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2013 Supreme(All) 1661

ALLAHABAD HIGH COURT
BEFORE : PANKAJ MITHAL, J.
PHULGEN AND OTHERS ....Petitioners
Versus
VINAY KUMAR TIWARI .....Respondent
(Civil Misc. Writ Petition No. 38524 of 2012, decided on 2nd July, 2013)

Advocates Appeared:
Anil Kumar Aditya for the Petitioners; Ram Niwas Singh, S.C., Vinod Kumar Chandel and Vinay Kumar Singh Chandel for the Respondent.

Headnote:(A) Specific Relief Act, 1963—Section 19—Code of Civil Procedure, 1908—Order I Rule 10(2)—Suit—Specific performance—Impleadment of party, subsequent purchaser—Entitlement of—The Court while adding a party as defendant in a suit only required to see as to whether the said party was a necessary or proper party—In present case, the subsequent purchasers were actually transferee pendente-lite, held to be proper party to the suit for specific performance of an agreement to sell—If the revisional Court below by the impugned order permitted their impleadment on the application of the plaintiff-respondent, no exception to it could be taken in law—Order impugned suffers from no illegality or error of law. [Paras 48 to 50]

       (B) Constitution of India, 1950—Article 226—Writ jurisdiction—Exercising of—While exercising writ jurisdiction, it was not proper to undo an illegal order which might had an effect of reviving of another illegal order. [Para 54]

       

JUDGMENT

Hon’ble Pankaj Mithal, J.—In this writ petition under Article 226 of the Constitution of India, I am to consider the right of the plaintiff/respondent to seek impleadment of subsequent purchasers, to be precise of transferee pendente lite as defendants in a suit for specific performance of an agreement to sell and the consequential amendment thereto in the plaint.

2. The facts of the case in a capsule form are as under:

3. The plaintiff/respondent instituted Original Suit No. 466 of 2009 on 28.5.2009 for specific performance of an agreement to sell dated 29.1.1991. The defendant/petitioners in the said suit filed their written statement on 30.8.2010 so as to contest the same and in one of the paragraphs of the written statement they pleaded that the property has been transferred by them on 12.4.2010 and 13.4.2010 by two sale-deeds in favour of Smt. Sheela Devi, Anita Gupta, Sangita Gupta, Krishnawati Devi, Anil Kumar and Dinesh Singh.

4. In view of the pleadings in the written statement, plaintiff/respondent moved application for impleadment of the aforesaid subsequent purchasers and for consequential amendment of the plaint seeking declaration of the aforesaid two sale-deeds as null and void. The applications were rejected by the Court of first instance vide order dated 15.11.2011 whereupon the plaintiff/respondent preferred civil revision No. 185 of 2011. The revision has been allowed and the impleadment with consequential amendments has been permitted by the impugned order dated 6.7.2012.

5. The defendants to the suit have invoked the writ jurisdiction of this Court challenging the aforesaid revisional order.

6. Sri Anil Kumar Aditya and Sri R.N. Singh, learned counsel for the parties were heard and they agreed for disposal of the writ petition on the averments in the petition without waiting for any counter-affidavit.

7. Sri Anil Kumar Aditya has raised two submissions that in a suit for specific performance subsequent purchasers are not necessary and property party. Secondly, against the rejection of the impleadment application the revision was not maintainable and, therefore, the revisional order is without jurisdiction.

8. Sri R.N.Singh in reply submitted that adding of the subsequent purchasers in the suit cause no prejudice to the defendant/petitioners. The plaintiff/respondent is the master of his suit and is the best person to decide about his adversaries and the defendant/petitioners have no concern with their addition. Therefore, no indulgence should be granted in exercise of writ jurisdiction.

9. In this petition I am concern only with the addition of parties as defendants in the suit for specific performance of an agreement to sell. Therefore, I would be referring to the addition of party in context with a suit for specific performance instead of substitution and deletion of parties in general.

10. A person is a party to a suit if there is cause of action for him or against him. The First Schedule to the Code of civil Procedure in Order I provides for the parties to the suits to mean plaintiffs and defendants.

11. Order 1 Rule 10 CPC enables the Court to add any person as a party at any stage of the suit if his presence before the Court is necessary, in whose absence effective relief in the suit cannot be granted or to effectively and completely adjudicate upon and settle all the issues involved in the suit. Avoidance of multiplicity of proceedings may also be recognised as one of the objects enabling the Court to add any person as a party to a suit.

12. Order I Rule 10 (2) CPC which is relevant for addition or deletion of parties to a suit reads as under :

“(2) Court may strike out or add parties.—

The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have bee



































































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