IMPORTANT POINT
Necessary Party - Once the disputed property has been sold in favour of applicant through agreement he is a necessary party in the proceedings.

P.S. PATWALIA, J. (ORAL)

1. The present revision petition has been filed against an order dated 21.7.2004 whereby the learned Civil Judge, Junior Division, Ludhiana has allowed an application under Order 1 Rule 10 of the Code of Civil Procedure filed by respondent-Upkar Singh.

2. A perusal of the facts would show that Jaswinder Singh and another filed a suit against their father-Ran Singh for permanent. Injunction restraining him from creating an encumbrance in any manner over the suit property. In that suit, an application was filed by one Upkar Singh, respondent No.2 (herein) for being impleaded as a party in the suit on the plea that Ran Singh had already sold property to him vide agreement dated 24.7.2002 and had received full payment except a sum of Rs. 20,000/- being mortgage money. The applicant stated that the defendant. Ran Singh had no surviving interest in the property. It was, therefore, pleaded that the applicant was a necessary party.

3. In the present revision petition Ran Singh was impleaded as respondent No.1. After notice of motion was issued, efforts were made to serve Ran Singh. However, he has remained unserved. Today, it was brought to my notice by the reamed counsel for the petitioner, on instructions from his clients, that in all likelihood Ran Singh is since living abroad and has settled in the United States of America.

4. The trial Court allowed the application. The operative part of the order is as under:

“Agreement in favour of Upkar Singh is placed on record wherein Ran Singh is selling his land to Upkar Singh and claims to have received entire consideration except Rs,20,000/-. Possession is given. In the light of all these circumstances, Upkar Singh seems to be necessary and proper party to be impleaded herein because result of this suit will certainly effect his rights and by virtue of agreement in his favour and result of passing of possession to him, adjudication in his absence will not arrive at logical end and will given rise to further litigation making the matters more complicated. It is always proper as well as in interest of justice to decide the rights of parties in one suit itself without giving rise to multiplicity of litigation and without complicating the matter further. Plaintiff is to prove his right and nature of suit property independently and is not going to suffer any legal injury if Upkar Singh is impleaded as party. Rather, it will be helping in better adjudication and will give opportunity to plaintiff to bring evidence against the claim of Upkar Singh also. If Upkar Singh files a separate suit claiming his right over the land therein also plaintiff will have to bring evidence to contradict his claim. Hence, considering it to be very much in interest of justice, application of Upkar Singh u/o Rule 10 CPC is ordered to be allowed.”

5. Learned counsel for the petitioners after relying on the judgment rendered by Hon’ble the Supreme Court in Kasturi v. Iyyamperumal & others, 2005(2) Civil Court Cases 379(S.C.) vehemently contended that for deciding the question as to who is proper party in suit for specific performance, the guiding principle is whether the presence of such a party is necessary to adjudicate the controversy involved in the suit. The question has to be decided keeping in mind the scope of the suit. Still further, learned counsel contended that the plaintiff is the dominus litus and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law. He further argues that his suit can be very well decided even in the absence of respondent No.2. He also submits that being dominus litus, he cannot be forced to litigate against parties with which according to him he has no lis.

6. As against this, counsel for the respondent supported the order made by the trial Court and argued that since the property, the subject matter of dispute in the present suit, has been sold by Ran Singh to her client and possession ha