# Shri Gordhan & Ors v. Smt. Bohati & Ors - **Citation:** (2022) 3 ILRA 495 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-02-02 - **Case number:** Matters Under Article 227 No. 228 of 2022 - **Bench:** Saral Srivastava - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-gordhan-ors-v-smt-bohati-ors-48208 - **Pages:** 7 ## Headnote Sri Javed Husain Khan, Sri Chetan Chatterjee A. Practice & Procedure - The Court rejected the objection by the petitioner who are defendants against additional written statement. (Para 20) Petition Rejected. (E-10) List of Cases cited: ## Text 3 All. Shri Gordhan & Ors. Vs. Smt. Bohati & Ors. 495 relying on the evidence of victim. For the aforesaid reasons, there appears no ground to disturb the acquittal of the respondent/accused under Sections 376/511 of IPC recorded by the trial Court. 16. We, therefore, do not consider it to be a fit case for grant of leave to appeal to the appellant. The application seeking leave to appeal is, accordingly, rejected. The appeal is also dismissed. ---------- (2022)03ILR A495 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 02.02.2022 BEFORE THE HON'BLE SARAL SRIVASTAVA, J. Matters Under Article 227 No. 228 of 2022 (CIVIL) Shri Gordhan & Ors. ...Petitioners Versus Smt. Bohati & Ors. ...Respondents Counsel for the Petitioners: Sri Ashish Kumar Singh, Sri Ajay Kumar Singh Counsel for the Respondents: Sri Javed Husain Khan, Sri Chetan Chatterjee A. Practice & Procedure - The Court rejected the objection by the petitioner who are defendants against additional written statement. (Para 20) Petition Rejected. (E-10) List of Cases cited: 1. Vidyawati Vs Man Mohan & ors. 1995 SCC (5) 431 (distinguished) (Delivered by Hon'ble Saral Srivastava, J.) 1. Heard Sri Ashish Kumar Singh, learned counsel for the petitioners and Sri Chetan Chatarjee, learned counsel for the respondent nos.8 and 9 through video conferencing. 2. This petition has been filed under Article 227 of the Constitution of India by the defendants against the order dated 23.04.2019 passed in Original Suit No.48 of 1992 (Zile Singh Vs. Sanmukh and others) whereby the Court of Additional Civil Judge-I (Senior Division), Saharanpur has rejected the application of petitioners (Paper No. 26Ga), praying for rejection of written statement filed by respondent no.8 and 9 and the order dated 24.11.2021 passed by Additional District Judge, Court No.1, Saharanpur passed in Civil Revision No.60 of 2019 (Gordhan and others Vs. Zile Singh) confirming the order of trial Court dated 23.04.2019. 3. The suit has been instituted by the respondent nos.1 to 6 for specific performance of contract on the ground that one Sanmukh had entered into a registered agreement to sale dated 27.11.1991 with the respondent nos. 1 to 6 in respect of property in dispute. 4. In the Original Suit No. 48 of 1992, Sanmukh filed written statement denying execution of agreement to sale. The relevant paragraph nos.23, 24, 26, 27 of written statement are extracted herein below: "23- यह कणक ववाददी णकवा यह णकहनवा गलत हहै कणक प्रकतववाददी ननुं० 1 नने सम्पतणत्त मन्द्रजवा ववाद पत्र मद (घ ) णकवाववाददी णकने सवाथ कवक्रय णकरनने णकवा अननुबनुंि अनुंणकन 16,0000/- रूपयने मम कणकयवा हहो यवा इस सम्बन्ध मम प्रकतववाददी ननुं० 1 नने 496 INDIAN LAW REPORTS ALLAHABAD SERIES ववाददी णकने कहत मम कद० 27-11-91 णकहो णकहोई अननुबनुंि पत्र तहरदीरव कनष्पवाकदत णकरवाणकर सबरतजस्ट० णकवायवायाटलय दनेवबन्द तजलवा सहवारनपनुर मम पनुंजदीणककत णकरवायवा हहो यवा अनुंणकन 55,000/- रू० उकअननुबन्ध पत्र णकने पनुंजदीणकरि णकने समय प्रकतववाददी ननुं० -1 नने ववाददी सने अकणिम िनरवाकणश णकने रूप मम नणकद प्रवाप कणकयने हहो। 