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2018 DIGILAW 97 (RAJ)

Jamna Devi Gurjar v. Aijan Devi Gurgar

2018-01-05

SANJEEV PRAKASH SHARMA

body2018
ORDER : Sanjeev Prakash Sharma, J. The petitioner by way of this writ petition challenges the order dated 15.02.2017 passed by Civil Judge & Judicial Magistrate, Ist Class, Kekri District Ajmer whereby the application under Order 1, Rule 10 CPC filed by respondent No. 4 was allowed and respondent No. 4 was impleaded as a party to the suit. 2. Learned Counsel for the petitioner submits that the plaintiff-petitioner had preferred a suit for specific performance for seeking implementation of the agreement dated 31st July 2007 entered into between her and defendant-respondent No. 1. Respondent No. 4 who has been impleaded as a party is a stranger to the agreement. Learned Counsel relies on the law laid down by the Apex Court in AIR 2005 Supreme Court Cases 2813; Kasturi v. Iyyamperumal & Ors. wherein while examining the provisions of Order 1, Rule 10 CPC and in relation to a suit for specific performance, it was held as under :- "6. In our view, a bare reading of this provision namely, second part of Order 1, Rule 10 sub-rule (2) of the CPC would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead their legal representatives as also a person who had purchased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are - (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings (2) no effective decree can be passed in the absence of such party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are - (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings (2) no effective decree can be passed in the absence of such party. " Considering the provisions of Section 19, it was held in para 18 as under : - "18.- In our view, the third party to the agreement for sale without challenging the title of the respondent No. 3, even assuming they are in possession of the contracted property, cannot protect their possession without filing a separate suit for title and possession against the vendor. It is well settled that in a suit for specific performance of a contract for sale the lis between the appellant and the respondent Nos. 2 and 3 shall only be gone into and it is also open to the Court to decide whether the respondent Nos. 1 and 4 to 11 have acquired any title and possession of the contracted property as that would be germane for decision in the suit for specific performance of the contract for sale, that is to say in a suit for specific performance of the contract for sale the controversy to be decided raised by the appellant against respondent Nos. 2 and 3 can only be adjudicated upon, and in such a lis the Court cannot decide the question of title and possession of the respondent Nos. 1 and 4 to 11 relating to the contracted property." 3. Per contra, learned Counsel for the respondents submits that respondent No. 4 was brother of the owner of the property of deceased Narayan. He states that Narayan died unmarried and the agreement to sell entered between the petitioner and respondent No. 1 is a collusive agreement and respondent No. 1 does hold the title to the property. Learned Counsel relies on the judgment passed by the Division Bench of this Court in Moolchand Bothra v. Addl. District Judge & Ors.; 2009(4) RLW 2906 and submits that the Division Bench has distinguished the view taken by the Apex Court in the case of Kasturi (supra). 4. Having heard both the Counsel, I find that the judgment relied upon by learned Counsel for respondent No. 4 is on different facts altogether. District Judge & Ors.; 2009(4) RLW 2906 and submits that the Division Bench has distinguished the view taken by the Apex Court in the case of Kasturi (supra). 4. Having heard both the Counsel, I find that the judgment relied upon by learned Counsel for respondent No. 4 is on different facts altogether. The agreement which was sought to be specifically performed was entered between the plaintiff and respondent Nos. 2 & 3 and, therefore, when an application was moved by respondent No. 3 therein, he was treated as a necessary party. On the facts, therefore, the judgment of Kasturi (supra) was found to be inapplicable. 5. So far as the present case is concerned, the agreement is solely between the petitioner and respondent No. 1. Respondent No. 4 is completely stranger to the said agreement. In view thereof the law as laid down by the Apex Court in Kasutri (supra) applies squarely to the facts of the case. Even the observations as noted above, show that the claim of respondent No. 4 is on the basis of the title of the property which has been considered to be not a ground to entertain application for impleadment by the Apex Court while deciding the aforesaid judgment of Kasturi (supra). 6. In view of above, I find that the order passed by the learned Judicial Magistrate, Kekri dated 15.02.2017 is erroneous and is not proper interpretation of the judgment of the Apex Court. Application of respondent No. 4 (applicant) under Order 1, Rule 10 CPC ought to have been rejected. 7. Accordingly, this writ petition is allowed and respondent No. 4 is deleted from the array of defendants. The suit may proceed further now.