Rattan Singh Ahluwalia vs Khushal Singh and Others

A.L. Bahri, J.—Rattan Singh Ahluwalia, plaintiff, challenges in this Revision Petition order dated February 8,1988 passed by the Subordinate Judge 1st Class Ludhiana dismissing his application filed under Order 6 Rule 17 and under Order 1 Rule 10 of the Code of Civil Procedure.

Rattan Singh, plaintiff filed the suit of specific performance of agreement dated May 22, 1980 executed by Khushal Singh, respondent in his favor for selling the plot in dispute. Banwari Lal, Ashok Kumar and Dev Kumar, were also impleaded as defendants Khushal Singh had sold part of the property in dispute to them, in pursuance of two agreements entered into by Khushal Singh with them dated May 15, 1980 and May 22, 1981. Subsequently, it transpired that on those very two dates, as mentioned above. Khushal Singh had also entered into agreement to sell part of the plot in dispute in favour of Garib Dass Hans who had filed a suit against Khushal Singh and obtained an ex parte decree and in consequence a sale deed in his favour. Thus, application was filed for impleading Garib Dass Hans also as a defendant and to amend the plaint accordingly so that if the suit filed by Rattan Singh, finally succeeds, he need not have to file another suit against Garib Dass Hans. This application was dismissed on February 8,1988.

The contention of Mr. D.R. Mahajan, Advocate appearing on behalf of the petitioner is that G.D. Hans is a subsequent vendee, who had obtained an ex parte decree in his favour and got the sale deed executed and he is, therefore, necessary party for proper adjudication of the suit in dispute relating to the interest of the plaintiff. Otherwise, if the plaintiff succeeds in the present suit he has to file a separate suit against Garib Dass Hans. On the other hand, it has been argued by Mr. H.S. Sangha, Advocate appearing on behalf of the respondents, who has also filed a rejoinder to the Revision Petition, inter alia alleging that Garib Dass Hans is not a necessary party and the alleged decree obtained by him, ex parte is not binding on the respondents. On merits also, it is alleged that the plaintiff played a fraud on Khushal Singh in obtaining a receipt of Rest. 50,000/- without making payment of the same. The payment order which was delivered to Khushal Singh by Rattan Singh was not encashed, according to the bank, the said payment order had been lost as reported.

It is the case, as pleaded by both the parties at present fighting the suit that ex parte decree obtained by Garib Dass or the sale deed executed by Court official in his favour in respect of part of the property in dispute is not binding on them, as they were not parties to the suit filed by Garib Dass Hans.

I have given due consideration to these arguments. On behalf of the respondents, reliance has been placed on certain decisions which cannot be followed as a precedent. In Saudagar Singh v. Harnek Singh and Ors. (1988 ) 94 P.L.R. 181 the question for consideration was as to whether on application filed by a person, in whose favour there was prior agreement to sell, could he be impleaded as a party to the suit filed for specific performance of an agreement. The trial Court rejected the application of Saudagar Singh being a necessary party, the said order was upheld. On a similar matter, there was a decision of the Division Bench in Krishan Lal v. Tek Chand (1986 ) 90 P.L.R. 616. The Division Bench held that in such a suit a person who is not a party to the agreement for sale is neither a necessary nor a proper party. The plaintiff is the dominus litus in a suit. He should not, unless the provisions of any statue so require, be enforced to fight against a person against whom he does not claim or seek any relief. The scope of the suit ought not to be enlarged and the suit turned into a title suit between one of the either parties to the contract and a stranger to the contract. It was further held by the Division Bench after making reference to Order 1, Rule 10 of the CPC that it empowers the Court to direct any person who sought to have been joined as a plaintiff or defendant or whose presence before the Court is necessary in order to enable the Court effectively and completely to adjudicate upon and se(sic)tle all questions involved in the suit be added as parties. On the same lines is the judgment of D.V. Sehagal, J. in Niranjan Singh v. Union of India (1988 )93 P.L.R. 29. Plaintiff''s suit for declaration was pending when the land was sold by auction by the Rehabilitation Department. The vendee did not take any steps for being impleaded as a party. At a belated stage, the vendee applied for being impleaded as party, but, his request was declined.

It would be noticed that in the three cases relied upon by the respondents as referred to above, it was not the request of the plaintiff to implead as party defendant a person in whose favour there existed a prior agreement to sell Kather those persons claiming to be parties to the prior agreement wanted to become as parties and their request was declined that they could not force their litigation on the plaintiff of their own. Present is a case, where the plaintiff himself wants that in order to get his rights adjudicated upon for all times to cone that a subsequent vendee be also impleaded as a party, The (sic)ere fact that the decree obtained by Garib Dags Hans was ex parte without impleading any of the parties in the present suit will be binding or not are questions to be determined after Garib Dass Hans is impleaded as a defendant and allowed to take up the relevant pleas. At this stage no comment can be made on these points.

A similar matter arose before the Allahabad High Court in Raj Singh Vs. Ram Nivas and Another, . A suit for specific performance of a contract was filed. Person who had purchased suit property in auction during pendency of the suit was ordered to be impleaded as defendant, holding that he was a proper party Application for striking out his name was rejected. While referring to the provisions under .Order 1, Rule 10 of the Code of Civil Procedure, it was observed that this provision is meant to give to every parson an opportunity of being heard whose rights might be affected by the ultimate decree. It was further observed that if the Court passes the decree for specific performance of contract and the sale deed is to be executed it will necessarily cast a cloud on the interest of such a person who had purchased the property during the pendency of the suit.

Learned counsel for the respondents referred to the decision of Full Bench of this Court in M/s Indo Swiss Time Ltd. v Umrao 1981)83 P. L.R. 335 (F.B.). That was a case where land was acquired for the benefit of a company. However, it was held that the said Company was not a necessary party to be impleaded in the reference for enhancement of the compensation of the land acquired made u/s 18 of the Land Acquisition Act. It was held that the Company was not an interested person so as to give it a right to become a party in such proceedings. Such a Company bad no right to appeal. At the most, the Company could adduce evidence for the determination of the amount of compensation. The ratio of this decision is not applicable to the case in hand.

Further reliance has been placed on behalf of the respondents on the Division Bench Judgment of this Court in Arjan Singh and Ors. v. Kartar Singh and Ors. (1975)77 P. L. R 34, wherein it was held that under Order 1. Rule 10 of the CPC a wide discretion is given to the Court to meet every case of defect of parties. However, such power is to be exercised on judicial principles and not arbitrarily. Person to be added as a party must be necessary to effectually and completely adjudicate upon and settle all the points involved in the suit. The principle laid down in this judgment has been kept in view while deciding the Revision Petition Gokal Chand Mital, J in Gurdev Singh v. Paras Ram,7, held that in a suit for specific performance of contract person in its exclusive possession as owner could be impleaded as a defendant.

Keeping in view the ratio of the decision referred to above, I am of the view that the trial Court was not justified in rejecting the application filed by the plaintiff under Order 1, Rule 10 read with Order 6 Rule 17 of the CPC for impleading Garib Dass Hans as a party defendant in the suit, as, during the pendency of the said suit he obtained a sale deed in respect of part of the suit property in his favour in execution of decree obtained by him, against Khushal Singh, a defendant in the suit.

For the reasons recorded above, this Revision petition is accepted, with nO order as to costs. Order of the trial Court is set aside and the application under Order 1, Rule 10 read with Order 6 Rule 17 of the CPC by the plaintiff in order to implead Garib Dass Hans as a party in the suit in allowed. Parties through their counsel are directed to appear in the trial Court on June 14, 1990.