24- यह कणक ववाददी णकवा यह णकहनवा गलत हहै कणक ववाददी व प्रकतववाददी ननुं -1 णकने बदीच अननुबनुंतित पत्र णककी मनुख्य णशतयाट कनम्न तहैय पवाई हो बललणक ववाददी प्रकतववाददी ननुं० -1 णककी बदीच मम णकहोई महवायदवा सम्पतणत्त मन्द्रजवा ववाद पत्र मद अ णकहो बनेचनने णककी बवावत नहहीुं हहआ इसतलए उसदी णशतयाट णकने तहैय हहोनने यवा यह तहैय हहोनने णकवा णकहोई प्रश्न हदी पहैदवा नहहीुं हहोतवा कणक प्रकतववाददी ननुं० 1 सम्पतणत्त मद (अ ) मन्द्रजवा ववाद पत्र णकवा बहैनवामवा कदनवानुंणक 21-1-93 तणक ववाददी यवा उसणकने नवाकमत व्यकक णकने कहत मम कनष्पवाकदत णकरवाणकर पनुंजदीणककत णकरवायनेगवा और णशनेष िनरवाकणश अनुंणकन एणक लवाख पवानुंच हजवार रूपयने बहैनवामने णकने पनुंजदीणकरि णकने समय ववाददी सने प्रवाप णकरनेगवा। और नवा हदी यह स्वदीणकवार हहै कणक ववाददी णकने कहत मम बहैनवामवा णकरनने णकने समय तणक णकतथत लनेखपत्र णकहो प्रकतववाददी ननुं० 1 कणकसदी अन्य व्यकक णकने कहत मम हस्तवान्तररत नहहीुं णकरनेगवा और सम्पतणत्त णकहो हर प्रणकवार णकने भवार सने मनुक रखनेगवा। 26- यह कणक ववाददी णकवा यह णकहनवा भदी गलत हहै कणक ववाददी व प्रकतववाददी ननुं० 1 णकने बदीच णकतथत इणकरवारनवामम णकने समय यह णशतर तहैय पवाई हहो कणक यकद प्रकतववाददी ननुं० -1 सम्पतणत्त बहैय तलब णकवा बहैनवामवा ववाददी णकने कहत मम णकरनने सने चचूणक णकरनेगवा तहो ऐसदी सचूरत मम ववाददी णकहो यह अतिणकवार कणकयवा गयवा हहो कणक वह समक्ष न्यवायवालय मम ववाद दवायर णकरणकने न्यवायवालय णकने मवाध्यम सने बहैनवामवा णकरवा लने और सम्पतणत्त पर जववाब प्रवाप णकर लने। यवा ऐसदी सचूरत मम प्रकतववाददी सनुं० 1 ववाददी णकने समस्त हजर व खचर णकहो अदवा णकरनने णकवा तजम्मनेदवार हहोगवा। 27- यह कणक ववाददी व प्रकतववाददी ननुं० -1 णकने बदीच णकहोई मनुहवायदवा बवावत बनेचनने आरवाजदी मन्द्रजवा ववाद पत्र मय अ नहहीुं हहआ हहै। और न हदी प्रकतववाददी ननुं० 1 णकने णकतथत दस्तवावनेज तजसणकहो ववाददी एणकरवारनवामवा जवाकहर णकरतवा हहै।ववाददी णकने हणक मम बतहोर इणकरवारनवामवा जवाकहर णकरतवा हहै ववाददी णकने हणक मम बतहोर इणकरवारनवामवा मवाहदवा बय मवानतनेहहए तहरदीर व तणकमदील णककी असतलयत यह हहै कणक प्रकतववाददी ननुं० 1 सने मनुस्तकणकल तहोर पर णिवाम णकवालरमतजलवा णकरनवाल हररयवािवा मम रहनने लगवा हहै प्रकतववाददी 3 All. Shri Gordhan & Ors. Vs. Smt. Bohati & Ors. 497 मनुजदीब णकने पनुत्र भदी वहहीुं रहतने हहै प्रकतववाददी सनुं० 1 णकने पनुत्र रवाजनेणश णकहो णकनु छ जमदीन णिवाम णकवालरूम मम खरदीदनदी थदी। तजसणकने तलए 40000/- रूपयने णककी आवश्यणकतवा थदी। तजनणकवा तजक्र प्रकतववाददी ननुं० 1 नने ववाददी णकने सवाथ कणकयवा। जहो कणक ववाददी व प्रकतववाददी ननुं० 1 णकवा आपस मम णकवाफकी उठनवा बहैठनवा थवा तथवा प्रकतववाददी ननुं० 1 णकवा ववाददी पर पचूरवा कवश्ववास थवा नवम्बर सन 1991 मम प्रकतववाददी ननुं० 1 नने ववाददी सने 40,000/-रू० उिवार दनेनने णकने तलए णकहवा ववाददी प्रकतववाददी ननुं० -1 णकहो 40,000/- रू० बततौर णकजयाट तदीन रूपयवा सहैणकडवा मवाहववार सचूद पर दनेनने णकहो तहैयवार हहआ और ववाददी नने प्रकतववाददी ननुं० 1 सवाथ यह भदी णशतयाट रखदी कणक सम्पकतत मद अ मन्द्रजवा ववाद पत्र प्रकतववाददी ननुं० 1 णकने यहहॉ रहन णकरनदी पडनेगदी आपसदी बवातचदीत णकने बवाद प्रकतववाददी ननुं० 1 सने णकजयाट णककी रणकम पर दहो रुपयने 75 पहैसने सहैणकडवा प्रकतमवाह पर णकजयाट दनेनेनने णकहो रवाजदी हहो गयवा मगर उसमम यह णशतयाट रखदी कणक 14 महदीनने णककी बजवाय मय असल णकजयाट दस्तवावनेज रहनवामवा मम प्रकतववाददी सनुं० 1 दवारवा लनेनवा तहरदीर णकरवायवा जवायनेगवा। यवाकन णकजयाट णककी अदवायगदी 55,000/-रू० तलखवाई जवायनेगदी तवाकणक प्रकतववाददी ननुं० 1 पर णकजयाट णककी ववापसदी णकवा दबवाव रह सणकने । " 5. During the pendency of suit, Sanmukh had died on 30.03.2018. After the death of Sanmukh, respondent nos. 8 and 9, who are the legal heirs of late Sanmukh have been impleaded in the suit as defendant no.1/1 and 1/2 who file their written statement (paper no. 248-A2) on 14.01.2019 wherein they admitted in paragraph