# Sulthan Said Ibrahim v. Prakasan & Ors

- **Citation:** 2025 INSC 764
- **Court:** Supreme Court of India
- **Decided:** 2025-05-23
- **Case number:** Civil Appeal No. 7108 of 2025
- **Bench:** J.B. Pardiwala, R. Mahadevan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sulthan-said-ibrahim-v-prakasan-ors-38722
- **Pages:** 30

## Headnote

Issue arose whether the High Court committed any error in rejecting
the original petition filed by the appellant on the ground that the
I.A. for deletion of name of the appellant from the array of parties
was barred by res judicata; whether the appellant is entitled to the
benefit of s.11 of the Kerala Buildings (Lease and Rent Control)
Act, 1965; and whether the transfer of possession of the suit
property was implicit in the decree of specific performance in the
facts of the case.
Headnotes†
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
* Author
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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 agai

## Text

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[2025] 5 S.C.R. 2185 : 2025 INSC 764
Sulthan Said Ibrahim
v.
Prakasan & Ors.
(Civil Appeal No. 7108 of 2025)
23 May 2025
[J.B. Pardiwala* and R. Mahadevan, JJ.]
Issue for Consideration
Issue arose whether the High Court committed any error in rejecting
the original petition filed by the appellant on the ground that the
I.A. for deletion of name of the appellant from the array of parties
was barred by res judicata; whether the appellant is entitled to the
benefit of s.11 of the Kerala Buildings (Lease and Rent Control)
Act, 1965; and whether the transfer of possession of the suit
property was implicit in the decree of specific performance in the
facts of the case.
Headnotes†
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
* Author
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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
[2025] 5 S.C.R.
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Sulthan Said Ibrahim v. Prakasan & Ors.
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]
Case Law Cited
Birma Devi & Ors v. Subhash & Anr. [2024] 12 SCR 484 : 2024
SCC Online SC 3676; P.C. Varghese v. Devaki Amma Balambika
Devi [2005] Supp. 4 SCR 267 : (2005) 8 SCC 486; B. Bal Reddy v.
Teegala Narayana Reddy [2016] 4 SCR 62 : (2016) 15 SCC 102;
Mumbai International Airport (P) Ltd. v. Regency Convention Centre
& Hotels (P) Ltd. [2010] 7 SCR 790 : (2010) 7 SCC 417; Ramankutty
Guptan v. Avara [1994] 1 SCR 542 : (1994) 2 SCC 642; Ramesh
Hirachand Kundanmal v. Municipal Corpn. of Greater Bombay
[1992] 2 SCR 1 : (1992) 2 SCC 524; Bhanu Kumar Jain v. Archana
Kumar [2004] Supp. 6 SCR 1104 : (2005) 1 SCC 787; Satyadhyan
Ghosal v. Deorajin Debi [1960] 3 SCR 590; S. Ramachandra
Rao v. S. Nagabhushana Rao [2022] 17 SCR 451 : 2022 SCC
OnLine SC 1460; Pankajbhai Rameshbhai Zalavadiya v. Jethabhai
Kalabhai Zalavadiya [2017] 12 SCR 1028 : (2017) 9 SCC 700;
Rohit Kochhar v. Vipul Infrastructure Developers Ltd. [2024] 11
SCR 1289 : 2024 SCC OnLine SC 3584; Babu Lal v. Hazari Lal
Kishori Lal [1982] 3 SCR 94 - referred to.
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Supreme Court Reports
Tarini Charan Bhattacharya v. Kedar Nath Haldar, 1928 SCC OnLine
Cal 172; Moolla Cassim bin Moolla Ahmed v. Moolla Abdul Rahim,
1905 SCC OnLine PC 17 - referred to.
List of Acts
Code of Civil Procedure, 1908; Kerala Buildings (Lease and Rent
Control) Act, 1965; Specific Relief Act, 1963.
