A subsequent purchaser is a necessary and proper party, and the trial court must be prima facie satisfied while exercising its discretion to allow the application.

Pradeep Kumar Singh Baghel, J.

The present impleadment application and the objection to the order of the Court below dated 08th May, 2003 have been filed by the subsequent purchasers of the property in dispute, namely, Smt. Seema Makkar, Smt. Geeta Goel, Smt. Laxmi Devi and Smt. Poonam, who are hereinafter referred to as the "applicants".

2. Heard Sri V.P. Varshney and Ms. Suman Jaiswal, learned counsel for the applicants in support of the aforesaid impleadment application and the objection filed by the applicants, and Sri A.P. Srivastava, learned counsel appearing for the plaintiff-respondent.

3. The essential facts, insofar as they are relevant for the purpose of the present impleadment application and objection, are that the plaintiff-respondent instituted an original suit in the Court of the Civil Judge, Saharanpur for specific performance of an agreement to sell dated 10th January, 1975. The said suit was registered as Original Suit No. 123 of 1978 (Sri Ram Niwas Gupta v. Smt. Jamila Khatoon). The defendant-appellant Smt. Jamila Khatoon, since deceased, was owner of the property in dispute, being Khasra No. 163, admeasuring about 825 square yard, situated at Pathanpura, Ahmad Bag, Saharanpur. The plaintiff-respondent's case was that an agreement to sell was executed on 10th January, 1975 by the defendant-appellant Smt. Jamila Khatoon in favour of the plaintiff-respondent to sell the aforesaid plot in dispute for a sale-consideration of Rs.31,350/-. Apart from the plaintiff, his four cousins Rajendra Kumar, Chandra Prakash, Devendra Kumar and Suresh Chandra were also shown to be beneficiaries of the said agreement. The plaintiff-respondent had advanced a sum of Rs.5000/- to the defendant-appellant. When the sale-deed was not executed in terms of the said agreement, the plaintiff-respondent instituted the above-mentioned suit, which came to be decreed vide judgment and decree dated 06th August, 1980 by the Ist Additional District & Sessions Judge, Saharanpur(Court below or trial Court)

4. Aggrieved by the judgment and decree of the Court below, the defendant-Jamila Khatoon filed the instant first appeal, i.e. First Appeal No. 486 of 1980(first appeal), before this Court.

5. During the pendency of the first appeal, defendant Jamila Khatoon died and was substituted by her heirs and legal representatives.

6. The first appeal was allowed by this Court vide judgment and order dated 09th September, 1997, whereby the judgment and decree of the Court below was set aside, suit for specific performance was dismissed and a direction was issued to the defendant to refund the earnest money of Rs.5000/- to the plaintiff with interest @ 9% per annum.

7. Dissatisfied with the judgment of this Court dated 09th September, 1997, the plaintiff-respondent approached the Supreme Court by filing Civil Appeal No. 2246 of 1998, Ram Niwas Gupta v. Mumtaz Hasan and others. The Supreme Court was satisfied that there was a long unexplained delay in filing the suit and the said issue was not adverted to by the High Court. Therefore, the Supreme Court vide its order dated 16th January, 2002 allowed the civil appeal, set aside the judgment and order of the High Court and after framing two issues, remitted the matter to the High Court to decide afresh. The direction of the Supreme Court is extracted herein-below:

"Then the question arises what is the relief which can appropriately be granted to the appellant in this appeal. It is our considered view that the High Court should frame an issue whether there has been unexplained delay on the part of the plaintiff in taking recourse to law in filing suit (though it is filed within the prescribed period of limitation) and whether on facts and in the circumstances of the case such delay defeats the relief of specific performance of the contract for sale of the suit property and call for the finding of the trial court on the issue and on receipt of the same decide the first appeal afresh after giving opportunity