Gulshan Kumar vs Anil Kumar and Another

L.N. Mittal, J.—Gulshan Kumar plaintiff has invoked the jurisdiction of this Court under Article 227 of the Constitution of India to challenge order 6.5.2010, Annexure P/1, passed by learned Additional Civil Judge (Senior Division), Pehowa thereby allowing application moved by respondent No. 2 Satish Kumar under Order 1 Rule 10 of the CPC for impleading him as party to the suit instituted by petitioner-plaintiff against respondent No. 1 - sole defendant Anil Kumar.

Petitioner has filed suit against respondent No. 1 for specific performance of the agreement to sell allegedly executed by respondent No. 1 in favour of the petitioner.

Respondent No. 2 in his application Annexure P/3 alleged that he has purchased 25'' x 15'' land with two double storied shops, of which the suit property of the instant suit is a part and therefore, applicantrespondent No. 2 is a necessary party to the suit.

I have heard learned Counsel for the parties and perused the case file.

Learned Counsel for the petitioner vehemently contended that in suit for specific performance of the contract, a stranger or third party to the contract claiming to have independent title and possession over the contracted property is not entitled to be added as party to the suit. Reliance in support of his contention has been placed on judgment of Hon''ble Supreme Court in Kasturi v. Iyyamperumal and Ors., 2005(2) Civil Court Cases 379.

On the other hand, learned Counsel for respondent No. 2 contended that if a third party shows some semblance of title or interest in the suit property, such third party can be impleaded to the suit for specific performance of the contract. Reliance in support of this contention has been placed on judgment of Hon''ble Supreme Court in Sumtibai and Ors. v. Paras Finance Co. Mankanwar W/o Parasmal Chordia (D) and Ors., 2007(4) RCR (Civil) 524. Learned Counsel for respondent No. 2 has also cited judgment of this Court in Inder Vikram Singh v. Dr. Harinder Pal Singh, 2008(1) HRR 292 to contend that a person interested likely to be effected is also entitled to be impleaded as party to the suit.

I have carefully considered the rival contentions. Judgment in the case of Kasturi supra (delivered by Bench of three Hon''ble Judges of the Supreme Court) categorically lays down that stranger or third party to the contract claiming independent title in the suit property is not entitled to be added as party to the suit for specific performance instituted by the purchaser against vendor. Ratio of law laid down in this judgment is fully applicable to the facts of the case in hand. On the other hand, judgment of Hon''ble Supreme Court in the case of Sumtibai supra (delivered by Bench of two Hon''ble Judges of the Supreme Court) is completely distinguishable on facts. In that case suit was filed against Kapoor Chand defendant for specific performance of the agreement to sell. Kapoor Chand died during the pendency of the suit and his wife and sons etc. were brought on record as his legal heirs. Thereafter they moved application under Order 22 Rule 4 (2) read with Order 1 Rule 10 CPC for permitting them to file additional written statement to take such pleas as may be available to them. Hon''ble Supreme Court allowed the said prayer of legal representatives of the original defendant who had already been impleaded as party to the suit. Thus, in that case the question of impleading them as party to the suit was not even involved before the Hon''ble Supreme Court and had already attained finality. In addition to it, in that suit the sale deed vide which Kapoor Chand original defendant had himself purchased the suit property revealed that in fact by the said sale deed the suit property was purchased not by Kapoor Chand alone but by Kapoor Chand and his sons. It was in view of this special circumstance in that case that the Hon''ble Supreme Court observed that a person showing semblance of title in the suit property may be impleaded as party to the suit for specific performance of the agreement to sell. Thus, in that case there were two significant distinguishing features. Firstly the question of impleading any party was not even an issue before the Hon''ble Supreme Court as legal representatives of Kapoor Chand defendant had already been impleaded. Secondly, sons of Kapoor Chand defendant, who were also impleaded among his legal representatives were also co-purchasers of the suit property with Kapoor Chand by the same sale deed. Obviously this judgment is completely distinguishable and is not applicable to the facts of the case in hand whereas judgment in the case of Kasturi (supra) is fully and directly applicable to the facts of the instant case. Judgment of this Court in the case of Inder Vikram Singh is not on the issue as in that case suit was filed by plaintiff for possession on the basis of title.

For the reasons aforesaid, I find that respondent No. 2 is not necessary or proper party to the suit. By impleading him scope of the suit would be enlarged as issue of title of defendant/respondent No. 1 as well as of respondent No. 2 and his vendor would have to be adjudicated upon. It may be added that respondent No. 1 is son of brother of respondent No. 2. The question of title cannot be adjudicated upon in the instant suit preferred by petitioner against respondent No. 1.

As a necessary upshot of the aforesaid discussion, it is concluded that the impugned order of the trial court suffers from illegality and jurisdictional error and is unsustainable. The revision petition is, therefore, allowed and impugned order Annexure P/1 passed by learned trial court is set aside and application Annexure P/3 moved by respondent No. 2 stands dismissed.