IMPORTANT POINT
Scope of suit for specific performance of a contract for sale cannot be enlarged by changing nature of suit for specific performance and converting same into a title suit between one or either of parties to contract and stranger to contract.

JUDGMENT (CAV)

Mohit Kumar Shah, J.—The present writ petition has been filed for setting aside the order dated 18.12.2012 passed by the learned court of Sub-Judge II, Munger whereby and whereunder the application of the intervenor, namely, Prahlad Prasad Bhagat under Order 1 Rule 10 of the Code of Civil Procedure, 1908 has been allowed and the said Prahlad Prasad Bhagat has been directed to be arrayed as separate category defendant (performa defendant).

2. The brief facts of the case are that an agreement dated 23.2.1987 was prepared by the Respondent no. 2 herein, namely, Dr. Vijay Kumar Bhagat wherein it had been recited that he has received a sum of Rs. 2,95,340/- from Sri Krishna Mohan Bhagat i.e. the petitioner herein for sale of residential building and the rest amount will be paid at the time of registry. It was further stipulated in the said agreement that in case of non-payment or refusal to purchase building, the aforesaid amount shall be returned to the petitioner and the building would be sold to another person.

3. It appears that subsequently, the respondents first party herein did not execute the sale deed upon receipt of the balance amount of sale consideration on one pretext or another, hence, the petitioner had filed Title Suit No. 147 of 1992 for specific performance of contract / agreement before the learned court of Sub-Judge II, Munger. After filing of the aforesaid title suit, a petition was filed by the respondent no. 4 herein under Order 1 Rule 10 of the Civil Procedure Code, 1908 for being impleaded as intervenor in the aforesaid suit, however, the said petition was rejected by an order dated 13.9.1994 passed by the learned trial court and the respondent no. 4 herein did not challenge the said order dated 13.9.1994, hence, the same became final. It appears that subsequently, the respondent no. 4 again filed a petition for impleadment under Order 1 Rule 10 of the Code of Civil Procedure, 1908 on 14.3.2008, now taking a plea that the suit property of the aforesaid title suit has been jointly acquired by the joint family fund of the plaintiff i.e. the petitioner herein from the respondent 1st set and the petitioner herein, taking advantage of him being the karta of the joint family, had filed the aforesaid suit for specific performance of contract, however, since a partition suit filed by the petitioner herein bearing Title Suit No. 109 of 1991 has been decreed by the Sub- Judge 1st Munger by a judgment and decree dated 23.6.2006 and a preliminary decree for partition of the suit property including the suit property of the aforesaid suit bearing Title Suit No. 147 of 1992 has been prepared, the respondent no. 4 has become entitled to share in the suit property pertaining to Title Suit No. 147 of 1992, thus, he is liable to be impleaded in the said Title Suit No. 147 of 1992.

4. The petitioner herein had filed an objection to the aforesaid petition dated 14.3.2008 filed by the Respondent No. 4 herein stating that the respondent no. 4 had also earlier filed an intervenor petition under Order 1 Rule 10 of the Code of Civil Procedure, 1908 but the same was dismissed by a well reasoned order dated 12.1.1994, hence, the present writ petition is not maintainable and is an abuse of process of the Court. Another objection, which was filed by the petitioner herein is that a person who is not party to the contract cannot be impleaded as party to the suit for specific performance.

5. The learned counsel for the petitioner has submitted that the impugned order dated 18.12.2012 passed in Title Suit No. 147 of 1992 by the Sub-Judge II, Munger is perverse and illegal, hence, is fit to be set aside. It is submitted that the learned trial court has failed to consider the fact that the petition of the respondent no. 4 herein for impleadment had earlier been dismissed by an order passed by the learned trial court dated 13.9.1994 and the same has attained finality in view of the same having not been challenged before the highe