1. Heard.

2. By this petition under Article 226 of the Constitution of India, the petitioner seeks to challenge the order dated 7.9.2012 passed by III Additional Civil Judge, ClassII, Guna in civil suit No.10A/2012 whereby petitioner’s application under Order 1 Rule 3 CPC has been rejected.

3. Facts necessary for disposal of this petition in narrow compass are that a suit for specific performance of an agreement to sell has been filed by one, Abdul Hanif S/o Abdul Saleem against Daulat Singh S/o Shobharam in respect of land falling in survey No.52/3 admeasuring 0.270 hectare situated in village Saktpur, Patwari Halka No.74, tehsil and district Guna (hereinafter referred to as ‘the suit land’). The petitioner/applicant has filed an application under Order 1 Rule 3 CPC inter alia contending that a suit for declaration, possession and partition between the petitioner and defendant, Daulat Singh is pending consideration before the Civil Judge, Class II, Guna. It is further submitted that the petitioner and defendant, Daulat Singh are son and father and, therefore, they are interested parties. As such, the petitioner/applicant ought to have been arrayed as defendant. Hence, the applicant be ordered to be added as defendant in the lis. The said application was contested with the submission that the agreement to sell was entered into between the plaintiff and the defendant, Daulat Singh in respect of the suit land. The applicant is not party to the agreement to sell. The applicant has no concern with the aforesaid survey No.52. No partition has been effected between the defendant and the applicant and, therefore, the application is misconceived and deserves to be dismissed.

4. Trial Court has rejected the application on the premise that the suit is for specific performance of an agreement to sell. The issue to be addressed upon by the trial Court is as regards factum of existence of an agreement to sell the suit land and whether the plaintiff is entitled for specific performance of agreement to sell. Therefore, the application under Order 1 Rule 3 CPC was found to be misconceived and accordingly dismissed.

5. Having perused the impugned order and the material placed on record, this Court is of the opinion that the trial Court has not committed any error of law or jurisdictional error warranting interference under Article 227 of the Constitution of India. The basic principle as regards necessary party is one without whom no order can be made effectively. As a matter of fact, Order 1 Rule 3 CPC is not applicable to the suit for specific performance of an agreement to sell where a person was not a party to the agreement, therefore, it cannot be said that without his presence the dispute as regards specific performance of an agreement to sell cannot be determined. Hence, such person cannot be said to be necessary party.

6. The Hon’ble apex Court reported in (1995) 3 SCC 147, Anil Kumar Singh v. Shivnath Mishra alias Gadasa Guru has held as under :

“4. Equally, Order 1, Rule 3 is not applicable to the suit for specific performance because admittedly, the respondent was not a party to the contract. Rule 3 of Order provides that :

“3. Who may be joined as defendants— All persons may be joined in one suit as defendants where—

(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and

(b) if separate suits were brought against such persons, any common question of law or fact would arise.”

5. In this case, since the suit is based on agreement of sale said to have been executed by Mishra, the sole defendant in the suit, the subsequent interest said to have been acquired by the respondent by virtue of a decree of the Court is not a matter arising out of or in respect of the same act or transaction or series of acts or transactions in relation to the claim made in the suit.”

7. In the instan