Allowed

Usha Rajput v. Mohinder Kumar and Ors.

J&K HC12 Aug 2021OW104/82/2014

Case brief

AI extract

What is this about?

The High Court allowed a supervisory petition to set aside a trial court order impleading the petitioner as a party defendant. The bench held that in a suit for specific performance, only the contract parties are necessary. Impleadment based on alleged interim order violation was improper without prior adjudication on that violation. The order was set aside.

What did the court decide?

The impugned order dated 24.05.2014 impleading the petitioner as a party defendant in the suit was set aside.

Usha Rajput Vs Mohinder Kumar and Ors. — Specific Performance | J&K HC (2021)

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S. No. 217

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

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OW104 No. 82/2014 IA No. 99/2014

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Usha Rajput

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…Petitioner(s)

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Through :- Mr. Ajay K Gandotra, Advocate

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V/s

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Mohinder Kumar and ors.

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…Respondent(s)

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Through :- None.

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Coram: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

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ORDER

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Supervisory jurisdiction of this Court is being invoked by the petitioner for setting aside the order dated 24.05.2014 (for brevity „impugned order‟) passed by the Court of learned Principal District Judge, Samba (for brevity „trial court‟).

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It is being stated in the petition that the plaintiff-respondent No. 1

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herein filed a suit against respondent Nos. 2 and 3 for seeking specific performance of contract of sale dated 25.03.2009 in respect of the land measuring 10 Marlas covered under Survey No. 38 situated at Village Mandi, Sardhalian, Ward No. 1, Samba.

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A decree for permanent prohibitory injunction too is also stated to have been sought in the said suit for restraining the respondent Nos. 2 and 3 herein from trespassing into or interfering with the plaintiff‟s peaceful possession and the enjoyment thereof by raising any construction or alienating the same or any portion thereof.

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2 OW104 No. 82/2014

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It is being stated that the respondent Nos. 2 and 3 filed written statements before the trial court to the suit filed by respondent No. 1, alleging therein that the agreement to sell has been prepared by playing fraud and that the said agreement to sell is not enforceable in law. The possession of the plaintiff-respondent No. 1 herein qua the suit land was also denied by the respondent Nos. 2 and 3 herein in their written statement.

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It is being stated that issues in the suit were framed by the trial court and the plaintiff-respondent No. 1 led evidence. It is being stated that the plaintiff-respondent No. 1 filed an application in terms of Order 1 Rule 10 C.P.C. before the trial court for impleadment of the petitioner herein as party defendant in the suit on the premise that the petitioner connived with the respondent Nos. 2 and 3 herein and intended to raise construction over the suit land.

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Objections are stated to have been filed by the petitioner herein to the said application before the trial court and the trial court is stated to have allowed the said application for impleadment and passed impugned order dated 24.05.2014.

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The impugned order is being questioned inter alia on the grounds that the same has been passed without adverting to the settled position of law for addition of a party in a suit for specific contract as the only parties to the agreement are necessary parties and that the trial court did not exercise its jurisdiction while passing the impugned order in the manner it was required under lawful exercise inasmuch as, the trial court exercised the jurisdiction vested into it while passing the impugned erroneously.

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3 OW104 No. 82/2014

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It has also been urged in the grounds that by impleadment of the petitioner in the suit by the trial court have overlooked the fact that the nature of the suit would get changed.

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Respondent No. 1 has filed objections in response to the petition in hand wherein it is being admitted that a suit for specific performance came to be filed by him before the trial court against the respondent Nos. 2 and 3 and an application for impleadment of the petitioner herein was also filed. The said application is contended to have been filed upon violation of interim order granted by the trial court in favour of respondent No. 1 herein by the present petitioner while raising construction over the suit land and installing an iron gate thereof. The petitioner herein is contended to be a necessary and proper party and that the trial court rightly impleaded the petitioner herein as a party defendant in the suit in terms of the impugned order.

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Heard learned counsel for the petitioner and perused the record.

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The law in regard to impleadment of a party is envisaged in Order 1 Rule 10(2) C.P.C. which for reference is produced and extracted hereunder:-

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“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, order that the name of any such 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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4 OW104 No. 82/2014

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A bare perusal of the aforesaid provision postulates that in an application for impleadment, the Court would consider as to whether presence of the applicant before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the proceedings.

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Indisputably the suit is filed for specific enforcement contract/agreement to sell. The parties to the agreement, thus are the necessary and proper parties whose presence before the Court would be necessary for determining the real issues involved in the suit effectively and conclusively. The impleadment of the petitioner has been sought merely on the ground that the petitioner violated the interim order passed allegedly by raising construction over the suit land and installing an iron gate. The trial court was required to adjudicate upon the veracity or otherwise of the violations of the court order alleged by the plaintiff/respondent No. 1 in the first place. Before determining the said question, the trial court ought not to have proceeded on the assumption that the petitioner is a necessary and proper party to the lis . The impugned order is passed on the wrong assumption and premise and thus, is not sustainable. The order, as such, is set aside. Petition is allowed.

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Disposed of.

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(JAVED IQBAL WANI) JUDGE

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Jammu 12.08.2021 Angita

Usha Rajput v. Mohinder Kumar and Ors.

Case brief

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Usha Rajput v. Mohinder Kumar and Ors.

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