no.4 of their additional written statement about sale of property in dispute. Paragraph 4 of the additional statement is extracted herein below: "4- यह कणक प्रकतववाददीगि मनुजदीब णकने कपतवा णकवा मचूल कनववास ववालवा णिवाम णकवालररोुं उफयाट णकवालरम ववाद हवाजवा मम तलप सम्पतणत्त ववालने मतौजने बडगवागााँव सने अत्यतिणक दचूरदी पर लस्थत थवा। तथवा दहोनहो गवानुंवरोुं णककी दचूरदी अत्यतिणक हहोनने णकने णकवारि दहोनहो गवानुंवरोुं मम णकवाश्त णककी जवानदी सम्भव नहदी रह गयदी थदी। अततः वषयाट 1991 मम प्रकतववाददीगि मनुजदीब णकने कपतवा नने अपनदी सम्पतणत्त वकियाटत ववाद पत्र णकहो तजलने तसनुंह णकहो कवक्रय णकरनवा तय णकर तलयवा थवा। तथवा ववाददी तजलने तसनुंह सने प्रश्नगत सम्पतणत्त णकहो 1,60,000/- रूपयने मम कवक्रय णकरनवा तय णकरणकने एणक दस्तवावनेज तजलनेतसनुंह णकने कहत मम ब्यवानने णकने रूप मम 55000/- रूपयने प्रवाप णकरणकने कनष्पवाकदत णकरवायवा थवा। " 6. The petitioner, who claims to be the purchaser of the property in dispute by sale deed dated 08.05.1992, filed objection (paper no. 26Ka) praying therein that the 498 INDIAN LAW REPORTS ALLAHABAD SERIES additional written statement filed by respondent nos.8 and 9 may not be taken on record for the reason that the stand taken by them in their written statement is contrary to the stand taken by their father in his written statement. It is pleaded that the father of the respondent nos.8 and 9 has denied the execution of agreement to sale dated 27.11.1991 and thus, the stand of respondent nos.8 and 9 in their written statement admitting the sale of property by their father is contrary to the stand taken by their father and, therefore, the additional written statement of respondent nos.8 and 9 cannot be taken on record in view of Order 22 Rule IV Sub-rule 2 of CPC. 7. The respondent nos.8 and 9 filed their objection to the petitioners' application 26-Ga2 on 23.04.2019 praying that application 26-Ga2 of petitioners may be rejected. 8. The trial Court by order dated 23.04.2019 rejected the objection of petitioners holding that the objection which has been taken by the petitioners in their application (paper 26Ga) cannot be looked into at this stage as only written statements have been filed and evidence in the suit has yet to be led by the parties. Accordingly, it concluded that it is not appropriate at this stage to correct the averments of respondent nos.8 and 9 in the additional written statement. 9. The petitioners preferred revision against the order dated 23.04.2019. The revisional Court also by order dated 24.11.2021 rejected the revision affirming the order passed by the trial Court. 10. Challenging the aforesaid impugned orders, learned counsel for the petitioners contended that both the courts below have committed manifest error in rejecting the application of petitioners 26Ga inasmuch as both the courts below has failed to appreciate that it is established on record that the additional written statement of respondent nos.8 and 9 contains pleading contrary to the pleading by their father in his written statement which is not permissible under Order 21 Rule IV Sub-rule 2. Thus, he submits that as the issue of jurisdiction is involved, therefore, the orders of court below are not sustainable. In support of his submission, he has placed reliance upon judgment Vidyawati Vs. Man Mohan & Ors., 1995 SCC (5) 431. 