A revision petition challenging the impleadment of a party holding a decree and possession in a specific performance suit was dismissed. The court relied on Supreme Court precedent to allow impleadment but directed expedited trial.
Trial court directed to conclude proceedings within 6 months from receipt of this order.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CR No. 3876 of 2008 [1]
In the High Court of Punjab & Haryana at Chandigarh
Civil Revision No. 3876 of 2008 (O&M)
Date of decision : 23.3.2009
Bachan Lal ..... Petitioner
vs
Kishan Kumar and others
..... Respondents
Coram: Hon'ble Mr. Justice Rajesh Bindal
Present: Mr. Raj Kumar Gupta, Advocate, for the petitioner.
Mr. S. S. Grewal, Advocate, for respondent no. 1.
Mr. B. S. Saini, Advocate, for respondents no. 2 to 5.
Rajesh Bindal J.
The plaintiff has approached this court challenging the order dated 29.5.2008 passed by the learned court below whereby in an application filed by respondent no. 1 under Order I Rule 10 CPC, he has been permitted to be impleaded as one of the defendants in the suit.
Briefly, the facts of the case are that the petitioner/plaintiff filed a suit for possession by way of specific performance against respondents no. 2 to 5 (for short, 'the vendors') with the plea that vide agreement to sell dated 20.4.2001, respondents no. 2 to 5 had agreed to sell the property in dispute to the petitioner for a total sum of Rs. 1,30,000/-. The last date fixed for execution of the sale-deed was 20.6.2001. The same having not been executed by the vendors, a suit for possession by way of specific performance of agreement to sell was filed on 2.5.2002. It was in this suit that respondent no. 1 at the fag end, when the same was fixed for arguments, filed application for being impleaded as one of the defendants. The same having been allowed, the petitioner/plaintiff is before this court.
Narrating the facts in detail, learned counsel for the petitioner submitted that in the suit filed for possession by way of specific performance of agreement to sell, respondent no. 1 is not at all concerned, he is neither necessary nor a proper party. The suit was filed by the petitioner on 2.5.2002, the application for being impleaded as party was filed by respondent no. 1 on 24.8.2007 at the time when the same was fixed for arguments. He further submitted that in fact the object is just to delay the disposal of the suit.
CR No. 3876 of 2008 [2]
Still further, it was submitted that inspite of the fact that there was interim stay in the suit filed by the petitioner, respondent no. 1 filed suit for possession by way of specific performance of the same property against respondents no. 2 to 5 on 9.8.2003. During the pendency of the present suit, respondents no. 2 to 5, without disclosing the factum of pendency of the present suit with regard to the same property, filed written statement admitting the claim of respondent no. 1 and in terms thereof the suit was decreed in favour of respondent No. 1 on 24.11.2004. In fact, it was a collusive suit between respondent no. 1 and respondents no. 2 to 5 filed just with a view to deny the rightful claim of the petitioner.
Immediately after coming to know about the decree passed in favour of respondent no. 1, the petitioner filed a suit for declaration challenging judgment and decree dated 24.11.2004, on 12.1.2005 in which interim stay was granted. Though respondent no. 1 had knowledge about the pendency of the present litigation way back in January 2005 but still no application for being impleaded as one of the defendants in the suit was filed till 24.8.2007. It was further submitted that it is settled law that a stranger is neither necessary nor a proper party in a suit for possession by way of specific performance and respondent no. 1 in the present case is clearly a stranger. Presence of respondent no. 1 is not necessary for adjudication of the claim made by the petitioner in the suit. Reliance was placed upon Kasturi vs Iyyamperumal & Ors. 2005 (2) Civil Court Cases 379 (SC), Bharat Karsondas Thakkar vs M/s. Kiran Construction Co. & Ors. 2008 (2) Civil Court Cases 561 (SC), Nafe Singh vs Krishana and others, 2004 (3) Indian Civil Cases 784, Minati Ghosh vs Lakshmi Narayan Sarkar and others , 2004 (1) Indian Civil Cases 332.
