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2002 DIGILAW 1177 (PNJ)

Balbir Singh v. Anokh Singh

2002-11-11

M.M.KUMAR

body2002
Judgment M.M.Kumar, J. 1. Challenge in this petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity the Code) is to the order dated 24.1.2000 passed by the Civil Judge (Junior Division), Patiala, dismissing the application of the petitioners in which prayer for impleading them as party defendants under Order 1 Rule 10 of the Code was declined. 2. Facts necessary to decide the controversy raised in the present petition are that plaintiff-respondent No. 1 filed Civil Suit No. 507 dated 4.4.1998 against defendant respondent Nos. 2 and 3 for specific performance of the agreement to sell executed between them on 24.6.1997 in respect of the suit land. Plaintiff-respondent No. 1 alleged in his suit that defendant-respondents are the owners of the suit land and in that capacity they entered into agreement to sell which was executed on 24.6.1997. The sale price of suit land was fixed at Rs. 1,25,000/- per killa and the sale deed was to be executed on or before 1.12.1997. Defendant-respondent Nos,2 and 3 contested the suit by filing their written statement. During the pendency of the suit, the petitioners filed an application under Order 1 Rule 10 of the Code with the averments that defendant-respondent Nos,2 and 3 had entered into an agreement with their father (predecessor in interest) on 1.1.1998 to sell the suit land and had also received a sum of Rs. 1,50,000/- as earnest money. It was further alleged that on 16.4.1998 defendant-respondent Nos,2 and 3 had executed the sale deed in favour of the petitioners with the consent of their father Bakhshish Singh. On account of the interim order of stay issued on 7,4.1998 by the Civil Judge, the sale deed was not registered. It was further averred that the total sale consideration of Rs. 4,70,000/- had been paid to the defendant-respondent Nos.2 and 3. The application under Order I Rule 10 of the Code filed by the petitioners has been dismissed by the Civil Judge on the following grounds: a) That plaintiff-respondent No. 1 was master of his suit and no one can become party against his wishes; b) the petitioners were not party to the agreement to sell dated 24.6.1997 entered into between plaintiff-respondent No. 1 and defendant-respondent Nos. 2 and 3; c) that no relief has been sought by plaintiff-respondent No. 1 against the rights or liabilities of the petitioners and d) that the petitioners are entitled to file a separate suit, if so desired. 3. Shri Arihant Jain, learned counsel for the petitioners has argued that agreement to sell dated 1.1.1998 executed between the petitioners and defendant-respondent Nos.2 and 3 alongwith the sale deed executed on 16.4.1998 has created a proprietary interest in favour of the petitioners and, therefore, the petitioners are necessary and proper parties, The learned counsel has further argued that it would be unjust to permit defendant-respondent Nos,2 and 3 to pocket the earnest money paid by plaintiff-respondent No. 1 as well as the total sale consideration of Rs. 4,70,000/- paid by the petitioners. Defendant respondent Nos. 2 and 3 cannot be permitted to deceive the petitioners by grabing the whole money. 4. Shri Arihant Jain has further pointed out that once defendant-respondent Nos.2 and 3 have executed sale deed in their favour they would not even be able to file a separate suit as has been erroneously observed by the Civil Judge because there would be no lis between the petitioners and defendant-respondent Nos.2 and 3. In support of his submission, the learned counsel has placed reliance on two judgments of this Court in the cases of Satish Kumar v. Gurbir Singh Ghnkan and Ors., (2001-1)127 P.L.R. 367 and Mohinder Kaur and Anr. v. Jai Gobinda Enterprises and Ors., (2001-2)128 P.L.R. 555. 5. Shri Vijay Sharma, learned counsel for plaintiff-respondent No. 1 has vehemently argued that defendant respondent Nos.2 and 3 are in connivance with the petitioners and they are bent upon defeating the rights of the plaintiff-respondent No. 1 by pleading that during the pendency of the suit the sale deed has been executed by defendant respondent Nos. 2 and 3 in favour of the petitioners. According to the learned counsel in the written statement filed by defendant respondent Nos.2 and 3 not a word has been mentioned with regard to agreement to sell dated 1.1.1998 allegedly executed between the petitioners and defendant respondent Nos. 2 and 3 or that the sale deed was executed between them on 16.4.1998, He further points out that absence of plea by the defendant respondent Nos. 2 and 3 or that the sale deed was executed between them on 16.4.1998, He further points out that absence of plea by the defendant respondent Nos. 2 and 3 would indicate that agreement to sell dated 1.1.1998 has been anti dated and the sale deed has been prepared after filing of the suit. The learned counsel then argued that his rights would be adversely effected because impleadment of the petitioners would result into delay of the proceedings in the suit which is pending since 1998. 