11. Per-contra, learned counsel for the respondents contended that the petitioners are defendant and have no locus to challenge the additional written statement filed by the respondent nos.8 and 9. He submits that both the courts below have not committed any jurisdictional error in rejecting the application of petitioners and as such the writ petition is liable to be dismissed. He further submits that each defendant has to stand on his own legs and has to prove his case and therefore, for this reason also the application of petitioner 26Ga was misconceived and has been rightly rejected. 12. I have heard learned counsel for the petitioners and learned Standing Counsel. 13. The suit has been instituted by respondent no. 1 to 6 stating that a registered agreement to sale has been entered into between them and Sanmukh ( defendant no. 2) i.e. father of respondent no. 8 and 9. In additional statement, Sanmukh had denied the execution of any agreement to sale dated 27.11.1991. After 3 All. Shri Gordhan & Ors. Vs. Smt. Bohati & Ors. 499 the death of Sanmukh, respondent no. 8 and 9, substituted as heirs of Sanmukh, filed their additional written statement admitting that their father had entered into agreement to sale dated 27.11.1991. 14. Undisputedly, the petitioners claim to be the owner of the property by virtue of sale deed dated 08.05.1992 executed by Sanmukh in their favour with respect to property in dispute. Petitioners are impleaded as defendant in the suit and they have to stand on their own legs to succeed in the suit. 15. The petitioners at this stage cannot be said to be aggrieved by filing of additional written statement by respondent no. 8 and 9. The petitioners have filed written statement and have to stand on their own legs. It is also settled in law that the petitioners cannot have better title than the Sanmukh and once the respondent no. 1 to 6 proves that agreement to sale was executed by late Sanmukh, the law will take its own course. 16. The matter can be viewed from another angle. Admittedly, the petitioners are alien to agreement to sale, therefore, in view of judgement of Apex Court in Gurmit Singh (Supra), they are neither necessary nor proper party in the suit and by abundance precaution they have been impleaded as party in the suit. Paragraph 5.1 and 5.2 of said judgement are reproduced herein below: "5.1 At the outset, it is required to be noted that the original plaintiffs filed the suit against the original owner ? vendor ? original defendant no.1 for specific performance of the agreement to sell with respect to suit property dated 3.5.2005. It is an admitted position that so far as agreement to sell dated 3.5.2005 of which the specific performance is sought, the appellant is not a party to the said agreement to sell. It appears that during the pendency of the aforesaid suit and though there was an injunction against the original owner ? vendor restraining him from transferring and alienating the suit property, the vendor executed the sale deed in favour of the appellant by sale deed dated 10.07.2008. After a period of approximately four years, the appellant filed an application before the learned trial Court under Order 1 Rule 10 of the CPC for his impleadment as a defendant. The appellant claimed the right on the basis of the said sale deed as well as the agreement to sell dated 31.3.2003 alleged to have been executed by the original vendor. The said application was opposed by the original plaintiffs. The learned trial Court despite the opposition by the original plaintiffs allowed the said application which has been set aside by the High Court by the impugned judgment and order. Thus, it was an application under Order 1 Rule 10 of the CPC by a third party to the agreement to sell between the original plaintiffs and original defendant