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2014 DIGILAW 1405 (PNJ)

Narinder Singh v. Tarsem Singh

2014-10-09

R.P.NAGRATH

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JUDGMENT : R.P. Nagrath, J. 1. The petitioner has filed the instant revision under Article 227 of the Constitution of India to challenge the order dated 09.07.2014 (Annexure P-1) passed by the trial Court. Respondent No. 1 filed Civil Suit No. 200 dated 13.12.2013 against respondent No. 2 for specific performance of agreement to sell dated 14.09.2012 in respect of land measuring 20 kanals 14 marlas for a consideration of Rs. 24,50,000/- and having received an amount of Rs. 12 lacs as part of the consideration. The sale deed was to be executed by 20.12.2012. Respondent No. 2 is stated to have committed breach of the terms of agreement necessitating filing of the suit. The petitioner moved an application dated 19.12.2013 under Order 1 Rule 10 of the Code of Civil Procedure for impleading him as a necessary defendant which has been declined vide impugned order dated 09.072014 (Annexure P-1). 2. I have heard learned counsel for the petitioner and gone through the impugned order and the paper-book. 3. Respondent No. 1-plaintiff took up objections that if there is any agreement to sell in his favour he can avail of the remedy for specific performance of the agreement but cannot intervene in the suit filed by him. 4. Learned counsel for the petitioner relied upon Sumtibai and Others Vs. Paras Finance Co. Regd. Partnership Firm Beawer (Raj.) Thru Smt. Mankanwar Chordia (Dead) and Others, (2007) 10 SCC 82 , in which Hon'ble Supreme Court held that it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in the suit. If C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced. 5. The principle laid down in Sumtibai's case (supra) is not at all applicable to the facts of the present case. Clearly, such a view cannot be countenanced. 5. The principle laid down in Sumtibai's case (supra) is not at all applicable to the facts of the present case. There an agreement was executed by Kapoor Chand but it was the plea of the petitioner before Hon'ble Supreme Court that as a matter of fact Kapoor Chand was not the sole owner of the property sought to be sold. The sale deed was in favour of Kapoor Chand and his sons who wanted to be impleaded as parties. 6. In the instant case, however, the applicant has only an agreement to sell and that agreement is stated to be executed about two months before the agreement set up by respondent No. 1. Mere agreement to sell does not create any interest in the petitioner for enabling him to intrude in a suit filed by respondent No. 1. Even if he is impleaded as party he will not be able to raise any counter claim as the same is not maintainable against the codefendant. If that be the position, his impleading as defendant in the case would be absolutely foreign to the issues involved in the suit. The applicant can set up a claim only by a suit for specific performance by impleading respondent No. 1 as a co-defendant as rightly observed by learned trial Court. 7. In order to explain why despite such an observation by the trial court, the suit for specific performance has not been filed, learned counsel for the petitioner handed over a writing dated 01.07.2013, purporting to extend the period of execution of the sale deed on the strength of the agreement dated 09.07.2012 upto 04.07.2016, i.e. for a period of about 3 years. That document be placed on record. Even despite aforesaid document, petitioner cannot intrude the suit between the respondents inter se. Rather such an instrument extending the period of execution of the sale deed for three years may suggest mala-fides on the part of the petitioner or the defendant-respondent No. 2 but no positive observation about the genuineness of the transaction between the petitioner and respondent No. 2 is basically required while disposing of the instant petition. It was not even the case of the petitioner that under the aforesaid agreement part of the sale consideration was paid by cheque or bank draft. 8. It was not even the case of the petitioner that under the aforesaid agreement part of the sale consideration was paid by cheque or bank draft. 8. Learned trial Court relied upon the judgment of this Court Darbara Singh Vs. Chamkaur Singh and Others, (2013) 169 PLR 841, in which this Court held as under:- "4. The learned counsel refers to me a judgment of the Supreme Court in Sumtibai and Others Vs. Paras Finance Co. Regd. Partnership Firm Beawer (Raj.) Thru Smt. Mankanwar Chordia (Dead) and Others (supra) to contend that a third party could be impleaded in a suit for specific performance where the said party shows similar title of interest. An agreement creates no title in property except equitable rights of enforcement. The judgment cannot be applied in a situation where there is not even a claim to title is made but merely an agreement is set up. In any event, there is a considerable body of authority to the effect that in a suit for specific performance, the issue of title is irrelevant. The dismissal of the application for impleadment by the Court below is, therefore, perfectly in order and there could be no intervention in revision." 9. The principle laid down by Hon'ble Supreme Court in Kasturi Vs. Iyyamperumal and Others, (2005) 6 SCC 733 , would be squarely applicable to the facts of this case. Hon'ble Supreme Court held in that case that in a suit for specific performance of a contract for sale of property a stranger or third party to the contract, cannot be added as defendant in the suit. I do not find any merit in the instant petition and the same is dismissed.