List of Keywords
Deletion of name from the array of parties; Barred by res judicata;
Transfer of possession; Decree of specific performance; Suit for
specific performance; Impleadment as a legal heir; Execution
proceedings; Power to strike out or add a party to the proceedings;
Rescission of the contract; Expression "at any stage of the
proceedings".
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7108 of 2025
From the Judgment and Order dated 29.11.2021 of the High Court
of Kerala at Ernakulam in OPC No. 2290 of 2013
Appearances for Parties
Advs. for the Appellant:
V. Chitambaresh, Sr. Adv., Harshad V. Hameed, Dileep Poolakkot,
C. Govind Venugopal, Mrs. Ashly Harshad.
Adv. for the Respondents:
Mukund P. Unny.
Judgment / Order of the Supreme Court
Judgment
J.B. Pardiwala, J.
1.
Leave granted.
2.
The path to justice is often winding, shaped by the weight of hierarchy
and the labyrinth of procedure. The seeker, weary yet resolute, climbs
each rung of the judicial ladder, only to stand at the summit with
[2025] 5 S.C.R.
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Sulthan Said Ibrahim v. Prakasan & Ors.
hope overshadowed by the fear of denied relief. The respondent
no. 1 before us embodies this relentless pursuit-a traveller in the
quest for justice, yearning for its elusive embrace.
3.
The present appeal arises from the judgment and order dated
29.11.2021 passed by the High Court of Kerala at Ernakulam in
OP(C) No. 2290 of 2013 whereby the High Court dismissed the
original petition filed by the appellant and thereby affirmed the order
passed by the Principal Sub Judge, Palakkad in I.A. No. 2348/2012
in O.S. No. 617/1996 rejecting the application filed by the appellant
seeking the deletion of his name from the array of parties.
A.
FACTUAL MATRIX
4.
The appellant is the grandson of one Late Jameela Beevi. Late
Jameela Beevi was the original defendant in O.S. No. 617 of 1996,
instituted by the respondent no. 1 herein (original plaintiff) before the
Principal Sub Court, Palakkad seeking specific performance of the
agreement to sell dated 14.06.1996 executed between the original
plaintiff and the original defendant, whereby the original defendant
undertook to transfer the suit property to the original plaintiff for a
total consideration of Rs. 6,00,000/-, upon payment of the balance
sale consideration of Rs. 1,50,000/- within three months from the
execution of the agreement. Pertinently, the appellant herein was
one of the witnesses to the sale agreement.
5.
The suit property, measuring 1 cent, situated in Keezhumuri Desom,
Ward No. 3, Block 42, Survey No. 1895, Palakkad Town, Kerala,
comprises of a tiled-roofed shop with walls on three sides and two
shutters on the front side along with the land on which the shop
stands. The same was purchased by the original defendant vide
assignment deed dated 10.09.1976. It is noteworthy that clause
8 of the said deed if read with the property description indicates
the factum of tenancy, inter alia, of one of the sons of the original
defendant and the father of the appellant, Late Shahul Hameed. It
is the case of the appellant that his father was a tenant of the suit
property from 1969 till his death on 01.11.1992.
6.
The case before us has a convoluted history and there have been
delays at multiple stages of the proceedings. Despite having obtained
an ex-parte decree way long back in 1998, and a final decree after
contested hearing in 2003, the original plaintiff is yet to obtain the
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possession of the suit property. For the sake of clarity, we must look
into and discuss the different stages wherein delay was caused under
different headings so as to demonstrate how well the process of law
can be abused by dubious litigants in this country.
Phase - I
7.
The case of the original plaintiff before the Trial Court was that although
he was always ready and willing to pay the balance consideration,
yet the original defendant was not inclined towards executing the
sale deed for the suit property. As the original defendant failed to
execute the sale deed within a period of three months from the date
of entering into the agreement, despite issuing a legal notice, he
instituted a suit for specific performance.
8.
The O.S. No. 617/1996 instituted by the original plaintiff was decreed
ex parte on 30.06.1998 and the original defendant was directed to
execute the sale deed in favor of the original plaintiff upon payment
of the balance consideration.
