Pankaj Shrivastav Vs Smt. Chandramani Devi Kushwaha

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2025:CGHC:4748

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WP227 No. 58 of 2024

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Pankaj Shrivastav S/o Rameshwar Shrivastava Aged About 34 Years Caste Kayasth, Profession Business, R/o Kalibadi Road, In Front Of State Bank, Haldi Badi Chirmiri, Police Station Bada Bazar Chirmiri, Tehsil Chirmiri, Post Haldi Badi, District Koriya (C.G.)

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... Petitioner(s)

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versus

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1. Smt. Chandramani Devi Kushwaha D/o Late Laxman Kushwaha Aged About 63 Years W/o Dadan Ram Kushwaha, Caste Koiri, R/o Ward No. 03, Dairy Farm Road, Gandhinagar, Ambikapur, Police Station Gandhinagar, Post And Tehsil Ambikapur, District Sarguja (C.G.)

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2. Smt. Kalawati Kushwaha D/o Late Laxman Kushwaha Aged About 67 Years W/o Late Devnath Kushwaha, Caste Koiri, R/o House No. 65, Devlapara, Bhaiyathan, Police Station And Tehsil And Post Bhaiyathan, District Surajpur (C.G.)

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3. Ravikant Singh S/o Late Shri Narendra Singh Aged About 43 Years Caste Rajput, Profession Sale And Purchase Of Land R/o Pratappur Road, Village Sargawa, Ambikapur, Post Sakalo, Police Station Gandhinagar, Tehsil Ambikapur, District Sarguja (C.G.)

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4. Dinesh Kumar Singh S/o Ramadhar Singh Aged About 56 Years Caste Rajput, Profession Advocate, R/o In Front Of Mishra Hotel, Gandhinagar, Behind Holy Cross School, Banaras Road, Ambikapur, Police Station Gandhinagar, Tehsil And Post Ambikapur, District Sarguja (C.G.)

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5. Bharat Singh S/o Shri P.S. Sisodiya Aged About 45 Years Caste Rajpur, Profession Politics And Business Of Land Sale And Purchase, R/o Sai Mandir Road, Rawat Residency, Bhagwanpur, Ambikapur, Police Station Gandhinagar, Tehsil And Post Ambikapur, District Sarguja (C.G.)

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6. Neeraj Prakash Pandey S/o Shri Ved Prakash Pandey Aged About 44 Years Caste Brahman, Profession Business Of Sale And Purchase Of Land, R/o H. No. 12/192, Ring Road, Near Mahamaya Petrol Pump, Namnakala, Ambikapur, Police Station Gandhinagar, Tehsil And Post Ambikapur, District Sarguja (C.G.)

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7. Rajesh Singh S/o Shri Lalji Singh Aged About 48 Years Caste Rajput, Profession Busiiness Of Sale And Purchase Of Land, R/o Godhanpur, Ambikapur, Police Station Gandhinagar, Tehsil And Post Ambikapur, District Sarguja (C.G.)

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8. Nilesh Singh S/o Shri Niranjan Singh Aged About 43 Years Caste Rajput, Profession Politician And Business Of Sale And Purchase Of Land, R/o Sarpanchpara, In Front Of Central School Village Bhagwanpurkhurd, Police Station Gandhinagar, Tehsil And Post Ambikapur, District Sarguja (C.G.)

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9. State Of Chhattisgarh Through Collector, Surguja, Ambikapur, District Sarguja (C.G.)

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10. Vijay Soni S/o Indradev Soni Aged About 54 Years R/o Mohallan Mayapur, Ambikapur, District Surguja (C.G.)

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... Respondent(s)

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(Cause Title is taken from Case Information System)

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For Petitioner	: Mr. Rajeev Shrivastava, Senior Advocate along with Mr. Sajal Gupta, and Ms. Anu Mishra, Advocates
For Respondents No. 1 and 2	: Ms. Aditi Joshi, Advocate holding the brief of Ms. Chetna Sharma, Advocate
For Respondent No. 3	: Mr. Sanjay Pathak, Advocate
For Respondent No. 4	: Mr. A.N. Bhakta, Advocate along with Mr. Vivek Bhakta, Advocate
For State/Respondent No. 9	: Mr. Pramod Ramteke, Panel Lawyer

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Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

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27.01.2025

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The petitioner/plaintiff has filed this petition challenging therein the order passed by III rd Additional District Judge, Surguja Ambikapur in Civil Suit No. 2A/2020 dated 13.04.2023, whereby an application moved by defendant No. 4 under Order 1 Rule 10(2) of CPC has been allowed.

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The facts of the present case are that the plaintiff and defendants No. 1 & 2 entered into an agreement on 24.02.2017. The plaintiff agreed to purchase the suit property in consideration of Rs. 1,00,00,000/- and the advance amount of Rs. 26,48,000/- was paid to defendants No. 1 & 2 through defendants No. 3 & 4 on various dates. Defendants No. 1 & 2 failed to execute the registered sale-deed in favour of the plaintiff; therefore, a legal notice was sent through an Advocate, and thereafter, a Civil Suit was filed for the specific performance of contract against the defendants including

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the mediators, namely, Ravikant Singh and Dinesh Kumar Singh. During the pendency of the Civil Suit, defendant No. 4, namely, Dinesh Kumar Singh moved an application under Order 1 Rule 10(2) of CPC to delete his name from the array of defendants on the ground that no relief has been sought against him and he has not played any role in the execution of the agreement to sell.

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The plaintiff filed a reply to the said application and stated that in para 7 of the plaint, a chart has been prepared where according to entry No. 18, Rs. 70,000/- in cash was received by Dinesh Kumar Singh on 24.08.2017.