6. After hearing the learned counsel for the parties. I have reached the conclusion that the Civil Judge has committed grave error in law by rejecting the application of the petitioners for their impleadment as party defendants. It is evident from the reading of the impugned order that no finding has been recorded by the Civil Judge as to whether the petitioners are necessary and proper parties for adjudication of the dispute raised in the suit filed by the plaintiff-respondent No. 1, Recording of such a finding is a sine qua non to dispose of the application filed under Order 1 Rule 10 of the Code. It is well known that a vendor like defendant respondent Nos. 2 and 3 after selling the property subsequently to another person completely loose interest in defending the suit. The principles of lis-pendence would also not be attracted to the facts of the present case. Agreement to sell was allegedly executed on 1.1.1998 and the suit by the plaintiff-respondents was filed on 4.4.1998. Presuming that the principles of lis pendence are applicable there is no absolute rule of law that in such a case the subsequent transferee cannot become party to a litigation pending between the vendor of the same property and another person. This question came up for consideration before the Supreme Court in the case of Savitri Devi v. District Judge, Gorakhpur, (1999)2 S.C.C. 577. The observations of their Lordships on this aspect read as under: "The plea raised by respondents 3 to 5 that they were bona fide transferees for value in good faith may have to be decided before it can be held that the sales in their favour created no interest in the property. The aforesaid questions have to be decided by the Court either in the suit or in the application filed by respondents 3 to 5 for impleadment in the suit. The aforesaid questions have to be decided by the Court either in the suit or in the application filed by respondents 3 to 5 for impleadment in the suit. If the application for impleadment is thrown out without a decision on the aforesaid questions, respondents 3 to 5 will certainly come up with a separate suit to enforce their alleged rights which means a multiplicity of proceedings. In such circumstances, it cannot be said that respondents 3 to 5 are neither necessary nor proper parties to the suit." 7. The principles enunciated by the Supreme Court would fully apply to the facts of the present case. The petitioners may avoid initiation of legal proceedings against plaintiff-respondent No. 1 and defendant respondent Nos.2 and 3 if they are allowed to become party defendants in the suit from which the present petition has arisen. It would satisfy the requirement of general policy of avoiding municipality of litigation. The petitioners are even otherwise necessary and proper parties as without their presence the rights of plaintiff-respondent No. 1 in relation to the property in dispute belonging to defendant respondent Nos.2 and 3 cannot be effectively determined. 8. The argument of Shri Vijay Sharma, learned counsel for plaintiff-respondent No. 1 that petitioners and defendant respondent Nos.2 and 3 are conniving with one and another with malicious intention of defeating the rights of the plaintiff-respondent would not require a serious consideration at this stage when the petitioners are to be impleaded as parties. The questions whether there is connivance or the agreement to sell dated 1.1.1998 is anti dated or other related question are to be determined by the Civil Judge in the suit and plaintiff-respondent No. 1 shall be entitled to raise all these pleas there. 9. For the reasons recorded above, this petition succeeds and the same is allowed. The order dated 24.1.2000 passed by the Civil Judge is set aside. The petitioners are held to be necessary and proper parties for adjudication of Civil Suit No. 507 dated 4.4.1998. The application filed by the petitioners under Order 1 Rule 10 pf the Code before the Civil Judge stands allowed.