9.
The original defendant filed I.A. No. 2204 of 1998 seeking to set
aside the ex parte decree, which was dismissed by the Trial Court
on 30.06.1999. The original defendant challenged the order of the
Trial Court before the High Court in CMA No. 125 of 1999, which
came to be allowed, thereby restoring the suit for trial.
Phase - II
10. Upon restoration, the original defendant filed written statement before
the Trial Court contesting that there was no agreement to sell existing
between the parties and he had no interest in selling the property.
The suit property was being utilised by her son for selling sugar and
other grocery items, and she had to obtain a loan of Rs 4,50,000/-
for the purpose of the wedding of her granddaughter. In lieu of the
loan, the original plaintiff had obtained some signed papers from her
and had misused them to forge the agreement to sell.
11. The suit came to be decreed by the Trial Court on 17.03.2003,
which held that the execution of the agreement to sell was proved
by the original plaintiff and the defence put forth by the original
defendant was not credible. The Trial Court directed the original
defendant to execute the sale deed upon payment of the remaining
sale consideration.
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Sulthan Said Ibrahim v. Prakasan & Ors.
Phase - III
12. The order of the Trial Court decreeing the suit was challenged by the
original defendant by way of filing RFA No. 281 of 2003 before the
High Court. However, the High Court dismissed the same and affirmed
the order of the Trial Court vide its judgment dated 02.08.2008.
13. The original defendant further challenged the order of the High Court
before this Court by way of SLP (C) No. 18880 of 2008. However,
the same also came to be dismissed vide order dated 13.08.2008,
thereby conclusively affirming the decree for specific performance
granted by the Trial Court.
Phase - IV
14. Upon failure of the original defendant to execute the sale deed after
accepting the balance consideration, the original plaintiff moved the
I.A. No. 2548/2003 in O.S. No. 617/1996 under Section 28(5) read
with Order XXI Rule 19 of the Code of Civil Procedure (for short,
"the CPC") on 30.07.2003 seeking the execution of the sale deed
in its favour by the intervention of the court.
15. During the pendency of the execution proceedings, the original
defendant passed away on 19.10.2008, necessitating impleadment
of her legal heirs. The original plaintiff filed I.A. No. 3823 of 2008 in
I.A. No. 2548/2003 in O.S. No. 617/1996 on 20.11.2008 to bring her
legal heirs on record which came to be allowed by the Trial Court.
16. Objections were raised by some of the legal heirs of the original
plaintiff, inter alia, on the ground that the relief of possession was
not granted by the Trial Court despite having been pleaded and thus
there was no liability to hand over the possession to the original
plaintiff even if a sale deed had to be executed. Further, the original
plaintiff had failed to deposit the entire balance sale consideration
in time and had deposited only the balance amount after deducting
the costs awarded by the Trial Court while decreeing the suit. For
the aforesaid reasons, the execution was objected on the ground
that the contract stood rescinded. It is pertinent to note that the
appellant herein, being one of the impleaded parties, initially raised
no objection to his impleadment.
17. I.A. No. 669/2009 in O.S. No. 617/1996 under Section 28 of the
Specific Relief Act, 1963 (for short, "the SRA, 1963") was also
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filed by some of the legal heirs of the original defendant seeking a
declaration that the contract stood rescinded.
18. The Principal Sub Court, Palakkad, dismissed the I.A. No. 669 of 2009
on 11.04.2012, observing that the deposit of Rs. 97,116/- made on
30.07.2003 by the original plaintiff was valid and in compliance with
I.A. No. 931 of 2004, wherein the High Court, during the pendency of
the first appeal against the decree, had permitted the respondent to
deposit the balance amount after deducting costs. The court further
ruled that possession of the property was implicit in the decree for
specific performance of the agreement to sell.
Phase - V
19. Aggrieved by the aforesaid, the legal heirs of the original defendant
filed CRP No. 233 of 2012 before the High Court of Kerala, which
came to be dismissed on 14.06.2012, affirming that rescission of
contract was unwarranted.
