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2015 DIGILAW 1495 (JHR)

Shambhu Sharan Singh v. Sushma Baliase

2015-12-03

SHREE CHANDRASHEKHAR

body2015
ORDER : Inspite of service of notice through publication, the respondent no. 2 has not appeared in the present proceeding. The respondent no. 1 is represented through Mr. Prashant Pallav, Advocate. 2. Aggrieved by order dated 02.08.2012 in Title Suit No. 24 of 2007 whereby, application under Order 1 Rule 10 CPC seeking impleadment of the petitioners in the suit has been rejected, the present writ petition has been filed. 3. Title Suit No. 24 of 2007 was instituted by the respondent no. 1 for specific performance of contract with respondent no.2. The suit was instituted on 21.02.2007. The petitioners claim purchase of the suit land through registered sale-deed dated 08.03.2008. The petitioners made payment to the defendant through demand draft dated 09.02.2007, 10.02.2007 and 14.02.2007. The suit property is comprised in Plot No. 560 appertaining to J.B. No. 3042. The petitioners claim possession over the suit property. 4. Mr. Rahul Gupta, the learned counsel for the petitioners submits that the petitioners have a valid right, title and interest in the suit property and therefore, to avoid multiplicity of litigation and for an effective adjudication of the dispute between the parties, the petitioners should be impleaded as defendants in the pending title suit. It is submitted that respondent no. 2(defendant) after receiving sale consideration for the suit property from the petitioner has lost interest in the suit and the suit is not contested by respondent no. 2 diligently. It is further submitted that the plaintiff had knowledge of the execution of sale-deed by the respondent no. 2 however, she did not implead the petitioners as party defendants in the suit. 5. Supporting the impugned order dated 02.08.2012, Mr. Prashant Pallav, the learned counsel for the respondent no. 1 submits that there is no privity of contract between the respondent no. 1 and the petitioners. The petitioners are strangers to the contract between respondent no. 1 and respondent no. 2 and therefore, they have no legal right to intervene in the pending suit. Moreover, the petitioners are purchasers from the defendant and thus, the transaction would be regulated under Section 52 of the Transfer of Property Act, 1882. 6. From the materials brought on record, it is apparent that the agreement between the petitioners and the respondent no. 2 was prior to institution of the suit. Moreover, the petitioners are purchasers from the defendant and thus, the transaction would be regulated under Section 52 of the Transfer of Property Act, 1882. 6. From the materials brought on record, it is apparent that the agreement between the petitioners and the respondent no. 2 was prior to institution of the suit. The petitioners claim to have made payment for land comprised in sale-deed dated 08.03.2008 through different demand drafts, all prepared prior to institution of Title Suit No. 24 of 2007. The plaintiff has claimed that though respondent no. 2 executed sale-deed for a part of the plot, it refused to execute sale-deed for the remaining part of the land which necessitated filing of Title Suit No. 24 of 2007. Insofar as, contention based on Section 52 of Transfer of Property Act, is concerned, no doubt, the petitioners would be bound by the decision in the suit and they can claim a right through defendant only. In a suit for specific performance of the contract, it is well settled that a purchaser normally should be impleaded. The issue whether a purchaser should be impleaded as party in a suit for specific performance in which he has interest in immovable property, is no more res integra. In “Saila Bala Dassi Vs. Nirmala Sundari Dassi and another”, reported in AIR 1958 SC 394 , it has been observed that, “a pendente lite purchaser should be given an opportunity to protect his rights”. In “Amit Kumar Shaw and another Vs. Farida Khatoon and another”, reported in (2005) 11 SCC 403 , the Hon'ble Supreme Court has observed that, “A transferee pendente lite can be added as party if his interest in the subject matter of the suit is substantial and not just peripheral”. The aforesaid view has been reiterated in “Thomson Press (India) Limited Vs. Nanak Builders & Investors Private Limited and Others” reported in (2013) 5 SCC 397 . 7. It appears that the plaintiff herself exhibited the sale-deed executed by the defendant in favour of the petitioners. Moreover, I find that the application under Order I Rule 10 CPC has been rejected only on the ground of delay. 8. Nanak Builders & Investors Private Limited and Others” reported in (2013) 5 SCC 397 . 7. It appears that the plaintiff herself exhibited the sale-deed executed by the defendant in favour of the petitioners. Moreover, I find that the application under Order I Rule 10 CPC has been rejected only on the ground of delay. 8. Considering the fact that the petitioners have a valuable interest involved in the pending suit and the fact that presence of the petitioners is necessary for an effective adjudication, I am of the opinion that the impugned order dated 02.08.2012 suffers from serious infirmity in law and accordingly, it is setaside. The application dated 14.03.2011 under Order I Rule 10 CPC stands allowed. The petitioners are impleaded as party defendants in Title Suit No. 24 of 2007. However, considering the fact that the parties to the suit have already closed their evidence, the petitioners/newly added defendants would be permitted to lead evidence only to the extent to prove agreement, execution of sale-deed and payment by them to the respondent no. 2. The writ petition stands allowed, in the above terms. I.A. No. 6176 of 2014 stands disposed of.