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2011 DIGILAW 1004 (PNJ)

Satpal Singh v. Vinod Kumar Chawla

2011-04-06

RAM CHAND GUPTA

body2011
JUDGMENT Mr. Ram Chand Gupta, J.:- This order will dispose of both the aforementioned revision petitions filed under Article 227 of the Constitution of India as the same have arisen out of same order dated 17.11.2010, vide which application filed by respondent-Kulbir Singh, for impleading him as a party in the suit, under Order 1 Rule 10 of the Code of Civil Procedure (hereinafter to be referred as ‘the Code’) has been accepted. For the sake of convenience the facts are being taken from Civil Revision No.8335 of 2010. 2. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court. 3. Facts relevant for the decision of present revision petitions are that present revision petitioners-defendants no.1 to 3 entered into an agreement to sell the land in dispute owned by them with respondent no.1- plaintiff-Vinod Kumar Chawla and respondent no.7-Ashok Kumar Madan on 13.11.2006 and pursuant to the said agreement to sell, the present suit for specific performance of the said agreement was filed by respondent no.1- plaintiff against the present petitioners. Petitioners also executed sale deed dated 15.5.2007 with regard to 2-1/2 acres of land in favour of Jaspreet Kaur, respondent no.6-defendant no.7, as per request of respondents no.1 and 7. Suit for specific performance was filed regarding the remaining land. On notice being received by present petitioners, they appeared and one of the petitioners, namely, Satpal Singh suffered statement for himself as well as for petitioners no.2 and 3, as their attorney, admitting the factum of execution of agreement to sell and receipt of earnest money. He also offered to get the sale deed registered after receipt of remaining sale consideration, as per the agreement. However, one of the vendees, namely, Ashok Kumar Madan, respondent no.7, made statement, Annexure P6, that he was not having sufficient means and hence, he was not ready to comply with the terms and conditions of agreement to sell dated 13.11.2006. He also offered to get the sale deed registered after receipt of remaining sale consideration, as per the agreement. However, one of the vendees, namely, Ashok Kumar Madan, respondent no.7, made statement, Annexure P6, that he was not having sufficient means and hence, he was not ready to comply with the terms and conditions of agreement to sell dated 13.11.2006. During pendency of the said suit, the present application under Order 1 Rule 10 of the Code was filed by respondent no.2-applicant Kulbir Singh for impleading him as a party on the plea that respondent no.1-plaintiff and respondent no.7- Ashok Kumar Madan had further entered into an agreement to sell the land in dispute in his favour on 1.12.2006 on some higher rate and hence, he is necessary party to be impleaded. The said application was contested by present petitioners as well as by respondent no.1-plaintiff. Respondent no.1-plaintiff has denied the very execution of the said agreement and had taken the plea that the same is a result of fraud and forgery. 4. The application was allowed by learned trial Court vide impugned order by observing that as subsequently an agreement to sell is executed in his favour by respondent no.1-plaintiff and respondent no.7, he has become a necessary party. 5. It has been contended by learned counsel for the petitioners that in view of their statements, suit filed by respondent no.1-plaintiff should have been decreed by learned trial Court and that if there is any contest regarding any alleged agreement to sell executed by respondent no.1- plaintiff and respondent no.7 in favour of respondent no.2-applicant, petitioners cannot be compelled to be a party to the said contest. It is further contended that respondent no.2-applicant Kulbir Singh is a third party to the agreement to sell executed between present petitioners and respondents no.1 and 7, and hence, he is not at all a necessary party and if he is having any claim against respondents no.1 and 7, he may institute separate proceedings against them. 6. It has been contended by learned counsel for respondent no.1- plaintiff, who is also petitioner in Civil Revision No.1394 of 2011, that no such agreement was executed by him in favour of respondent no.2-applicant Kulbir Singh and that he has not sought any relief against him and hence, he cannot be compelled to implead him as a party in this suit. 7. 