Phase - VI
20. Shortly thereafter, the appellant filed I.A. No. 2348 of 2012 in I.A.
No. 2548/2003 in OS No. 617 of 1996 on 19.07.2012 under Order I
Rule 10(2) of the CPC seeking deletion of his name from the array
of parties, on the ground that he was wrongly impleaded as a legal
heir under the Mohammedan Law and further asserting that he was a
tenant in the suit property, having inherited the tenancy from his late
father. He submitted that he was carrying on business from the suit
property and his tenancy rights could not have been adjudicated in
the execution proceedings. The original plaintiff objected to the said
I.A., inter alia, on the ground that the appellant had failed to raise
any of the said objections on any prior occasion and was doing the
same only to obstruct and delay the execution proceedings.
21. The Trial Court dismissed the said I.A. on 19.06.2013 and held
that the appellant was attempting to delay the execution by raising
frivolous issues and that too after having failed to raise during the
prior proceedings. The court noted that the appellant was a witness
to the sale agreement dated 14.06.1996, had previously participated
in litigation without objecting, and was now employing a strategy of
filing repetitive interlocutory applications to obstruct the execution of
the decree. The relevant observations made by the Trial Court are
reproduced hereinbelow:
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"[...] The records would show that supplemental
respondents 2 to 14 in I.A. 2548/2003 were sought to be
impleaded as per I.A. 3823/2008. On filing that petition
notice thereof was issued on 26.11.2008 to the proposed
supplemental respondents 2 to 14. Those respondents
tendered appearance. That was the first opportunity for
the petitioner herein to contend that he is not a legal heir
of Jameela Beevi and he ought not to be impleaded. That
was not done by him. It is to be noted that the court would
implead under Order XXII Rule 4 CPC after due enquiry.
During that enquiry the petitioner ought and might have
contended that he is not a legal heir of Jameela Beevi.
After his impleadment several petitions were preferred.
I.A. 669/2009 is a petition under section 28 of the specific
Relief Act to rescind the contract. The petitioner herein
was a respondent in that petition. After detailed enquiry
that petition was dismissed on 11.04.2012. Against that
order CRP 233/12 was preferred before the Hon. High
Court. The petitioner herein was the 5th respondent in
that CRP. That CRP was dismissed on 14.06.2012. In
these proceedings also petitioner herein had no case
that he is an unnecessary party. On the other hand, he
participated in those proceedings. On 24.07.2012 this
petition is filed. It is to be noted that the decree directing
execution of sale deed was passed on 17.03.2003, a
decade ago, RFA 281/2003 was dismissed on 02.04
2008. The decree attained finality. I.A.2548/2003 was
pending while dismissing RFA 281/2003. Since then the
supplemental respondents, one after other, is filing petitions
in their cunning strategy to delay the execution of a sale
deed pursuant to the decree, I.A. 669/2009 was one such
petition, CRP 233/2012 against the order of dismissal of
that petition was dismissed on 14.06.2012, Next month,
on 24.07.2012, the petitioner has come forward with this
petition, on experimental basis to open a new battle field,
on the frantic attempt to delay the implementation of the
decree, claiming tenancy right over the subject property
alleged to be inherited from his father. So long as he
is in the party array as legal heir of deceased original
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defendant the new plea cannot be put forward. It is to
circumvent that situation now he has come forward with
this plea to remove him from the party array as he being
not a legal heir of Jameela Beevi despite the fact that
such a plea was not taken over these years either at the
time of his impleadment or while participating in a series
of interlocutory applications. This petition, is yet another
ruse adopted by the respondents to delay the execution
of a sale deed pursuant to the decree. The petition is
barred by constructive resjudicata besides being devoid
of bonafides. Therefore, it is dismissed with cost to the
1st respondent/plaintiff."