no.1 (vendor) and the said application for impleadment is/was opposed by the original plaintiffs. Therefore, the short question which is posed for consideration before this Court is, whether the plaintiffs can be compelled to implead a person in the suit for specific performance, against his wish and more particularly with respect to a person against whom no relief has been claimed by him? 5.2 An identical question came to be considered before this Court in the case of Kasturi (supra) and applying the principle that the plaintiff is the dominus litis, in the similar facts and circumstances 500 INDIAN LAW REPORTS ALLAHABAD SERIES of the case, this Court observed and held that the question of jurisdiction of the court to invoke Order 1 Rule 10 CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct and legal interest in the controversy involved in the suit. It is further observed and held by this Court that two tests are to be satisfied for determining the question who is a necessary party. The tests 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. It is further observed and held that in a suit for specific performance the first test can be formulated is, to determine whether a party is a necessary party there must be a right to the same relief against the party claiming to be a necessary party, relating to the same subject matter involved in the proceedings for specific performance of contract to sell. It is further observed and held by this Court that in a suit for specific performance of the contract, a proper party is a party whose presence is necessary to adjudicate the controversy involved in the suit. It is further observed and held that the parties claiming an independent title and possession adverse to the title of the vendor and not on the basis of the contract, are not proper parties and if such party is impleaded in the suit, the scope of the suit for specific performance shall be enlarged to a suit for title and possession, which is impermissible. It is further observed and held that a third party or a stranger cannot be added in a suit for specific performance, merely in order to find out who is in possession of the contracted property or to avoid multiplicity of the suits. It is further observed and held by this Court that a third party or a stranger to a contract cannot be added so as to convert a suit of one character into a suit of different character. In paragraph 15 and 16, this Court observed and held as under:" 17. For the aforesaid reason, this Court finds that the petitioners are not aggrieved by the filing of written statement by respondent no. 8 and 9 and thus, their objection was not maintainable. 18. Now coming to the merit of the case, this Court finds that the Court below has recorded finding that the parties have filed their written statement and evidences are yet to be filed by the parties. Now, the question that arises whether the stand taken by the respondent no. 8 and 9 is contrary to the stand taken by the late Sanmukh in his written statement at this stage or at the stage of trial. This Court believes that the question as to whether the stand of respondent no. 8 and 9 in written statement is contrary to the stand taken by late Sanmukh, can be looked into at the stage of trial for which an issue has got to be framed and necessary evidence is to be led by the parties, on the basis of which the adjudication of the said issue is possible. This Court finds no illegality in the view taken by the Court below that the stage to consider as to whether the stand of respondent no. 8 and 9 in their written statement is contrary to the stand taken by late Sanmukh in his written statement. As only the pleadings have been exchanged in the suit and evidence is yet to be led by the parties. 