7. Law is well settled by Hon’ble Apex Court in Bharat Karsondas Thakkar v. M/s Kiran Construction Co. and others, [2008(5) Law Herald (SC) 3067] : 2008(3) RCR (Civil) 57: 2008(3) RAJ 280: 2008(2) CivCC 561: 2008 AIR (SC) 2134: 2008(5) JT 356 that in a suit for specific performance of contract, a third party or a stranger to the contract could not be added so as to convert a suit of one character into a suit of a different character. The relevant paragraph of the same reads as under:- “23. In our view, the decision of this Court in Durga Prasad’s case (supra), cannot be brought to the aid of the case made out by respondent No.1. Furthermore, the Division Bench of the High Court also appears to have committed an error in observing that the decision in Anil Kumar Singh’s case (supra) was not applicable to the facts of this case, despite the fact that on a consideration of the provisions of Order 1 Rule 10 and Order 22 Rule 10 of the Code, this Court held that since the plaintiff in the said matter was merely seeking the specific performance of an agreement of sale, any attempt to implead a third party to the contract in the suit would be hit by the provisions of Section 15(a) of the Specific Relief Act, 1963. In fact, in Anil Kumar Singh’s case (supra) in a suit for specific performance, the respondent, who was not a party to the contract but wanted to be impleaded as a defendant on the ground that he had acquired subsequent interest as a co-owner by virtue of a decree obtained from the court, was held not entitled to be joined as defendant either under Order 1 Rule 3 or under Order 1 Rule 10(ii) of the Code having regard to the provisions of Sections 15 and 6 of the Specific Relief Act, 1963.” Moreover each case is to be decided on the peculiar facts of the case. Hence, in view of the peculiar facts of this case, this Court is to see as to whether applicant is a necessary party to be impleaded for the purpose of adjudication of the controversy between the parties. 8. Hence, in view of the peculiar facts of this case, this Court is to see as to whether applicant is a necessary party to be impleaded for the purpose of adjudication of the controversy between the parties. 8. It is pertinent to reproduce Order 1 Rule 10 of the Code, which reads as under:- “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. (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 Indian Limitation Act, 1877 (15 of 1877), Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.” There is no dispute that present respondent no.2-applicant Kirpal Singh is not a party to the agreement executed between petitioners on the one hand and respondent no.1-plaintiff and respondent no.7 on the other hand. Even after execution of the main agreement to sell, no right has been vested in the applicant in the property in dispute. No sale deed has been executed in favour of original vendees, i.e., respondent no.1-plaintiff and respondent no.7 by the present petitioners. No sale deed has been executed by present petitioners-defendants in favour of applicant. Applicant has taken the plea that an agreement to sell has been executed in his favour by respondent no.1-plaintiff and respondent no.7, in whose favour agreement was earlier executed by the present petitioners, however, the subsequent agreement is denied by respondent no.1-plaintiff. Present petitioners-defendants have admitted the execution of the agreement to sell and have made a statement that they are ready to get the sale-deed executed as per the said agreement. Hence, in view of the said statement of present petitioners-defendants, they cannot be compelled to be a party to the decision of the dispute on the basis of subsequent agreement allegedly executed between respondent no.1-plaintiff and respondent no.7 and the applicant. Hence, in view of these facts, it cannot be said that respondent no.2-applicant Kirpal Singh is a necessary party to be impleaded in the present suit. 9. Hence, in view of the above discussion, I am of the view that learned trial Court has committed illegality and material irregularity in allowing the application filed by respondent no.2-applicant Kirpal Singh for impleading him as a party in the present suit. 10. In view of the aforementioned facts, both the revision petitions are accepted. 9. Hence, in view of the above discussion, I am of the view that learned trial Court has committed illegality and material irregularity in allowing the application filed by respondent no.2-applicant Kirpal Singh for impleading him as a party in the present suit. 10. In view of the aforementioned facts, both the revision petitions are accepted. Impugned order is set aside and as a consequence thereof, application filed by respondent no.2-applicant Kirpal Singh for impleading him as a party in the suit stands dismissed. ------------0.S.L.0------------