22. The appellant challenged the order of the Trial Court before the High
Court in O.P. (C) No. 2290 of 2013, however the same came to be
dismissed vide the impugned order dated 29.11.2021. The High
Court observed that the impleadment of the appellant was valid
and his I.A. seeking deletion from the array of parties was barred
by res judicata. The High Court also observed that the claim of the
appellant for independent possession was also rightly rejected by
the Trial Court. The relevant observations made by the High Court
are reproduced hereinbelow:
"5. The undisputed facts reveals that the petitioner, along
with other legal heirs of Jameela Beevi, were impleaded
after due enquiry under Order I Rule 10 (2) of CPC. No
objection was raised by the petitioner at that stage and
the order by which he was impleaded as the additional
8th respondent has become final. Hence, the interlocutory
application filed thereafter, seeking deletion of petitioner's
name from the party array, is barred by res judicata.
6. The contention of the petitioner that he is having
independent possession over the property was rightly
rejected by the trial court, petitioner having failed to raise
such contention earlier or even in I.A.No.669 of 2009, filed
by his own siblings. Circumstances being as above, I am
constrained to hold that the attempt of the petitioner is to
delay the consideration in I.A.No.2548 of 2003 filed by
the first respondent, seeking execution of the sale deed
through court."
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23. In such circumstances referred to above, the appellant-original
defendant has come up before us with the present appeal.
B.
SUBMISSIONS ON BEHALF OF THE APPELLANT
24. Mr. V. Chitambaresh, the learned Senior Counsel, appearing for the
appellant, vehemently submitted that the High Court committed a
grave error in taking the view that as the impleadment of legal heirs
under Order I Rule 10(2) of the CPC was not objected to by the
appellant at the appropriate stage, the subsequent application filed
by the appellant for deletion of his name would be barred by virtue
of the doctrine of res judicata.
25. The learned counsel submitted that in the instant case, since the
relief of possession was not granted in O.S No. 617 of 1996 while
decreeing the suit for specific performance, the decree got fully
satisfied upon execution of the sale deed. The counsel placed
reliance on the judgment of this Court in Birma Devi & Ors v.
Subhash & Anr., reported in 2024 SCC Online SC 3676, wherein it
was held that relief of possession must be specifically sought when
the suit property is in possession of a third party. He also referred
to the decision in P.C. Varghese v. Devaki Amma Balambika Devi
reported in (2005) 8 SCC 486 wherein this Court held that Section
22 of the SRA, 1963 enacts a rule of pleading to avoid multiplicity
of proceedings.
26. The learned counsel further argued that Section 11 of the Kerala
Buildings (Lease and Rent Control) Act, 1965, contains a non obstante
clause restricting eviction except in accordance with the provisions of
the said Act. Therefore, before ordering delivery of possession, the
status of the appellant as a tenant must necessarily be adjudicated.
27. Relying on the decision of this Court in B. Bal Reddy v. Teegala
Narayana Reddy reported in (2016) 15 SCC 102, the counsel
submitted that the interest of a protected tenant continues to be
operative and subsisting so long as the protected tenancy is not
validly terminated.
28. The learned counsel pointed out that the father of the appellant,
Late Shahul Hameed, was a tenant in the suit property since the
year 1969, and the assignment deed No. 2805/1976 acknowledges
his tenancy, which continued with the appellant as his legal heir.
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Further, in 1992, Municipality License No. 215/92-93 was also issued
in the name of the father of the appellant. He contended that the
Municipality License No. PH2-27607/11 was thereafter issued in the
name of the appellant on 16.04.2011 thereby showing the exclusive
possession of the appellant on the suit property owing to the tenancy.
29. It was also contended that under the Mohammedan Law, the
legal heirs of a pre-deceased son are not the legal heirs of their
grandmother, who in the instant case was the original defendant
and the judgment debtor. The doctrine of representation does not
apply under the Mohammedan Law. The sale deed also indicates
that the property was individually owned by Jameela Beevi, and the
descendant of her pre-deceased son would have no legal claim. As
a sequitur, the tenancy rights of the appellant cannot be adjudicated
and decided upon by impleading him as a legal heir.
