Ashok Kumar Jain vs Charanjeet Singh and Others

Rakesh Kumar Jain, J.

CM-24545-46-CII-2014

Applications are allowed, as prayed for.

CR-7856-2013

The question involved in this revision petition is as to "whether a tenant can ask for impleadment in a suit for specific performance being a stranger to the agreement?" In brief, the plaintiff (petitioner herein) filed the suit for possession by way of specific performance of the agreement to sell dated 06.03.2006, entered into by defendants No. 1 and 2 (respondents No. 1 and 2 herein) in respect of shop No. 299, Auto Market, Hisar for a consideration of Rs. 30,45,000/- against which Rs. 5,00,000/- was paid as advance and the target date for execution and registration of the sale deed was fixed as 03.07.2006. According to the plaintiff, he paid another sum of Rs. 3 lacs to defendants No. 1 and 2 on 14.04.2006 and the target date was extended upto 03.08.2006 and thereafter upto 20.12.2006. It is also submitted that in total, a sum of Rs. 11,00,000/-was received by defendants No. 1 and 2 on different dates, as mentioned in the agreement, and since defendants No. 1 and 2 refused to own up their commitment, the plaintiff was compelled to file the suit.

After appearance, defendants No. 1 and 2 filed their written statement to the suit and admitted to have received Rs. 8,00,000/- instead of Rs. 11,00,000/-. They also pleaded that they were present in the office of the Sub Registrar on the date fixed but the plaintiff did not turn up with the balance payment for getting the sale deed executed and registered. Thereafter, on the pleadings of the parties, as many as 8 issues were framed by the trial Court.

During the pendency of the suit, one application under Order 1 Rule 10 of the Code of Civil Procedure, 1908 was filed by M/s. Hero Water Meters, 289, Automobile Market, Barwala Road, Hisar through its partner Ranjeet Singh for impleading it as defendant in the suit.

In para 2 of the application, it was averred that applicant Ranjeet Singh, in the capacity of partner and General Attorney on behalf of remaining three partners, namely, Jagjeet Singh, Charanjeet Singh and Subeg Singh, is filing the application being the lessees over the suit property by way of registered lease deed dated 10.07.1981 and occupying the suit property as a tenant. However, in para 4 of the application, there was a contradictory plea taken by Ranjeet Singh that after the death of their father Swaran Singh, he is owner in equal share in the shop in dispute.

This application was contested by the petitioner and ultimately vide the impugned order, the same has been allowed. Hence, this revision petition.

Counsel for the petitioner has argued that Section 19 of the Specific Relief Act, 1963 (here-in-after referred to as the "Act") would determine as to who should be the party in a suit for specific performance.

Section 19 of the Act reads as under:--

"19. Relief against parties and persons claiming under them by subsequent title.-Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against-

(a) either party thereto;

(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;

(c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant;

(d) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;

(e) when the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company: Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract."

It is submitted that the applicant Ranjeet Singh has categorically alleged that respondent No. 3-firm is in possession of the suit property as a lessee by virtue of the registered lease deed dated 10.07.1981 and there is no ownership of the said applicant Ranjeet Singh over the property in dispute, as alleged in para 4 of the application. It is further submitted that respondent No. 3 cannot be allowed to be impleaded as a party in the suit because a tenant would remain a tenant along with its tenancy rights until and unless evicted by the order of the Court. In support of his submission, he has relied upon the following judgments:--

"1. Sumtibai and Others Vs. Paras Finance Co. Regd. Partnership Firm Beawer (Raj.) Thru Smt. Mankanwar Chordia (Dead) and Others, ;

Kasturi Vs. Iyyamperumal and Others, ;

Bharat Karsondas Thakkar Vs. Kiran Construction Co. and Others, ;

Nirmala Anand v. Advent Corporation Pvt. Ltd. & others, 2002(2) R.C.R. (Civil) 815;

Ganapati Apartments Pvt. Ltd. Vs. Favourite Small Investment Ltd., "

Counsel for the respondents, however, argued that though the application was filed on behalf of the firm through Ranjeet Singh but as a matter of fact Ranjeet Singh is also co-owner in equal share in the property in dispute along with his brothers, i.e. respondents, No. 1 and 2, therefore, the trial Court has rightly impleaded Ranjeet Singh as defendant. He has also submitted that the judgment of the Supreme Court in Sumtibai''s case (supra) is also in his favour.

In reply, learned counsel for the petitioner has submitted that the property in dispute was to be sold to the petitioner after the Will in favour of defendants No. 1 to 3 was probated. This probate petition was contested by Ranjeet Singh and his sisters Sharanjit Kaur and Gurnam Kaur and ultimately the same has been dismissed leaving the petitioner high and dry with regard to title of defendants No. 1 and 2.

After hearing learned counsel for the parties and examining the record, I am of the considered opinion that the Court has to look into the application itself and the person who is asking for impleadment. In this case, the impleadment is being sought by the partner of the firm who has alleged that the partnership firm is in possession of the suit property as a lessee and not in possession of Ranjeet Singh, the alleged co-owner of the suit property. There is a patent error on the part of the Court below in allowing the application while impleading Ranjeet Singh as defendant though there is no such application on his behalf. It is held that a tenant cannot be impleaded as a party in a suit for specific performance because he would remain a tenant as long as he is not evicted by any order of the Court. Thus, the tenancy rights would survive even if the title of the property change hands.

In view of the above, the present revision petition is allowed and the impugned order is set aside. While parting with the order, it is observed that Ranjeet Singh has his individual right as the alleged co-owner to pursue his remedies to be impleaded as a party to the suit.