Specific performance of a contract can be enforced by any party to the contract, and if some of the parties entitled to the benefit of the contract are not willing to be arrayed as plaintiffs, they should be impleaded as defendants.

Vinod K. Sharma, J. (Oral) - The present regular second appeal has been filed against the judgment and decree passed by the learned courts below decreeing the suit filed by the plaintiff-respondent for specific performance of the contract.

2. The suit was filed on the allegation that the agreement was entered into between the parties on 6.11.1999 vide which defendant Nos. 1 to 3 had agreed to sell land measuring 4 bighas in favour of the plaintiff and defendant No. 4 in the ratio of 2:1. It was also alleged that a sum of Rs. 2,40,000/- was paid to the defendant Nos. 1 to 3 as earnest money. However, no date for the execution of the sale-deed was fixed. It was the case of the plaintiff- respondent that he went to the office of Sub-Registrar, Ahmedgarh on 6.6.2000 for execution of sale-deed along with the remaining sale consideration and, therefore, waited for the defendant Nos. 1 to 3 in the compound of Sub- Registrar, Ahmedgarh, but they did not come present. It was also case of the plaintiff that he had got his presence recorded on 6.2.2002 before the Sub- Registrar, Ahmedgarh. But the defendant-appellants did not come present. It was further pleaded in the plaint that defendant Nos. 1 to 3 were requested several times to execute the sale-deed of the suit land, but they did not show their readiness and willingness to execute the sale. It was also pleaded that few days before filing of the suit, the defendants refused to execute the sale-deed in favour of the appellants and were trying to alienate the land to other person. On notice being issued in the suit, defendant Nos. 1 to 3 appeared in Court but in spite of availing number of opportunities they failed to file written statement and ultimately the defence of defendant Nos. 1 to 3 was struck off. Defendant No. 4 was also proceeded ex parte. The agreement to sell was proved by producing marginal witnesses and the plaintiff also stepped into witness-box as PW-2. He also examined PW-3 Suresh Kumar, Clerk, office of Sub-Registrar, Ahmedgarh as well as Head Constable Gurwinder Singh PW-4.

3. The learned trial Court accepted the case set up by the plaintiff and decreed the suit. The appeal filed by the appellants also failed.

4. Consequently, in this regular second appeal, the learned counsel, Mr. Mutneja appearing on behalf of appellants, vehemently contended that as defendant No. 4 had failed to appear in the case, no decree for specific performance could be passed. The contention of the learned counsel for the appellants was that if one of the parties to the contract does not institute the suit, then a decree for specific performance cannot be passed and, therefore, the judgments and decrees passed by the learned Courts below cannot be sustained. In support of this contention, learned counsel for the appellants placed reliance upon judgment of the Honble Supreme Court in Mukesh Kumar and others v. Col. Harbans Waraich and others, 1999(9) SCC 380, wherein the Honble Supreme Court had been pleased to lay down as under :

"....6. Specific performance of a contract can be enforced by any party to the contract. If there are more parties than one, specific performance of a contract cannot be decreed in the absence of some of the parties to the contract. If some of the parties entitled to the benefit of the contract are not willing to be arrayed as plaintiffs they should be impleaded as defendants. Section 239(a) of the Specific Relief Act (now Section 22) covers such a case. In Nirmala Bala Dasi v. Sudarsan Jana it is held that one of the co-promisees may sue for specific performance making the other co- promisees as defendants. Judgment can be given in favour of the persons interested whether they are joined as plaintiffs or as defendants. (see Monghibai v. Cooverji Umersey). In a case where property was agreed to be transferred to three co- promisees and all the three filed a suit for specific performance of the contract but only one of them came to the witness box in supp