Back
2012 Supreme(Pat) 816
IN THE HIGH COURT OF JUDICATURE AT PATNA
JYOTI SARAN, J.
Mod Narayan Jha – Petitioner
Versus
Kameshwar Jha – Respondent
Civil Writ Jurisdiction Case No. 9553 of 2011 & 5840 of 2012
Decided on: 27-06-2012
For the Petitioner:Mr. Kali Kant Jha, Advocate with, Mr. Manish Jha, Advocate.
For the Respondent:Mr. Pramod Kumar Sinha, Advocate with, Mr. Manish Kumar, Advocate.
A third party becomes a necessary party to a suit for specific performance when affected by the relief sought, especially in the context of delivery of possession, to prevent multiplicity of litigation.
Headnote:
Order-1 - Impleadment in Suit Proceedings - Code of Civil Procedure - [Order-1, rule 10(2), section 151] - The court discussed the provisions of Order-1, rule 10(2) and section 151 of the Code of Civil Procedure in the context of allowing impleadment in suit proceedings. The court emphasized the need to hear a third party in a suit for specific performance, especially when the relief of delivery of possession is sought, and cited the judgment of the Hon’ble Supreme Court in the case of Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotels Private Limited & others, reported in AIR 2010 SC 3109 to support its decision.
Fact of the Case:
The suit was filed for specific performance of an agreement to sale, where the plaintiff sought a decree directing the defendant to execute a sale deed and deliver possession of the land. The intervener-petitioner, claiming to be the brother of the defendant, sought impleadment in the suit proceedings on the grounds that the defendant was traceless since 1967 and that the property in question stood in his exclusive name.
Finding of the Court:
The court found that the intervener-petitioner had the right to be heard in the suit proceedings, especially in the context of the relief sought for delivery of possession. The court emphasized the need to prevent multiplicity of litigation and cited relevant legal principles to support its decision.
Issues: The main issue was whether the intervener-petitioner should be allowed to implead in the suit proceedings, considering the claim that the defendant was traceless and the property stood in the intervener-petitioner's exclusive name.
Ratio Decidendi: The court held that a third party becomes a necessary party to a suit for specific performance when affected by the relief sought, especially in the context of delivery of possession. The court also emphasized the need to prevent multiplicity of litigation and cited relevant legal principles to support its decision.
Final Decision: The orders rejecting the intervener-petitioner's application for impleadment and recall of the previous order were quashed and set aside, allowing the writ petitions without any order as to costs.
1. Heard Mr. Kali Kant Jha, learned counsel appearing on behalf of the intervener-petitioner and Mr. Pramod Kumar Sinha, learned counsel appearing on behalf of the plaintiff-respondents.
2. CWJC No.5840 of 2012 has been filed for quashing the order dated 17.11.2008 passed by the learned Sub-Judge 1st, Darbhanga in Title Suit No.76 of 2006 rejecting the application filed on behalf of the intervener-petitioner under Order-1, rule 10(2) read with section 151 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) seeking impleadment in the suit proceedings.
3. The other writ petition bearing CWJC No.9553 of 2011 was filed for quashing the order whereby the petition filed by the intervener petitioner herein seeking recall of the order dated 17.11.2008 was rejected by the learned Sub-Judge 1st, Darbhanga in Title Suit No. 76 of 2006 vide order passed on 07.05.2009.
4. The facts of the case is in very narrow compass. The suit was filed by the father of plaintiff-respondents herein, late Kameshwar Jha seeking specific performance of agreement to sale to be executed by the brother of the intervener-petitioner herein, namely, Batahu Jha on 29.06.2002. During the course of the present proceedings the copy of the plaint was produced by learned counsel appearing on behalf of the respondents who are substituted legal heirs of the original plaintiff, late Kameshwar Jha. The relief sought in the suit proceedings as set in paragraph 21 of the plaint runs as follows:-
(A) That on adjudication of the facts stated above, a decree for specific performance of contract be passed directing the defendant to execute the sale deed in favour of plaintiff in respect of Schedule-I land within a time stipulated by this court after receiving of the balance consideration money of Rs.35,000/-.
(B) That if the defendant failed to execute the sale deed then sale deed be executed through the process of the court after taking deposit the balance consideration money in court treasury in the name of plaintiff in respect of Schedule-I.
(C) That the delivery of possession over the suit land be given to the plaintiff through the process of the suit.
(D) That the cost of the suit be awarded to the plaintiff.
(E) That any other relief or reliefs for which the plaintiff be deemed entitle be given to the plaintiff.
5. It was the specific case of the original plaintiff-respondent that Batahu Jha, brother of the present petitioner having executed an agreement to sale on 29.06.2002, having accepted part payment of the consideration amount and having agreed to execute the sale-deed on or before 30.06.2003, has refused to perform his part of obligation, hence necessitating the filing of the suit.
6. The intervener-petitioner herein claiming to be the brother of Batahu Jha filed an application under Order 1, rule 10(2) of the Code upon gathering information about the suit in question for seeking impleadment in the same, inter alia, on the grounds that his brother Batahu Jha is traceless since 1967 and thus could not have executed the said Mahadanama which is the basis of the suit and that the property standing in exclusive name of the intervener-petitioner, he was required to be heard in opposition of the claim set out in the suit proceedings. The prayer of the petitioner was rejected by order dated 17.11.2008 impugned in CWJC No. 5840 of 2012, inter alia, on the ground that no document has been filed by the intervener-petitioner supporting his claim regarding Batahu Jha being traceless nor the original plaintiff-respondent herein was seeking any relief against the intervener-petitioner, hence there was no necessity to allow the prayer. The second application was filed on behalf of the intervener-petitioner on 20.12.2008 seeking review/ recall of the order dated 17.11.2008 which has since been rejected on 07.05.2009 impugned in CWJC No.9553 of 2011, inter alia, on the ground that no fresh material was brought by the intervener-petitioner herein warran
