Hakam Singh and Others vs Baldev Singh and Another

Paramjeet Singh, J.—Instant revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 31.07.2013 (Annexure P/3) passed by learned Civil Judge (Junior Division), Bathinda, whereby application filed by the petitioners under Order 1 Rule 10 read with Section 151 CPC has been dismissed. Brief facts relevant for disposal of the revision petition are that respondent No. 1-plaintiff filed a suit for specific performance of agreement to sell dated 10.08.2007 against respondent No. 1-defendant. In the said suit petitioners moved an application for impleading them as necessary party, which has been dismissed vide impugned order dated 31.07.2013 (Annexure P/3). Hence, this revision petition.

Heard.

Learned counsel for the petitioners contended that there was previous litigation between the petitioners and Jaswant Singh, respondent No. 2-defendant and others. In the said proceedings, the land in question was also involved wherein it was held that petitioners were in exclusive possession of the said land and defendants therein including Jaswant Singh were retrained from interfering in possession of the petitioners on the said land measuring 54 kanals 6 marlas. Now, learned counsel for the petitioners states that same very Jaswant Singh has entered into an agreement to sell dated 10.08.2007 with Baldev Singh-respondent No. I/plaintiff. The application filed by the petitioners-applicant under Order 1 Rule 10 CPC was vehemently opposed by the respondent No. 1- plaintiff before the trial Court by contending that the stranger cannot be allowed to be impleaded as a party and the principle of dominus litus shall apply.

Hon''ble Supreme Court in Kasturi Vs. Iyyamperumal and Others, has held that there are two tests to be satisfied for determining the question, who is necessary party. Test are (i) There must be a right to some relief against such party in respect of the controversy involved in the proceedings, (ii) No effective decree can be passed in the absence of such party.

Learned trial Court has relied upon the law laid down by Hon''ble Supreme Court in Kasturi''s case (supra) and dismissed the application of the petitioner by holding that going by the tests laid down by the Hon''ble Supreme Court, necessary party in a suit for specific performance of a contract for sale are the parties to contract or if they are dead their legal representative. In equity as well in law contract constitutes rights and also regulates the liability of the parties to contract. Therefore, a person, who claims adversely to the claim of a vendor is not a necessary party in such suit.

Learned counsel relies upon the judgment of Hon''ble Supreme Court in Sumtibai and Others Vs. Paras Finance Co. Regd. Partnership Firm Beawer (Raj.) Thru Smt. Mankanwar Chordia (Dead) and Others, to contend that judgment of Hon''ble Supreme Court in Kasturi''s case (supra) has been distinguished on facts in Sumtibai''s case (supra) and it has been held that a third party may file an application for impleadment.

I have considered the contentions raised by the learned counsel for the petitioners and perused the judgments referred to herein above.

The judgment of Hon''ble Supreme Court in Kasturi''s case (supra) is by three Judges'' Bench wherein it is specifically held that in suit for specific performance stranger to contract cannot be allowed to be impleaded as defendant.

As per settled principles of law of precedent, when there is a conflict in judgments, the judgment of the larger Bench is to be preferred. Admittedly, the judgment of Sumtibai''s case (supra) is by two Judges'' Bench whereas the other judgment i.e. Kasturi''s (supra) is by three Judges'' Bench. Certainly, the principle of law laid down in Kasturi''s case (supra) will prevail. Even otherwise, Kasturi''s case (supra) has been distinguished on facts of that case and it cannot be said that on that basis the law laid down in Kasturi''s case (supra) is not applicable to the facts of the present case.

I have also considered the basic principle as envisaged under the provisions of Order 1 Rule 10 CPC. Hon''ble Supreme Court in Kasturi''s case (supra) has held as under:- 21. For the reasons aforesaid, in our view, the stranger to the contract, namely, the respondent Nos. 1 and 4 to 11 making claim independent and adverse to the title of respondent Nos. 2 and 3 are neither necessary nor proper parties, and therefore, not entitled to join as party defendants in the suit for specific performance of contract for sale.

In view of this, I do not find any illegality or perversity in the impugned order. Dismissed.