VEDAVATHI Vs. ROHINI BAI

JUDGEMENT

(1.) THOUGH the issues involved in these two civil revision petitions centre around the simple question as to whether the petitioner-wife should be impleaded in the suit that has been filed against her husband for specific performance after the grant of an amendment to that effect, the competence with which the issues concerned have been debated has given rise to perhaps a new facet of law that has hitherto not been highlighted in situations of this type. Undoubtedly, the principles relating to situations in which amendments can be granted or occasions on which a party who applies for being added on to a legal proceeding should either been impleaded or not are by and large well-crystallised, there is always scope for an added dimension or angle when sufficient and deep thought is bestowed on the controversy in question. The facts are quite simple in so far as the first respondent field a suit against the 2nd respondent for specific performance in respect of an agreement to sell. The case of the plaintiff was that the defendant-husband had agreed to sell the premises to her under an agreement to sell and that he has not thereafter performed his obligations by completing the sale and that therefore, she is entitled for a decree of specific performance. It is of some consequence for me to mention that the suit premises are one in which the plaintiff is running a hotel. The written statement was filed wherein 'the plea of the defendant was that he has not entered into the agreement in question or in other words, it is a defence of denial. The evidence started and after taking several adjournments, an application was made by the defendant-husband for amendment of his written statement and correspondingly an application was made by the wife for being impleaded. The grounds are common in so far as it was contended that the husband has no absolute right to alienate the property even though it constitutes that part of the family property which came to his share, because the wife contended that as the spouse, she has certain subsisting rights which according to her specifically included the right to residence and maintenance and that consequently, the husband could not have entered into an. agreement to sell. Effectively, it is some sort of a challenge with regard to the basic right to alienate as also a case where the party sets up some interest in the property in dispute. The learned trial judge after considering the objections raised by the plaintiff who basically contended that the application is not maintainable because a fresh and entirely new case is being set up and more importantly, that this is a stand that is very different to the original defence that was pleaded, as also the ground that the defendant-wife was not a necessary party and finally, the trial court passed an order rejecting both the applications. These two civil revision petitions assail the orders in question. They have been heard together and the two learned counsel have argued the matter with a considerable difficulty of incisiveness.

(2.) SRI shankar, learned counsel who appears on behalf of the petitioner has submitted that his challenge to the order is very well-defined in so far as in the first instance the applicant who is asking for impleading is not in the category of a traditional third party but happens to be very closely connected with the defendant in so far as she is the spouse. His submission is that the trial court overlooked the significance of the grounds set-out in support of the two applications and he contended that the property in question is effectively a family asset and ipso facto therefore, the wife can at all times claim to have a valid and genuine interest in that property. He submits that in this case, the couple have no children and that in the unlikely event of the husband's demise, that the applicant-wife would have to virtually fall back on whatever real assets or property she has and that therefore, the plea put forward by her is a very genuine one. He also demonstrates to me that the wife has very specifically contended that the husband had unfortunately got into the company of persons whose intentions were not too good and that it was they who induced him to enter into all sorts of transactions which would virtually have the effect of divesting them of whatever little property and assets they have and the contention was that in this background, she as the wife desires to attack the validity of the original transaction. Sri shankar submitted that in this background, two things have been demonstrated firstly, that it is necessary for the court to examine these aspects of the matter because they are intricately connected with the validity of the original agreement to sell which is in dispute and secondly, that the party who desires to join the litigation has a very deep seated interest and will undoubtedly be seriously affected by the outcome of the litigation and that therefore, having regard to the principles that are now well-settled, the trial court ought to have granted both the applications. Sri shankar has anticipated the argument of the other side when he submitted that the plea which is now taken is undoubtedly different to the original one set-out in the written statement but it is his submission that if the law of pleadings permits the parties to take up inconsistent pleas, that then this is perfectly legitimate. For this purpose, he relied on a recent decision of the supreme court in the case of G. Nagamma and another v Siromanamma and another, wherein the Supreme Court did observe that in a given situation it would be permissible even for the plaintiff to take up inconsistent pleas. Learned counsel therefore submitted that the nature of the defence which is now pleaded cannot stand in his way as far as the granting of the application is concerned. As regards the original contentions which have been taken in the written statement which cannot now either get dilated or would to some extent be withdrawn if the applications were to be granted, the learned counsel relied on another decision of the Supreme Court in the case of Panchdeo Narain Srivastava v Kumari Jyoti Sahay and another, wherein, the Supreme Court was dealing with an amendment application and the Supreme Court held that in the overall interest of Justice it is not impermissible to allow even an admission to be withdrawn. In sum and substance, learned counsel therefore submitted that both on facts and in law he has made out a case for the grant of the two applications.

(3.) SRI shetty, learned counsel who represents the respondent original plaintiff has vehemently opposed the grant of any relief. In the first instance, he submitted that the Supreme Court as early as in the case of Haridas Aildas Thadani and others v Godrej Rustom Kermani, while dealing with interference with permission to amend that had been granted by trial court had occasion to observe that where a discretion has been validly exercised, interference in exercise of revisional powers is uncalled-for. His first submission was that the application has come at a belated stage and secondly, that the wife was neither a proper party or for that matter a necessary party and thirdly on facts he submits, that the plea with regard to right of residence is down right false because the premises are not residential premises and as regards the question of right of maintenance, his submission is that there are no legal or other proceedings pending inter se between the parties nor is this property the subject-matter of an order in any such proceeding and that therefore, this plea is absolutely illusory. Even as regards the challenge to the right to alienate, Sri shetty submits that there is no dispute at all about the fact that the defendant is the full and absolute owner of that property and that the so called rights which the wife is referring to, are not only unreal but are legally unenforceable. Having pointed out these aspects, the learned counsel submitted that the trial court which is the best judge of the matter in such situations has validity exercised its discretion and held that this is not a case in which the applications should be granted and that in the absence of being able to show that the order is legally valid or for that matter perverse, that no interference is called for by this court. As far as the scope of interference is concerned, I only need to observe that this court did consider that the case requires a second look which was why it was admitted and the debate that has subsequently ensued in the course of the hearing would require that this court must carefully examine both the facts but more importantly, the law on the point and if it is demonstrated that the trial court has erred in law, then the scope for interference would still arise. It is not only in cases where an order is perverse but there could be cases where the court has in good faith arrived at a decision which is inherently unsustainable in law and such a decision would still be revisable in a proceeding of the present type.