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2015 DIGILAW 663 (MP)

Tabassum v. Shabbir Hussain

2015-06-30

S.K.GANGELE

body2015
JUDGMENT : S.K. Gangele, J. 1. Heard. 2. The petitioner has filed this petition against the order dated 20.03.2012 (Annexure-P-4) passed in Civil Suit No. 34-A/2011 by which, the trial Court rejected the application of the petitioner filed under Order 1 Rule 10 of CPC. 3. The respondents No. 1 to 3/plaintiffs filed a suit for Specific Performance of Contract against the respondent No. 4/defendant. It was pleaded by the plaintiffs that the respondent No. 4 contracted with the plaintiffs to sell of the suit house in favour of the defendant. The plaintiff filed a suit for Specific Performance of Contract. In the aforesaid suit, the petitioner filed an application under Order 1 Rule 10 of CPC. She opposed the prayer for grant of decree of Specific Performance of Contract. She pleaded that she was married with the son of defendant Mr. Mohd. Sajid on 27.12.2001. At the time of marriage, a Mehar of the petitioner was fixed of Rs.52,000/- and it was agreed that half portion of the suit house No. 409 would be given to the petitioner. Her husband had also consented to this. The aforesaid fact was also recorded in the 'Nikahanama'. The petitioner further pleaded that she is in possession on half portion of the suit house which is on the ground floor and she has been receiving the rent from the tenants. She has been residing on second and third floor of the suit house. She further pleaded that she is owner and in possession of half portion of the suit house. Her father-in-law/defendant had no right to execute the agreement in regard to sell of the house in favour of the plaintiffs. 4. The plaintiff/respondent No. 3 denied the pleadings of the petitioner. They pleaded that the defendant entered into an agreement to sell the suit house with the plaintiffs on 23.06.2010 in consideration of Rs.25 Lacs. The trial Court rejected the application of the petitioner after holding that the petitioner is not the necessary party. 5. Learned counsel for the petitioner has contended that the order passed by the trial Court is contrary to law. The trial Court has committed an error of jurisdiction in passing the impugned order. The trial Court rejected the application of the petitioner after holding that the petitioner is not the necessary party. 5. Learned counsel for the petitioner has contended that the order passed by the trial Court is contrary to law. The trial Court has committed an error of jurisdiction in passing the impugned order. He has further submitted that if any decree of Specific Performance of Contract is passed in favour of the plaintiffs, then the right of the petitioner would be adversely affected hence, she is a necessary party. 6. Learned counsel appearing on behalf of the respondents No. 1 to 3 refuted the contention of the counsel of the petitioner. He submitted that the petitioner is a stranger in the proceedings of Specific Performance of Contract. The father-in-law had no right to give the half portion of the suit house in Mehar to the petitioner. Mehar has to be paid by the husband. It is further contended that Meharnama was to be registered in accordance with the Mahomedan Law. Hence the order passed by the trial Court is bad in law. In support of his contention, learned counsel for the respondents relied on the following judgments. (1) Vijay Pratap and others vs. Sambhu Saran Sinha and others, : AIR 1996 SC 2755 . (2) Panne Khushali and another vs. Jeewanlal Mathoo Khatik and another, : AIR 1976 MP 148 . (3) Sumtibai and others vs. Paras Finance Co. Regd. Partnership Firm, : AIR 2007 SC 3166 . (4) Zainab Bi vs. Jamalkhan and others (1949 NLJ.) 7. In the present case, the petitioner has specifically pleaded that she is owner of half portion of the suit house. She is in possession of the aforesaid portion of the suit house and she has been receiving the rent from the tenants. Apart from this, she has pleaded that the half portion of the suit house was given to her in lieu of Mehar which was fixed during her marriage and the same fact has been mentioned in his Nikahnama. The merits of the case that whether the suit house can be given to the petitioner as 'Mehar' and whether it was valid or not can be considered during the trial, but at this stage, the petitioner has clearly established that she has a title in regard to half portion of the suit house. The merits of the case that whether the suit house can be given to the petitioner as 'Mehar' and whether it was valid or not can be considered during the trial, but at this stage, the petitioner has clearly established that she has a title in regard to half portion of the suit house. She would be affected adversely if a decree of Specific Performance of Contract is passed in favour of the plaintiffs. The three judges of Hon'ble Supreme Court in the case of Kasturi vs. Iyyamperumal and others reported in : (2005) 6 SCC 733 has observed as under:- 17.............Apart from that, the intervener must be directly and legally interested in the answers to the controversies involved in the suit for specific performance of the contract for sale. In amon vs Raphael Tuck and Sons Ltd., it has been held that a person is legally interested in the answers to the controversies only if he can satisfy the court that it may lead to a result that will affect him legally. 8. The Supreme Court further held as under:- 18. That apart, there is another principle which cannot also be forgotten. The appellant, who has filed the instant suit for specific performance of the contract for sale is dominus litis and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law, as already discussed above. For the reasons aforesaid, we are, therefore, of the view that Respondents 1 and 4 to 11 are neither necessary parties nor proper parties and therefore they are not entitled to be added as party-defendants in the pending suit for specific performance of the contract for sale. 9. In the aforesaid quoted judgment, the Supreme Court has clearly held that a person can be permitted to add as a party, if he is legally interested in the answers to the controversies in the suit and if he can satisfy the Court that it may lead to a result that will affect him legally. The Supreme Court has further observed that in the Specific Performance of Contract a person can be added as a party, if it is a compulsion of the rule of law. 10. In the present case, the petitioner has clearly established that she has got ownership right in regard to half share of the suit house. The Supreme Court has further observed that in the Specific Performance of Contract a person can be added as a party, if it is a compulsion of the rule of law. 10. In the present case, the petitioner has clearly established that she has got ownership right in regard to half share of the suit house. She is in possession of the half share of the suit house. She has been getting rent from the tenants. In such circumstances, certainly the petitioner would be affected adversely if any decree of Specific Performance of Contract is passed in the pending suit. In such circumstances, the petitioner is a necessary party and it is a compulsion to add her as a party. In my opinion, the trial Court has committed an error of jurisdiction in dismissing the application filed by the petitioner. 11. Consequently, the petition of the petitioner is allowed. The impugned order dated 20.03.2012 (Annexure-P-4) is hereby quashed. 12. The trial Court is directed to add the petitioner as defendant in the pending civil suit. She be permitted to file the written statement and contest the suit accordingly. No order as to the costs.