30. The learned counsel stressed that an order allowing impleadment
under Order I Rule 10(2) of the CPC is merely a summary procedure
and cannot operate as res judicata. Placing reliance on the decision
in Mumbai International Airport (P) Ltd. v. Regency Convention
Centre & Hotels (P) Ltd. reported in (2010) 7 SCC 417, he submitted
that this Court in the said decision held that the courts retain the
power to strike out parties at any stage of the proceeding under
Order I Rule 10(2) of the CPC.
31. The learned counsel also referred to the decision in Ramankutty
Guptan v. Avara reported in (1994) 2 SCC 642, wherein this Court
held that jurisdiction of the court does not cease after passing a
decree for specific performance, and the court retains control over
the decree. He also submitted that the appellant has no role in the
application filed for the recission of contract.
32. In such circumstances referred to above, the learned counsel prayed
that there being merit in his appeal, the same may be allowed.
C.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
33. Mr. Mukund P. Unny, the learned counsel appearing for respondent
no.1, vehemently submitted that the present appeal has been filed
solely with a view to delay the execution of the decree, despite
the fact that the judgment and decree dated 17.03.2003 in favor of
respondent no.1 attained finality after dismissal of the SLP(C) No.
18880 of 2008 arising therefrom on 13.08.2008. He emphasised
[2025] 5 S.C.R.
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Sulthan Said Ibrahim v. Prakasan & Ors.
that the respondent no.1 has not been able to obtain possession
of the suit property and thereby reap the fruits of the decree in his
favour due to persistent attempts by the appellant to stall execution
proceedings.
34. The learned counsel referred to the findings of the High Court in
the impugned order wherein the challenge by the appellant to the
dismissal of IA No. 2348 of 2012 seeking deletion of the appellant
from the party array was rejected. He argued that the key finding of
the High Court is that the impleadment under Order I Rule 10(2) of
the CPC had already attained finality and that the belated attempt
by the appellant to question the same was barred by res judicata.
35. The learned counsel also brought to our attention the observations
made by the Trial Court while dismissing the IA No. 2348 of 2012
in OS No. 617 of 1996. He submitted that the Trial Court took note
of the following:
a.
The appellant had ample opportunity in prior proceedings to
object to his impleadment but failed to do so.
b.
The appellant, rather than raising an objection to his
impleadment, participated in the proceedings, including the
application to rescind the contract.
c.
The appellant through various frivolous petitions was seeking
to delay the execution of the decree dated 17.03.2003.
36. On the aspect of tenancy rights of the appellant in the suit property,
the learned counsel submitted that the claim of tenancy in the suit
property inherited from the father of the appellant is devoid of merit.
He argued that the tenancy arrangement mentioned in the 1976 sale
deed by which Jameela Beevi purchased the suit property, was not
carried forward in the sale agreement of 1996, to which the appellant
himself was a witness. The learned counsel emphasized that there is
no documentary evidence, much less any other evidence, to support
the claim of tenancy raised by the appellant.
37. On the aspect of tenancy, he submitted that unlike the assignment
deed of 1976, the agreement to sell of 1996 did not contain any
clause conferring or transferring the right to deal with tenants to the
proposed buyer. He argued that such omission indicates that the
tenancy rights did not carry forward after the death of the father of
the appellant.
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38. The learned counsel pointed out that the suit for specific performance
was decreed in OS No. 617 of 1996, and the execution proceedings
were initiated thereafter. Despite the decree being affirmed right
upto this Court, the appellant and his family have been repeatedly
filing interlocutory applications to delay the execution. He pointed
out that IA No. 669 of 2009, seeking rescission of the contract, was
dismissed by the Trial Court, and the dismissal was affirmed by the
High Court in CRP No. 233 of 2012.
