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2015 DIGILAW 1552 (JHR)

Ram Suresh Pandey v. Mukesh Kumar Pandey

2015-12-11

SHREE CHANDRASHEKHAR

body2015
ORDER : Aggrieved by order dated 21.02.2015 in Title Suit No. 271/2012 whereby, application under Order 1 Rule 10(2) CPC read with Section 151 CPC has been dismissed, the present writ petition has been filed. 2. The petitioners claiming an interest in the property comprised in Mouza No.51 within Dhanbad Municipality, which was the subject matter of the Development Agreement dated 03.01.2009 between Smt. Kanti Sinha and Sri Prithbi Nath Pandey as Owners and Bihari Lal Pansari with Ashok Kumar Pansari as Developer. The petitioners are the signatories of the Development Agreement dated 03.01.2009. Under the said agreement, owners' allocation as well as developer's allocation have been provided under the schedule mentioned therein. Subsequently, Title Suit No. 271/2012 was instituted by Mukesh Kumar Pandey and others against Behari Lal Pansari and Ashok Kuamr Pansari who are the developers seeking a decree for 40% share in the constructed area in Schedule 'B' in terms of the Development Agreement dated 03.01.2009 and a decree for compensation and mesne profit with damages. In the pending suit, the petitioners filed an application under Order 1 Rule 10(2) CPC seeking their impleadment on the ground that for complete and effective adjudication of their rights, their impleadment in the pending title suit is necessary. 3. Mr. Rahul Gupta, the learned counsel for the petitioners submits that the petitioners have been put in possession of 10% of the total constructed area and this fact has been asserted by the defendants in the written statement and therefore, to protect their rights, they sought their impleadment in the pending title suit. The suit property was the joint family property, though registered only in the name of Shri Prithbi Nath Pandey and this fact has been suppressed by the plaintiffs in the title suit. In reply to the legal notice issued by the defendants, the plaintiffs did not specifically controverted the allegation that the property under the Development Agreement dated 03.01.2009 is a joint family property. On these grounds, it is contended that the impleadment of the petitioners in the pending title suit would avoid conflicting judgments by two Courts besides avoiding multiplicity of the proceedings. It is contended that the plaintiffs are the proper party and on that count also they should be impleaded in Title Suit No. 271/2012. The learned counsel for the petitioners has relied on a decision in Sumtibai and Ors. Vs. Paras Finance Co. It is contended that the plaintiffs are the proper party and on that count also they should be impleaded in Title Suit No. 271/2012. The learned counsel for the petitioners has relied on a decision in Sumtibai and Ors. Vs. Paras Finance Co. and Ors. reported in (2007) 10 SCC 82 . 4. Per-Contra, Mr. R.S. Mazumdar, the learned Sr. counsel for the respondents submits that the petitioners are strangers to the Development Agreement dated 03.01.2009. There is no privity of contract between the petitioners and the parties, who are party to the Development Agreement dated 03.01.2009. Controverting the submissions raised on behalf of the petitioners that Title Suit No. 271/2012 is, in fact, a suit for specific performance of the Development Agreement dated 03.01.2009, the learned Sr. counsel submits that even though it is assumed, though not admitted, the petitioners not being a purchaser subsequent or prior to the institution of the suit, cannot claim their impledment in the title suit. In a suit for specific performance of contract, the stranger who has no legal right flowing from the documents such as sale-deed, cannot claim his impledment. 5. I have carefully considered the rival contentions raised on behalf of the parties and perused the documents on record. 6. Title Suit No. 271/2012 was instituted on the allegation that the developer has not delivered possession of the plaintiffs' share in terms of the Development Agreement dated 03.01.2009. The plaintiffs have sought a decree for 40% allocation of their share in constructed area in Schedule 'B' in terms of the Development Agreement dated 03.01.2009 and for compensation and damages on various counts besides, mesne profit. The plaintiffs have also sought a decree for permanent injunction against the defendants. The execution of the Development Agreement dated 03.01.2009 was within the knowledge of the petitioners and they are signatories to the Development Agreement dated 03.01.2009. The contention raised on behalf of the petitioners that the property comprised in the Development Agreement dated 03.01.2009 is a joint family property, prima facie, does not appear from the contents of the Development Agreement. The execution of the Development Agreement dated 03.01.2009 was within the knowledge of the petitioners and they are signatories to the Development Agreement dated 03.01.2009. The contention raised on behalf of the petitioners that the property comprised in the Development Agreement dated 03.01.2009 is a joint family property, prima facie, does not appear from the contents of the Development Agreement. Clause 9(g) of the Development Agreement dated 03.01.2009 records “that apart from the owners no one else is entitled to or has any share, right, title or interest in the said property or any part thereof either as partner or any partnership or copartner in any joint family or otherwise.” The learned counsel for the petitioners contends that witness to an agreement cannot necessarily be imputed with the knowledge of the contents of the agreement. The said contention is liable to be rejected. The petitioners who have claimed themselves co-sharers were having knowledge that the Development Agreement was executed with respect to the property in question. In application dated 27.06.2013 filed under Order 1 Rule 10(2) CPC, the petitioners claimed that the suit property is a joint family property and therefore, the petitioners cannot deny knowledge of the contents of Development Agreement dated 03.01.2009. Merely on a pretension that the petitioners have been put in possession of 10% of constructed area in Maa Bhawani Complex, the petitioners cannot contend that their impleadment is necessary for avoiding multiplicity of litigation. The petitioners have not asserted in application dated 27.06.2013 filed under Order 1 Rule 10(2) CPC how the alleged delivery of possession by the developer of 10% of constructed area in Maa Bhawani Apartment, was affected. As rightly contended by the learned Sr. counsel for the respondents, the petitioners are strangers to the Development Agreement dated 03.01.2009. In so far as, the rights and liabilities under the said agreement are concerned, the petitioners cannot lead evidence. In the suit, the plaintiffs are required to prove the execution of the terms and conditions of the Development Agreement dated 03.01.2009. Whether the developer has fulfilled the terms and conditions under the Development Agreement or not is a question, which can be established by the plaintiffs and not by the petitioners. The judgment in Sumtibai and Ors. relied upon by the learned counsel for the petitioners has no application in the present case. 7. Whether the developer has fulfilled the terms and conditions under the Development Agreement or not is a question, which can be established by the plaintiffs and not by the petitioners. The judgment in Sumtibai and Ors. relied upon by the learned counsel for the petitioners has no application in the present case. 7. Considering the aforesaid facts, I find no merit in the writ petition and, accordingly, it is dismissed. Petition dismissed.