with the original defendant when the suit was decreed, the relief of transfer of possession is implicit in the decree for specific performance directing the original defendant to execute a sale deed in the favour of the respondent. [Paras 50-54, 58-68]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Nidhi Jain. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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