39. The learned counsel pointed out that the High Court, in the impugned
judgment, upheld the findings of the Trial Court, rejected the claims
of the appellant and reaffirmed the impleadment under Order I
Rule 10(2). The High Court also observed that the contention of
the appellant regarding tenancy was baseless and did not warrant
interference.
40. The learned counsel submitted that the sale deed has already been
executed on 22.11.2022 at the instance of the Trial Court. However,
the appellant has locked the premises, preventing the original plaintiff
from obtaining actual possession. In view of this, he argued that
the present appeal is infructuous as it seeks relief that is no longer
relevant.
41. In such circumstances, the learned counsel prayed that there being
no merit in this appeal, the same deserved to be dismissed with costs.
D.
ISSUES FOR CONSIDERATION
42. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the following questions
fall for our consideration:
a.
Whether the High Court committed any error in rejecting the
original petition filed by the appellant on the ground that the I.A.
for deletion of name of the appellant from the array of parties
was barred by res judicata?
b.
Whether the appellant is entitled to the benefit of Section 11
of the Kerala Buildings (Lease and Rent Control) Act, 1965?
c.
Whether in the facts of this case the transfer of possession of the
suit property was implicit in the decree of specific performance
in the facts of the case?
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Sulthan Said Ibrahim v. Prakasan & Ors.
E.
ANALYSIS
43. Order I Rule 10 inter alia empowers the court to allow addition,
substitution or deletion of a party to a suit at any stage of the
proceedings. It reads as follows:
"10. Suit in name of wrong plaintiff.-
(1) Where a suit has been instituted in the name of the
wrong person as plaintiff or where it is doubtful whether
it has been instituted in the name of the right plaintiff,
the Court may at any stage of the suit, if satisfied that
the suit has been instituted through a bona fide mistake,
and that it is necessary for the determination of the real
matter in dispute so to do, order any other person to be
substituted or added as plaintiff upon such terms as the
Court thinks just.
(2) Court may strike out or add parties.-
The Court may at any stage of the proceedings, either
upon or without the application of either party, and on
such terms as may appear to the Court to be just, order
that the name of any party improperly joined, whether as
plaintiff or defendant, be struck out, and that the name
of any person who ought to have been joined, whether
as plaintiff or defendant, or whose presence before the
Court may be necessary in order to enable the Court
effectually and completely to adjudicate upon and settle
all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without
a next friend or as the next friend of a plaintiff under any
disability without his consent.
(4) Where defendant added, plaint to be amended.-
Where a defendant is added, the plaint shall, unless the
Court otherwise directs, be amended in such manner as
may be necessary, and amended copies of the summons
and of the plaint shall be served on the new defendant
and, if the Court thinks fit, on the original defendant
(5) Subject to the provisions of the 1 [Indian Limitation
Act, 1877 (XV of 1877)], section 22, the proceedings as
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against any person added as defendant shall be deemed
to have begun only on the service of the summons."
44. For the purpose of answering the pivotal question at hand, we only
need to refer to Sub-rules (2) of Order I Rule 10. A bare reading
of the provision extracted above indicates that Sub-rule (2) vests
a very broad and substantial power in the court to delete or add a
party, at any stage of the suit proceedings, either suo motu or upon
an application of either of the parties before it. It provides that the
court may delete the name of a party on such terms as may appear
to the court to be just and proper. It may add any party whose
presence before the court is necessary for the effective and complete
adjudication and settlement of all the questions involved in the suit.
45. The power to strike out or add parties under Sub-rule (2) can be
exercised by the court on an application made by the parties before
it, or upon an application by a third party who desires to be added
as a party, or even suo motu. Explaining the object underlying
Order I Rule 10, this Court in Ramesh Hirachand Kundanmal v.
