- (1.) REJECTION of an application under Order I Rule 10, Civil Procedure Code (hereafter the Code) filed by the petitioners, seeking their impleadment as additional defendants in T.S. No.94 of 2000, by the learned Civil Judge (Senior Division) 8th Court at Alipore is questioned in this application under Article 227 of the Constitution.
(2.) T.S. No.94 of 2000 is a suit for declaration and injunction instituted by the opposite party no.1 against the opposite parties 2 to 13 in respect of a property situate on 37/1 Diamond Harbour Road, Kolkata " 700027 (hereafter the suit property). The antecedent facts leading to filing of the application under Order I Rule 10 of the Code may be noted. There has been a long standing dispute between the parties to the suit, the origin whereof relates back to the times of their respective predecessor-in-interest during the fifties of the earlier century. It is unnecessary for a decision on this application to trace as to how right, title and interest in respect of the suit property, if at all, devolved on the opposite parties. Suffice it to note that a suit was instituted by the opposite parties 2 to 13 against the opposite party no.1 in respect of the self-same suit property seeking declaration and injunction, being T.S.No.33 of 1999. The suit was dismissed for non-prosecution by an order dated January 17, 2000 and consequently the rights claimed by the opposite parties 2 to 13 against the opposite party no.1 in respect of the suit property were not declared. After such dismissal, the opposite party no.1 instituted T.S.No.94 of 2000. On an application under Order XXXIX Rules 1 and 2 of the Code, an order of status quo was passed by the trial Court in respect of nature, character and possession of/over the suit property. Sometime thereafter, the opposite parties 2 to 13 entered into a development agreement in respect of the suit property with a certain M/s. Chaman Projects Pvt. Ltd. (hereafter Chaman). The terms of the development agreement not having been adhered to by the opposite parties 2 to 13, T.S. No.101 of 2000 was instituted by Chaman against them for specific performance of contract. An order of status quo was passed on an application under Order XXXIX Rules 1 and 2 of the Code filed by Chaman. During pendency of the said suit, Chaman filed an application under Order I Rule 10 of the Code seeking its impleadment as additional defendant in T.S. No.94 of 2000. By order no. 28 dated July 10, 2002, the said application was rejected. While the interim orders of injunction passed in connection with the suits referred to above were subsisting, on September 19, 2005, the opposite parties 2 to 13 entered into an agreement for sale with the petitioners in respect of the suit property. The fact of execution of the agreement for development dated April 5, 2000 in favour of Chaman and that an order of injunction has been passed on February 21, 2002 by the trial Court in T.S. No.101 of 2000 finds place therein. The agreement further proceeds to record that "this Agreement for Sale is strictly subject to the vacating of the status quo order passed by the Learned Court and in case such status quo order is not vacated, the vendor shall not be entitled to transfer or convey the property to the Purchasers herein but in case if the same is vacated, the Vendor shall be entitled to sell and transfer the property at the agreed consideration only to the Purchasers herein and none else and the Purchasers have accepted such contention of the Vendor that the Purchasers would not be bound to purchase the said premises unless and until the Learned Court vacate the status quo order and on the aforesaid basis the parties are desirous to enter into this Agreement". The parties to the agreement agreed that although the obligation to contest and to obtain a favourable adjudication and/or dismissal of T.S. No.94 of 2000 and other pending proceedings is that of the vendor, nevertheless cost and expenditure for contesting the same would be borne by the purchasers. The agreement further proceeds to record that the "Vendor simultaneously with the execution of this Agreement has executed and delivered appropriate Power of Attorney in favour of the Purchasers" nominee authorizing and empowering such nominee to contest the said suit and all other related proceedings and all other legal proceedings".
(3.) CLAUSE 9 of the agreement provides as follows : "9. The Purchasers have agreed to enter into this agreement for purchase of Third Scheduled property subject to pending litigations as stated above and particularly subject to condition of maintenance or order of status-quo and other interim orders as passed in Title Suit No.94 of 2000 (Padmavati Investment Limited "Versus- Bimala Shaw and Ors.) and Title Suit No.101 of 2000 (Chaman Projects Private Limited "Versus- Shyam Sundar Saha and ors.) and further subject to dismissal or settlement of such litigations as stated herein." Subsequently, however, the vendor revoked the power of attorney granted in favour of the representative of the petitioners and allegedly started negotiating with third parties for sale/transfer of their respective shares in the suit property to destroy the rights of the petitioners. Feeling aggrieved, the petitioners have instituted three separate suits against the opposite parties 2 to 13 and have obtained interim orders of injunction restraining them from selling or disposing of their respective shares in the suit property.;