Jatinder Dhir vs Atul Kumar and Others

L.N. Mittal, J.—This revision petition has been filed by defendant no. 1 Jatinder Dhir under Article 227 of the Constitution of India assailing order dated 23.10.2012 (Annexure P-8) passed by the trial court, thereby allowing application dated 11.09.2012 (Annexure P-4) moved by respondent no. 1 Atul Kumar for being impleaded as party to the suit, which has been instituted by respondent no. 2 Vinod Kumar-plaintiff against defendant no. 1 - petitioner and performa respondents no. 3 to 9 as defendants no. 2 to 8. Plaintiff has filed suit vide plaint (Annexure P-2) for possession of suit property by specific performance of agreement to sell dated 04.04.2008, allegedly executed by defendants no. 1 to 7 in favour of plaintiff.

Respondent no. 1, in his application (Annexure P-4), alleged that the plaintiff, pursuant to agreement dated 04.04.2008, had executed further agreement dated 09.08.2011 to sell the suit property to respondent no. 1, and therefore, respondent no. 1 is necessary party to the suit having legal and vested right under agreement dated 09.08.2011.

Plaintiff, by filing reply (Annexure P-6), admitted the claim of respondent no. 1. However, defendants no. 1 to 7, by filing reply (Annexure P-7) contested the application and pleaded that agreement dated 04.04.2008 stood rescinded, terminated and cancelled, and therefore, agreement dated 09.08.2011 could not have been entered into by the plaintiff with respondent no. 1. Various other pleas were also raised.

It was also pleaded that the plaintiff had not been appearing for his cross-examination as witness. He had availed of nine opportunities for the same and the instant application has been got moved by the plaintiff.

Learned trial court, vide impugned order (Annexure P-8), has allowed application (Annexure P-4) moved by respondent no. 1 and has ordered his impleadment as defendant no. 9 to the suit. Feeling aggrieved, defendant no. 1 has filed this revision petition to assail the said order.

I have heard counsel for the parties and perused the case file.

Counsel for the petitioner contended that if plaintiff had already assigned his rights under agreement dated 04.04.2008 (Annexure P-1) to respondent no. 1 by executing agreement dated 09.08.2011 (Annexure P-5) before the suit was filed on 25.10.2011, then the plaintiff himself was left with no right to institute the suit. It was also argued that the plaintiff, at best, had right to sue under the agreement Annexure P-1 and could not have assigned the said right to respondent no. 1 by way of agreement Annexure P-5. Counsel for the petitioner has placed reliance on two judgments of Hon''ble Supreme Court in the cases of Ramesh Chandra Pattnaik Vs. Pushpendra Kumari and Others, and Anil Kumar Singh Vs. Shivnath Mishra alias Gadasa Guru,

On the other hand, counsel for respondent no. 1 contended that in view of agreement Annexure P-5 in his favour, he has been rightly impleaded as party to the suit. It was pointed out that under agreement Annexure P-1, plaintiff could have got the sale deed executed in favour of any third person as well. In this regard, reference has also been made to Section 15(b) of the Specific Relief Act. Counsel for respondent no. 1 has relied on various judgments of this Court namely Rajiv Goel Vs. Sohan Lal Khosla and Another, , Gopal Singh Vs. Raghbir Singh and Another, , Uma Rani and Another Vs. Balwinder Singh and Another, and also on a judgment of Hon''ble Supreme Court in the case of T.M. Balakrishna Mudaliar Vs. M. Satyanarayana Rao and others,

I have carefully considered the matter.

In this case, respondents no. 1 and 2, in connivance with each other, are playing tricks with the Court. Respondent no. 2 - plaintiff has admitted having executed agreement dated 09.08.2011 (Annexure P-5), in favour of respondent no. 1. In spite thereof, respondent no. 2 - plaintiff filed suit vide plaint dated 25.10.2011 (Annexure P-2). However, in view of agreement (Annexure P-5), as per own version of the plaintiff, he was left with no right, title or interest in the suit land, having assigned his rights under agreement dated 04.04.2008 (Annexure P-1) to respondent no. 1. Faced with this situation, the plaintiff did not appear in the witness-box for his cross-examination in spite of nine opportunities, and thereafter, he got filed application (Annexure P-4) by respondent no. 1. By the time application (Annexure P-4) by respondent no. 1 was filed, limitation period for seeking specific performance of the agreement (Annexure P-1) had already expired, and therefore, respondent no. 1 could not have filed suit for specific performance of agreement (Annexure P-1). Consequently, he could not be impleaded as party to the suit.

The matter may also be examined from another angle. Respondent no. 1 has been impleaded as defendant no. 9 to the suit. Even if claim of the plaintiff on the basis of agreement (Annexure P-1) is accepted, relief cannot be granted to respondent no. 1 as defendant no. 9.

In the aforesaid circumstances, respondent no. 1 could not have been impleaded as party to the instant suit. Judgments cited by counsel for the parties are not directly applicable to the facts of the case in hand.

For the reasons aforesaid, I find that impugned order passed by the trial court suffers from illegality and jurisdictional error as respondent no. 1 could not have been impleaded as party to the instant suit. Resultantly, the instant revision petition is allowed. Impugned order (Annexure P-8) passed by the trial court is set aside. Application (Annexure P-4) filed by respondent no. 1 for being impleaded as party to the suit stands dismissed.