Saudagar Singh vs Harnek Singh and others

A.L. Bahri, J.—A civil suit (Harnek Singh v. Ramesh Kumar) is pending in the Court of Sub Judge Ist Class, Ludhiana wherein Saudagar Singh moved an application under Order 1, Rule 10 of the CPC for being impleaded as a party which was dismissed on October 16, 1987. Hence this revision petition by Saudagar Singh.

Bakhtawar Singh owned land measuring 12 Kanals 6 Marlas situated in village Sherpur Kalan. Some construction was also made on this land by him and municipal number was allotted for the purposes of house tax. Bakhtawar Singh on June 6, 1978 entered into an agreement to sell the said property for a sum of Rs. 24,000/- in favour of Saudagar Singh. A sum of Rs. 21,000/- was paid towards earnest money and possession of the property was taken by Saudagar Singh. Subsequently, Sudagar Singh filed a suit for specific performance of the contract which is stated to be pending in the Court of Senior Sub Judge, Ludhiana. Bakhtawar Singh died during the pendency of the suit and his legal heir Devi Rani was impleaded as a party. She also died during the pendency of the said suit and her legal representative Ramesh Kumar was impleaded as a party in whose favour Devi Rani had executed a will. In the said suit, an application under Order 39, Rules 1 and 2 of the CPC was filed restraining legal representative of Devi Rani from alienating any portion of the property in dispute. Interim order was passed on the said application. Devi Rani is alleged to have entered into an agreement to sell portion of the property in dispute in favour of Harnek Singh on January 9, 1986 (about 3 Kanals of land). Harnek Singh filed a suit for specific performance of the said agreement against Ramesh Kumar. In this suit, Saudagar Singh aforesaid moved an application for being impleaded as a party.

Learned counsel for the petitioner has argued that Saudagar Singh is not only proper party but is a necessary party for effective decision of the controversy between the parties. There is a prima facie case in his favour as contract to sell in his favour by Bakhtawar Singh is much earlier to the alleged contract in favour of Harnek Singh by Devi Rani. Furthermore, the said agreement was entered into in spite of the injunction order issued in the case of Saudagar Singh. In support of his contention, reliance has been placed on the decision of R.N. Mittal, J. in Rajinder Singh v. Jaswant Singh 1987 (2) Cur. L.J. 151. No doubt, facts in that case are more or less similar to the facts of the present case, that is in a suit for specific performance, an application was filed for being impleaded as a party by a person in whose favour there was prior agreement to sell and the said person was allowed to be impleaded as a party. However, this contention cannot be accepted in view of a Division Bench judgment of Prem Chand Jain C.J. and Sukhdev Singh Kang J. in Krishna Lal and others v. Tek Chand (1986-2) 90 P.L.R. 616. In para 4 of the judgment, it was held as under:-

The crucial test is that the presence of such a person should be necessary to settle the questions involved in the suit. In a suit for specific performance the questions involved in the suit are the execution of the contract for sale, the readiness and willingness of the plaintiff to perform his part of the contract and the refusal or inability of the defendant to execute the contract. For settling these questions the presence of strangers who are not parties to the contract is not necessary. It is not even proper. A person who claims title adverse to the parties to the contract is not a necessary or a proper party. No relief is sought against such a person.

It was further held as under:-

That in a suit for specific performance contract of sale, a person not party to the agreement to sell and claiming to be joint owner of the subject-matter of the suit, is not entitled to be impleaded as a defendant. He is neither a necessary nor a proper party.

Saudagar Singh is not considered, in view of the ratio of the decision of the case referred to above, a necessary party in the suit (Harnek Singh v. Ramesh Kumar). If Saudagar Singh succeeds in his own suit, his rights would not be affected by subsequent agreement to sell.

For the reasons recorded above, this revision petition is dismissed. There will be no order as to costs.