Municipal Corpn. of Greater Bombay reported in (1992) 2 SCC
524 observed thus:
"6. Sub-rule (2) of Rule 10 gives a wide discretion to the
Court to meet every case of defect of parties and is not
affected by the inaction of the plaintiff to bring the necessary
parties on record. The question of impleadment of a party
has to be decided on the touchstone of Order 1 Rule 10
which provides that only a necessary or a proper party
may be added. A necessary party is one without whom
no order can be made effectively. A proper party is one in
whose absence an effective order can be made but whose
presence is necessary for a complete and final decision
on the question involved in the proceeding. The addition
of parties is generally not a question of initial jurisdiction
of the Court but of a judicial discretion which has to be
exercised in view of all the facts and circumstances of a
particular case.
xxx xxx xxx
8. The case really turns on the true construction of the rule
in particular the meaning of the words "whose presence
before the Court may be necessary in order to enable
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Sulthan Said Ibrahim v. Prakasan & Ors.
the Court effectually and completely to adjudicate upon
and settle all the questions involved in the suit". The
Court is empowered to join a person whose presence is
necessary for the prescribed purpose and cannot under
the rule direct the addition of a person whose presence
is not necessary for that purpose. If the intervener has a
cause of action against the plaintiff relating to the subject
matter of the existing action, the Court has power to join
the intervener so as to give effect to the primary object of
the order which is to avoid multiplicity of actions.
xxx xxx xxx
10. The power of the Court to add parties under Order 1
Rule 10, CPC, came up for consideration before this Court
in Razia Begum [1959 SCR 1111 : AIR 1958 SC 886]. In
that case it was pointed out that the courts in India have
not treated the matter of addition of parties as raising any
question of the initial jurisdiction of the Court and that it is
firmly established as a result of judicial decisions that in
order that a person may be added as a party to a suit, he
should have a direct interest in the subject matter of the
litigation whether it be the questions relating to movable
or immovable property.
xxx xxx xxx
14. It cannot be said that the main object of the rule is to
prevent multiplicity of actions though it may incidentally
have that effect. But that appears to be a desirable
consequence of the rule rather than its main objective.
The person to be joined must be one whose presence is
necessary as a party. What makes a person a necessary
party is not merely that he has relevant evidence to give
on some of the questions involved; that would only make
him a necessary witness. It is not merely that he has an
interest in the correct solution of some question involved
and has thought of relevant arguments to advance. The
only reason which makes it necessary to make a person
a party to an action is so that he should be bound by
the result of the action and the question to be settled,
therefore, must be a question in the action which cannot
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be effectually and completely settled unless he is a party.
The line has been drawn on a wider construction of the
rule between the direct interest or the legal interest and
commercial interest. It is, therefore, necessary that the
person must be directly or legally interested in the action in
the answer, i.e., he can say that the litigation may lead to
a result which will affect him legally that is by curtailing his
legal rights. It is difficult to say that the rule contemplates
joining as a defendant a person whose only object is to
prosecute his own cause of action. Similar provision was
considered in Amon v. Raphael Tuck & Sons Ltd. [(1956)
1 All ER 273 : (1956) 1 QB 357], wherein after quoting
the observations of Wynn-Parry, J. in Dollfus Mieg et
Compagnie S.A. v. Bank of England [(1950) 2 All ER 605,
611], that their true test lies not so much in an analysis
of what are the constituents of the applicants' rights, but
rather in what would be the result on the subject matter of
the action if those rights could be established, Devlin, J.
has stated:
"The test is 'May the order for which the plaintiff is asking
directly affect the intervener in the enjoyment of his legal
rights'.""
(Emphasis supplied)
46. In the present case, the appellant, along with other legal heirs of the
original defendant came to be impleaded in the execution proceedings
before the Trial Court as the original defendant passed away during
the pendency of the execution proceedings. Impleadment of the
legal heirs of a defendant who passes away during the pendency
of suit proceedings is governed by Order XXII Rule 4. The same
reads as under:
"4. Procedure in case of death of one of several
defentlants or of sole defendant.-
(1) Where one of two or more defendants dies and the right
to sue does not survive against the surviving defendant
or defendants alone or a sole defendant or sole surviving
defendant dies and the right to sue survives, the Court, on
an application made in that behalf, shall cause the legal
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Sulthan Said Ibrahim v.