19. This Court may also take note of the fact that the agreement to sale is a registered document and therefore, the Court below has rightly rejected the application of the petitioners for rejecting 3 All. M/S Jai Prakash Associates Ltd., G.B. Nagar Vs. High Tech Tyre Retreaders Pvt. Ltd., Muzaffarnagar & Anr. 501 additional statement of respondent no. 8 and 9 on the ground stated above. 20. Now coming to the judgment relied upon counsel for the opposite party in the case of Vidyawati (supra) the Apex Court has dismissed the appeal of Vidyawati who was impleaded as legal heir in a suit instituted by respondent-plaintiff, in which the petitioner had filed additional written statement claiming title and interest in the property on the basis of Will said to have been executed by Smt. Champawati, which was dismissed by the trial Court by order dated 06.08.1994 holding that it is not open to the present applicant to assert her own right or hostile title to the suit. It was held that if legal representatives wants to raise any individual point, which deceased party could not raise, he must get himself impleaded in his personal capacity or must challenge the decree in separate suit. The facts of the case of Vidyawati are different from the present case inasmuch as in the said case the objection against filing of additional written statement filed by legal representatives of deceased-defendant which was contrary to the written statement of deceased defendant, was taken by plaintiff in the suit and in such view of the fact the Apex Court held as above, but in the present case the petitioners are defendant and as they have to stand on their own legs they cannot file any objection, therefore, the objection by the petitioner against additional written statement is not maintainable. Thus, the judgment of Apex Court passed in the case of Vidyawati is not applicable in the present case. 21. For the reasons given above, the writ petition is dismissed with no order as to cost. ---------- (2022)03ILR A501 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 25.02.2022 BEFORE THE HON'BLE J.J. MUNIR, J. Matters Under Article 227 No. 479 of 2019 (CIVIL) M/S Jai Prakash Associates Ltd., G.B. Nagar ...Petitioner Versus High Tech Tyre Retreaders Pvt. Ltd., Muzzafarnagar & Anr. ...Respondents Counsel for the Petitioner: Sri Rohan Gupta, Sri Harshit Gupta Counsel for the Respondents: Sri Rameh Chandra Agrahari, Sri Mohit Kumar, Sri Sumit Daga A. Interpretation of Statute - Micro, Small and Medium Enterprises Development Act, 2006 - Section 19 - Arbitration & Conciliation Act, 1996 - Section 34 - The jurisdiction of the District Judge is dependent upon the condition of pre-deposit of 75% of the sum of the money due under the award. However, the Supreme Court in Goodyear India case indicated that the Statute gives freedom to the Court to direct the condition of predeposit to be complied with,, if felt necessary, by a deposit in installments. But it is made clear that in whatever way the condition of pre-deposit of 75% is complied with, the condition to the extent of deposit of 75% has to be complied with. (Para 10& 12) Petition Disposed of. (E-10) List of Cases cited: 1. Goodyear India Ltd. Vs Norton Intech Rubbers Pvt. Ltd. & anr ( 2012) 6 SCC 345 (Delivered by Hon'ble J.J. Munir, J.)