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2009 Supreme(Raj) 82
[Citation : 2009(4) RLW 2906 (Raj.)]
(Rajasthan High Court)
Jaipur Bench
Moolchand Bothra Vs. A.D.J. & Ors. (Roy, CJ.)
HON'BLE NARAYAN ROY, CJ.
HON'BLE RAGHUVENDRA S. RATHORE, J.
Moolchand Bothra
Versus
Addl. District Judge & Ors.
D.B. Civil Special Appeal (Writ) No. 1373 of 2008, decided on 20.1.2009
N.K. Maloo, for Appellant;
Alok Sharma, for contesting Respondent No. 3;
J.R. Tantia, for Respondent No.2.
Headnote:C.P.C., Order 1 Rule 10 — Necessary party — Impleadment thereof — Suit for specific performance of agreement — Maintainability — Held — In a case when some semblance of title or interest is shown by the parties, even in a suit for specific performance of a contract, it would be just and proper to allow such application for addition of party to avoid multiplicity of litigation — 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 — If `C can show a fair semblance of title or interest, he can certainly file application for impleadment. (Paras 6 to 10)
Appeal dismissed.
fl-iz-la-] vknsk 1 fu;e 10 & vko;d i{kdkj & i{kdkj cukuk & djkj dh fofufnZ"V vuqikyukFkZ okn & iks"k.kh;rk & vfHkfu/kkZfjr & fdlh ekeys esa i{kdkjksa }kjk LoRo ;k fgr dk dksbZ Lo:i nkkZ;k tkrk gS rks lafonk dh fofufnZ"V vuqikyukFkZ okn esa Hkh eqdnesackth dh ckgqY; ls cpus gsrq i{kdkj cukus gsrq ,sls vkosnu dks Lohdkj djuk U;k; laxr o mfpr gksxk & bls iw.kZ izfriknuk ds :i esa vf/kdfFkr ugha fd;k tk ldrk gS fd tc dHkh Hkh ^d* ds }kjk ^[k* ds fo:) fofufnZ"V vuqikyukFkZ okn nk;j fd;k tkrk gS rks ml okn esa ^x* dks r`rh; i{kdkj ds :i esa lfEefyr ugha fd;k tk ldrk & ;fn ^x* LoRo ;k fgr dk dksbZ mfpr Lo:i nkkZrk gS rks og fufpr :i ls i{kdkj cuus gsrq vkosnu nk;j dj ldrk gSA ¼in la[;k 6 ls 10½
vihy [kkfjt dhA
Hon'ble ROY, CJ.—Heard learned counsel for the parties.
2. The writ application filed by the appellant challenging order of the Court below allowing application under Order 1 Rule 10 of the Code of Civil Procedure filed on behalf of respondent No. 3, was dismissed after hearing counsel for the parties.
3. Mr. Maloo, learned counsel appearing on behalf of the appellant contended that in a suit for specific performance of the agreement, application under Order 1 Rule 10 CPC would not be maintainable and therefore, the Court below and the learned Single Judge of this Court erred in allowing application under Order 1 Rule 10 CPC. Learned counsel further submitted that since the suit for specific performance was in between the parties, who had agreed to sell the land in question, third person's interference would not be permissible as it would change the scope of the suit for specific performance of a contract. To buttress his argument, learned counsel relied upon a decision of the apex Court in case of Kasturi vs. Iyyamperumal & Ors., (2005) 6 SCC page 733. In the light of the judgment, learned counsel submitted that in a suit for specific performance of a contract for sale, the issue to be decided is the enforceability of the contract entered into in between the parties and no outside interference, therefore, would be permissible.
4. Mr. Alok Sharma, learned counsel appearing on behalf of contesting respondent No. 3 on the contrary submitted that the disputed property was already purchased by the respondent No. 3 by agreement dated 23.12.1995 and therefore, he had semblance of title and interest over the suit land and thus, he was necessary party and rightly therefore his application under Order 1 Rule 10 CPC was allowed. He further submitted that the agreement entered into in between the plaintiff and respondent No. 2 was dated 14/16.2.2004 which admittedly was a subsequent transaction and in this background, the Court below and the learned Single Judge of this Court were well within their jurisdiction to allow application under Order 1 Rule 10 CPC filed on behalf of respondent No. 3. In support of his contention, learned counsel relief upon a decision of the Apex Court in case of Sumtibai & Ors. vs. Paras Finance Co. and Ors. (2007) 10 SCC 82.
5. We have carefully examined the materials ion record and the impugned order. It appears that the court below in view of the averments made in paras 6 and 8 of the plaint where there was reference about respondents No. 2 and 3 pertaining to an agreement for sale of the property coupled with the application filed on behalf of respondent No. 3 under Order 1 Rule 10 CPC, allowed the same as the respondent No. 3 had semblance of title and interest over the property in question and for just adjudication, it was held that respondent No. 3 would be the necessary party.
6. It is undisputed that some reference was made with regard to agreement in between the respondents No. 2 and 3 in paras 6 and 8 of the plaint and an application was filed for addition of party so far as respondent No. 3 was concerned. The Court below and the learned Single Judge of this Court, on appreciation of facts, therefore, were well within their jurisdiction to allow the application impleading respondent No. 3 as party-defendant for doing complete justice and for effective adjudication of the matter. In a case when some semblance of title or interest is shown by the parties, even in a suit for specific performance of a contract, it would be just and proper to allow such application for addition of party to avoid multiplicity of litigation. In this background, the learned Single Judge of this Court had not committed any jurisdictional error in affirming order passed by the Court below allowing application under Order 1 Rule 10 CPC.
7. In the case of Kasturi (supra), the apex Court observed and held:-
"As discussed herein earlier, whether Respondents 1 and 4 to 11 were proper parties or not, the governing principle for de