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The learned trial Court vide order dated 13.04.2023 held that in the chart prepared in the plaint, at para 7 there is a name of one Juman Mansuri, but he has not been arrayed as defendant. It is also held that the plaintiff has filed the suit for the specific performance of contract and defendant No. 4 is not a party to that agreement; therefore, an effective decree can be passed in the absence of respondent No. 4, and thus, allowed the application.

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Learned Senior Advocate appearing for the petitioner would submit that defendant No. 4 has played a pivotal role in the execution of the agreement between the plaintiff and defendants No. 1 & 2. He would further submit that Rs. 70,000/- was received by defendant No. 4 on 24.08.2017 and a receipt was given by him. He would also submit that in the relief clause, the plaintiff has sought the relief of specific performance of contract and the registration of sale-deed in favour of the plaintiff and in the alternative, the refund of Rs. 26,48,000/- from the defendants. He would contend that relief is also sought against defendant No. 4, and thus, the learned trial Court committed an error of law in allowing the application.

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On the other hand, Mr. A.N. Bhakta, counsel appearing for respondent No. 4/defendant No. 4 would oppose. He would submit that Rs. 70,000/- was

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refunded by defendant No. 4 to the plaintiff and it is an admitted fact as the anticipatory bail was granted to defendant No. 4 on this ground alone. He would further submit that the plaintiff has not sought any relief against defendant No. 4; therefore, he is not a necessary party. He would also submit that the suit is filed by the plaintiff for the specific performance of contract and an effective decree can be passed in the absence of defendant No. 4; therefore, the learned trial Court rightly allowed the application moved by defendant No. 4. It is contended that Juman Mansuri has not been arrayed as a defendant, whereas, Rs. 35,000/- was received by him. It is further contended that defendant No. 4 proved the fact that the amount of Rs. 70,000/- has already been refunded by adducing evidence as a witness; therefore, the learned Court below rightly allowed the application. In support thereof, he placed reliance on the judgment passed by the High Court of M.P. in the matter of Kanchan Singh Kushwah vs. Abdul Hanif and others reported in 2014 (II) MPWN 112.

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On the other hand, learned Advocates appearing for the other respondents would oppose the submissions made by Mr. Shrivastava.

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I have heard learned counsel appearing for the parties and perused the documents placed on record.

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Admittedly, the plaintiff filed a suit for the specific performance of contract. An agreement was entered into between the plaintiff and defendants No. 1 & 2 on 24.02.2017. In installments, the plaintiff paid Rs. 26,48,000/- to defendants No. 1 & 2 through defendants No. 3 & 4. Defendants No. 1 & 2 in their written statement categorically stated that the consideration amount has been received by defendants No. 3 & 4.

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10. It is also pleaded in the written statement by defendants No. 1 & 2 that most of the time; defendant No. 4 received the consideration amount on

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behalf of defendants No. 1 & 2. In the prayer clause, the plaintiff has sought relief to decree the suit for the specific performance of contract and in the alternative, the refund of the earnest amount from all the defendants.

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11. Order 1 Rule 10(2) of CPC states that the Court may strike out or add parties, Order 1 Rule 10(2) of CPC is reproduced herein-below:-

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Order I

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“10 (2) Court may strike out or add parties. - The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.”

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12. Defendant No. 4 moved an application under Order 1 Rule 10(2) of CPC inter alia on the ground that he is not a necessary party as he is not a party to the agreement entered into between the plaintiff and defendants No. 1 & 2. The learned trial Court allowed the said application on the ground that he was not a party to the agreement.

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13. In the matter of Kanchan Singh Kushwah (supra), the High Court of M.P. held that Order 1 Rule 3 of CPC is not applicable to the suit for the specific performance of an agreement to sell where a person was not a party to the agreement. Para 5 reads as under:-

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“5. Having perused the impugned order and the material

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placed on record, this Court is of the opinion that the trial Court has not committed any error of law or jurisdictional error

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warranting interference under Article 227 of the Constitution of India. The basic principle as regards necessary party is one without whom no order can be made effectively. As a matter of fact, Order I Rule 3 CPC is not applicable to the suit for specific performance of an agreement to sell where a person was not a party to the agreement, therefore, it cannot be said that without his presence the dispute as regards specific performance of an agreement to sell cannot be determined. Hence, such person cannot be said to be necessary party.”

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14. In the cited judgment, the provisions of Order 1 Rule 3 of CPC have been dealt with which deals with who may be joined as the defendants. Though it is observed that the provisions of Order 1 Rule 3 of CPC are not applicable to the suit for the specific performance of an agreement to sell, but in the present case, application was moved by respondent No. 4 under Order 1 Rule 10 (2) of CPC, and thus, the provisions of law discussed in the cited judgment is different. Further, in the present petition, the plaintiff has made allegations against defendant No. 4 that he received part of consideration amount and signed the document and relief has been sought against defendant No. 4 including the refund of the money advanced.

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15. It is also observed by the learned trial Court that Juman Mansuri, who also received Rs. 35,000/- from the plaintiff, has not been arrayed as a defendant. It is for the plaintiff to claim relief against any of the defendants or all defendants and the Court cannot compel the plaintiff to array a particular defendant to claim certain relief.

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16. Taking into consideration the above-stated facts, in the opinion of this Court, the learned trial Court committed an error of law while allowing the application moved under Order 1 Rule 10(2) of CPC. Therefore, the order passed by the learned III rd Additional District Judge, Surguja (Ambikapur)

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dated 13.04.2023 is hereby quashed.

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17. Accordingly, the instant petition is hereby allowed .

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18. Defendant No. 4 would be at liberty to take the defence available to him

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under the law before the learned Court below. d

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Sd/-