On the other hand, learned counsel for respondent no. 1 submitted that the agreement to sell executed by respondents no. 2 to 5 is of the same date as was allegedly entered into with the petitioner. Respondent no. 1 had even been handed over the possession of the property. Once a decree has been passed by the learned court below regarding the property in dispute in his favour and against respondents no. 2 to 5, the same cannot be said to be ineffective or collusive till such time the same is set aside. In case respondent no. 1 is not permitted to be impleaded as one of the defendants in the suit, he will not be able to put forth his stand before the court in support of the judgment and decree passed by the civil court in his favour and the result would be multiplicity of litigation. .
Learned counsel for respondents no. 2 to 5 submitted that no agreement to sell was executed by them in favour of the petitioner. It was merely a
CR No. 3876 of 2008 [3]
money transaction for which her thumb impression was taken on some blank papers. The same might have been misused by the petitioner for fabricating the agreement to sell in his favour.
Heard learned counsel for the parties and perused the record.
Hon'ble the Supreme Court in Sumtibai and others v. Paras Finance Co. Mankanwar, 2007(4) RCR (Civil) 524 opined that any person who has even semblance of title or interest in the property can file an application for being impleaded as party to the litigation. In the aforesaid case, Hon'ble the Supreme Court while considering earlier judgments on the issue and also distinguishing Kasturi v. Iyyamperumal, 2005(2) RCR (Civil) 691 opined as under:
“14. In view of the aforesaid decisions we are of the opinion that Kasturi's case (supra) is clearly distinguishable. In our opinion, it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. In our opinion, if C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced.”
As the facts in the present case emerge, regarding the property in dispute, the petitioner has filed a suit for possession by way of specific performance, which is pending before the court below. However, there is a decree of possession passed in favour of respondent no.1, who had been impleaded as a party to the suit. Though a suit filed by the petitioner to challenge the decree passed in favour of respondent no. 1 is pending, but still, in my opinion, considering the aforesaid judgment of Hon'ble the Supreme Court, as on date, respondent no. 1 has a decree passed in his favour regarding the suit property and he can protect his interest very well in case he is impleaded as defendant in the suit. As anomalous position may arise in case in the absence of respondent No. 1 the suit of the petitioner is decreed. It is also not in dispute that respondent No. 1 is presently in possession of the property and for execution of the decree, if passed in favour of the petitioner, the person in possession will have to be heard.
For the reasons mentioned above, I do not find that the learned court below had not committed any illegality in impleading him as one of the defendants in the suit. Accordingly, I do not find any merit in the present petition. The same is
CR No. 3876 of 2008 [4]
dismissed. However, considering the fact that the suit filed by the petitioner was at the fag end when the application was filed by respondent no. 1 for being impleaded as defendant, the trial court is directed to expedite the proceedings of the case and conclude the same within 6 months from the date of receipt of copy of this order.
(Rajesh Bindal) Judge
March 23,2009 mk
2 issues framed by the court
Whether the trial court committed illegality in impleading a third party who holds a decree and possession of the property as a defendant in a suit for specific performance by the vendee.
Whether a stranger to the original agreement to sell can be impleaded to protect existing litigation and avoid multiplicity of proceedings.
Colour shows how this judgement treated each authority
Kasturi vs IyyamperumalDistinguished¶19
Kasturi vs Iyyamperumal & Ors. 2005 (2) Civil Court Cases 379 (SC)
Bharat Karsondas Thakkar vs M/s. Kiran Construction Co.Referred¶19
Bharat Karsondas Thakkar vs M/s. Kiran Construction Co. & Ors. 2008 (2) Civil Court Cases 561 (SC)
Nafe Singh vs KrishanaReferred¶19
Nafe Singh vs Krishana and others, 2004 (3) Indian Civil Cases 784
Minati Ghosh vs Lakshmi Narayan SarkarReferred¶19
Minati Ghosh vs Lakshmi Narayan Sarkar and others, 2004 (1) Indian Civil Cases 332
Sumtibai and others v. Paras FinanceFollowed¶25
Sumtibai and others v. Paras Finance Co. Mankanwar, 2007(4) RCR (Civil) 524
Kasturi v. IyyamperumalDistinguished¶26
Kasturi v. Iyyamperumal, 2005(2) RCR (Civil) 691
1 provisions across 1 enactments
Bachan Lal
Kishan Kumar
Rajesh Bindal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
