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2012 DIGILAW 881 (PAT)

Mod Narayan Jha v. Kameshwar Jha

2012-06-27

JYOTI SARAN

body2012
ORDER 1. Heard Mr. Kali Kant Jha, learned counsel appearing on behalf of the intervener-petitioner and Mr. Pramod Kumar Sinha, learned counsel appearing on behalf of the plaintiff-respondents. 2. CWJC No.5840 of 2012 has been filed for quashing the order dated 17.11.2008 passed by the learned Sub-Judge 1st, Darbhanga in Title Suit No.76 of 2006 rejecting the application filed on behalf of the intervener-petitioner under Order-1, rule 10(2) read with section 151 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) seeking impleadment in the suit proceedings. 3. The other writ petition bearing CWJC No.9553 of 2011 was filed for quashing the order whereby the petition filed by the intervener petitioner herein seeking recall of the order dated 17.11.2008 was rejected by the learned Sub-Judge 1st, Darbhanga in Title Suit No. 76 of 2006 vide order passed on 07.05.2009. 4. The facts of the case is in very narrow compass. The suit was filed by the father of plaintiff-respondents herein, late Kameshwar Jha seeking specific performance of agreement to sale to be executed by the brother of the intervener-petitioner herein, namely, Batahu Jha on 29.06.2002. During the course of the present proceedings the copy of the plaint was produced by learned counsel appearing on behalf of the respondents who are substituted legal heirs of the original plaintiff, late Kameshwar Jha. The relief sought in the suit proceedings as set in paragraph 21 of the plaint runs as follows:- (A) That on adjudication of the facts stated above, a decree for specific performance of contract be passed directing the defendant to execute the sale deed in favour of plaintiff in respect of Schedule-I land within a time stipulated by this court after receiving of the balance consideration money of Rs.35,000/-. (B) That if the defendant failed to execute the sale deed then sale deed be executed through the process of the court after taking deposit the balance consideration money in court treasury in the name of plaintiff in respect of Schedule-I. (C) That the delivery of possession over the suit land be given to the plaintiff through the process of the suit. (D) That the cost of the suit be awarded to the plaintiff. (E) That any other relief or reliefs for which the plaintiff be deemed entitle be given to the plaintiff. 5. (D) That the cost of the suit be awarded to the plaintiff. (E) That any other relief or reliefs for which the plaintiff be deemed entitle be given to the plaintiff. 5. It was the specific case of the original plaintiff-respondent that Batahu Jha, brother of the present petitioner having executed an agreement to sale on 29.06.2002, having accepted part payment of the consideration amount and having agreed to execute the sale-deed on or before 30.06.2003, has refused to perform his part of obligation, hence necessitating the filing of the suit. 6. The intervener-petitioner herein claiming to be the brother of Batahu Jha filed an application under Order 1, rule 10(2) of the Code upon gathering information about the suit in question for seeking impleadment in the same, inter alia, on the grounds that his brother Batahu Jha is traceless since 1967 and thus could not have executed the said Mahadanama which is the basis of the suit and that the property standing in exclusive name of the intervener-petitioner, he was required to be heard in opposition of the claim set out in the suit proceedings. The prayer of the petitioner was rejected by order dated 17.11.2008 impugned in CWJC No. 5840 of 2012, inter alia, on the ground that no document has been filed by the intervener-petitioner supporting his claim regarding Batahu Jha being traceless nor the original plaintiff-respondent herein was seeking any relief against the intervener-petitioner, hence there was no necessity to allow the prayer. The second application was filed on behalf of the intervener-petitioner on 20.12.2008 seeking review/ recall of the order dated 17.11.2008 which has since been rejected on 07.05.2009 impugned in CWJC No.9553 of 2011, inter alia, on the ground that no fresh material was brought by the intervener-petitioner herein warranting review/recall of the order dated 17.11.2008. 7. Mr. Jha, learned counsel appearing for the intervener-petitioner has submitted that it is the specific case of the intervener that his brother Batahu Jha stands traceless since 1967 and which fact is supported by the service report dated 06.02.2007 and 26.02.2007 furnished in a suit proceedings showing the defendant Batahu Jha traceless. 7. Mr. Jha, learned counsel appearing for the intervener-petitioner has submitted that it is the specific case of the intervener that his brother Batahu Jha stands traceless since 1967 and which fact is supported by the service report dated 06.02.2007 and 26.02.2007 furnished in a suit proceedings showing the defendant Batahu Jha traceless. It is stated that even when the defendant Batahu Jha was reported to be traceless, an appearance was sought to be filed in the suit proceedings through an Advocate Hari Kishore Choudhary and Ram Sukhit on 25.07.2007 who after taking time on two dates, i.e. on 24.08.2007 and 13.12.2007 for filing written statement did not choose to appear and as a consequence thereof the defendant Batahu Jha was debarred from filing written statement on 01.02.2008. 8. It is stated that the subject-matter of the Mahadanama in question, is registered in the name of the intervener-petitioner and in that view of the matter it could not have been transferred by said defendant Batahu Jha. He further submits that in order to prove the aforestated stand of the intervener-petitioner that the defendant Batahu Jha is traceless since 1967 and the property in question stands in the name of the present intervener-petitioner, he needs to be heard in the suit proceedings specially in the backdrop of relief No. (C) prayed in the suit proceedings seeking delivery of possession. 9. The prayer of the petitioner has been seriously contested by Mr. Sinha, learned counsel appearing on behalf of the plaintiff-respondents submitting that a contest in a suit for specific performance is between the vendor and purchaser and it is not the requirement of law that any third party need be heard. He thus submits that in view of the nature of the suit proceedings, the intervener-petitioner is not necessary party. 10. It is further submitted that it is yet to be proved that the property belongs in the name of the intervener-petitioner. He thus submits that in the aforesaid circumstances the prayer for impleadment is rightly rejected by the court below. 11. I have heard learned counsel appearing on behalf of the parties and have perused the materials on record including the relief prayed for in the suit proceedings. Undoubtedly there is no controversy in the submission of learned counsel appearing for the plaintiff-respondents that a suit for specific performance is a contest between the signatories to an agreement to sale. 11. I have heard learned counsel appearing on behalf of the parties and have perused the materials on record including the relief prayed for in the suit proceedings. Undoubtedly there is no controversy in the submission of learned counsel appearing for the plaintiff-respondents that a suit for specific performance is a contest between the signatories to an agreement to sale. The position becomes different when the property sought to be transferred is not within the possession of the purchaser or the title of the vendor is under a cloud. In the present case also, one of the reliefs prayed for in the suit proceeding is seeking delivery of possession. The moment the relief of delivery of possession is prayed in a suit, the party who is affected from such relief, has to be heard. It is the specific case of the intervener-petitioner that his brother who is said to have executed Mahadanama is traceless since 1967. It is the further case of the intervener-petitioner that the property is exclusive in his name. Either of the issues can only be proved if the intervener is provided opportunity to substantiate his claim. The effort of the court is to prevent multiplicity of litigation. Even otherwise the intervener-petitioner had right to question the claim of the plaintiff by filing a separate suit. Hence by prohibiting the appearance in the present proceeding, no fruitful purpose can be achieved. Further the law as to hearing a third party in a suit for specific performance has been well explained in the judgment rendered by the Hon’ble Supreme Court in the case of Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotels Private Limited & others, reported in AIR 2010 SC 3109 . The moment the third party is affected by the relief prayed for in a suit of specific performance he becomes necessary party to the suit. 12. For the reasons aforesaid, the orders impugned in the two writ petitions cannot be upheld and are accordingly quashed and set aside. 13. The writ petitions are allowed but without any order as to costs.