Sapna Jain vs Varsha Chouhan And Others

Krishn Kumar Lahoti, J

The petitioner has assailed an order dated 6.12.2008 passed by 15th Additional District Judge (Fast Track) Jabalpur in Civil Suit No.8-A/2008 by which an application filed by the petitioner under Order 1 rule 10 CPC for impleading her as party was dismissed.

Learned counsel appearing for the petitioner assailed the aforesaid order on following grounds:-

(a) That the petitioner entered into an agreement to purchase the disputed property from defendant Chandraprabha Dixit. The suit filed by plaintiff Smt.Varsha Chouhan is a collusive and to protect the interest of the petitioner, it was necessary to implead her as party.

(b). That the application of the petitioner was filed for impleading her as party as she was necessary party and without impleading her, the suit could not have been decided. The trial Court erred in rejecting the application on the ground that the petitioner could not claim any right over the suit property merely on the basis of sale agreement. Reliance is placed by the petitioner to a judgment of Single Bench of this Court in Damodar Pathak Vs. Smt. Anternity 1977 (1) MPWN 91. It was submitted by the petitioner that being an effected person, she ought to have been impleaded as party in the suit.

To appreciate the contentions of the petitioner, impugned order and the documents produced in the case are perused. Respondent Smt.Varsha Chouhan filed a suit against Smt. Chandraprabha Dixit for declaration, possession, mesne profit and in the alternative, for recovery of an amount alongwith interest. The case of plaintiff Varsha Chouhan against Defendnt Chandraprabha Dixit before the trial Court was based on the ground that the plaintiff had sold the suit property to the defendant vide registered sale-deed dated 10.1.2006 for a consideration of Rs.9,50,000/-. The defendant had paid sale consideration by two account payee cheques for Rs.5,50,000/- and Rs.4,00,000/- dated 4.1.2006 and 6.1.2006. The plaintiff presented the cheques to the bank. The cheques were returned with the remarks of insufficient fund. Thereafter, the plaintiff had made a request to the defendant for payment of the amount, but the amount was not paid and there was some dishonest intention of the defendant. A notice was also served. Mainly the suit is based on the ground that without any sufficient fund, the cheques were issued which could not be realised, so the sale-deed be declared as null and void and for having been obtained by fraud, possession of the property be delivered to the plaintiff alongwith mesne profit. In the alternative, plaintiff has made a prayer for a money decree of Rs.12,07,446/- alongwith 12% interest on the sale consideration. The suit is contested by the defendant.

The petitioner herein, Smt.Sapna Jain, moved an application under Order 1 rule 10 CPC alleging that she has entered into an agreement to purchase the suit property from defendant Chandraprabha Dixit for a consideration of- Rs.9,00,000/-, out of which Rs.2,50,000/- were paid at the time of the agreement on 29.2.2006 and Rs.1,50,000/- were further paid on 10.10.2006 as part of sale-consideration. The sale-deed could not be executed. The petitioner became aware that the defendant had not paid sale- consideration to the plaintiff and the plaintiff and defendant both in collusion have played fraud with the petitioner, so petitioner served a notice through her counsel and thereafter moved an application before the Court under Order 1 rule 10 CPC. The trial Court considered the application and found that the petitioner is neither necessary nor proper party. No relief was claimed against her. On the basis of an agreement, petitioner could not acquire any right/title in the suit property and rejected the application. This order is under challenge in the petition.

From the perusal of the aforesaid facts, it is apparent that in the suit between the plaintiff and the defendant though the property which is subject matter of agreement in favour of petitioner is involved but this by itself cannot be a ground to permit the petitioner to implead her and to contest the suit between plaintiff and the defendant. The case of the plaintiff before the trial Court is in respect of non-payment of sale-consideration and for declaration that the sale-deed as null and void or in the alternative for recovery of the sale-consideration with interest. Apparently no relief can be granted to the petitioner in the suit. Apart from this, on the basis of an agreement to sale, petitioner cannot get any right and title in the suit property as envisaged under Section 54 of the Transfer of Property Act. The petitioner to protect her right can file a suit for specific performance of contract, but she is neither necessary party nor can be permitted to be impleaed as party to enlarge the scope of the suit. Apart from this, plaintiff has opposed the prayer of the petitioner. It is settled law that the plaintiff cannot be compelled to contest the suit against a person who is not made party in the plaint. In Damodar Pathak (supra), a suit was filed by the plaintiff seeking a declaration that the defendant was not entitled to sell his property to defendant No.2. In that case, application was filed under Order 1 rule 10 CPC that the defendant No.1 was only holder of the property on behalf of some of the owners of the property and the applicant was one of the co-owners who had not authorised to defendant No.1 to sell the property. In the aforesaid case, the rights of the applicant were directly and legally affected, so the trial Court permitted her impleadment and the revision preferred against such an order by the plaintiff was dismissed by the High Court. But the factual position in the present case is entirely different and the ratio of Damodar Pathak (supra) is not applicable in the present case.

In view of the aforesaid, there is no merit in this petition. This petition is dismissed. However, petitioner shall be at liberty to file a fresh suit for ventilation of her grievance, if any. No order as to costs.