O R D E R

% 09.11.2022

1. This petition under Article 227 of the Constitution of India emanates from a suit which was originally instituted before this Court as CS (OS) 335/2012 (Sharma Foundation & Anr. v. B B Joshi) and which, consequent to enhancement of the pecuniary jurisdiction of Trial Courts, stands transferred to the Court of the learned Additional District Judge (the learned ADJ), where it was renumbered CS 12/17. Respondent 1 Sharma Foundation and Dr. P. Sharma were the plaintiffs in the suit and the petitioner B B Joshi was the sole defendant.

2. The petitioner is aggrieved by order dated 15th February 2019 passed by the learned ADJ, whereby an application under Order I Rule

10(2)1 of the Code of Civil Procedure, 1908 (CPC), filed by Dr. Swasti Shrimali Vohra, Rajiv Nair and Dr. Manu Shrimali Sharma, Respondents 2 to 4 herein, has been allowed. By the impugned order, Dr. P. Sharma was deleted from the array of parties and, in his place, Respondents 2 to 4 have been permitted to be impleaded.

Facts Plaint in CS (OS) 335/2012 (later CS 12/17)

3. Plaintiff 1 in CS(OS) 335/2012 was Sharma Foundation “through Chairman Dr. P. Sharma”. Dr. P. Sharma was separately impleaded as Plaintiff 2.

4. Though the recitals in the plaint do not specifically refer to Plaintiffs 1 and 2, the reference to “the plaintiff”, in the plaint, is apparently to Plaintiff 1 Sharma Foundation.

5. The factual recitals in the plaint may be summarised thus: (i) The petitioner B B Joshi (“Joshi” hereinafter) entered into an Agreement to Sell dated 18th December 2006 with Respondent 1— Sharma Foundation, for sale of property

1 10. Suit in name of wrong plaintiff. –

(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(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 that 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 been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

situated in Khasra Nos. 204, 205, 206 and 209 situated at Nawada Pargana, Parwadoon, Dehradun, admeasuring 4575 sq. m. (the suit property) for a total sale consideration of ₹ 1.2 crores. Under the Agreement to Sell, which was executed at Delhi, Joshi was to sell the suit property to Sharma Foundation. Pursuant thereto, Sharma Foundation paid ₹ 60 lakhs to Joshi, towards earnest money, vide cheque dated 18th December 2006, which was encashed by Joshi on 21st December 2006. The Agreement to Sell envisaged Sharma Foundation opening a charitable hospital in the suit property, for which Joshi was obligated to obtain statutory permissions and complete other formalities within 16 months from the date of agreement, failing which Sharma Foundation was liable to be refunded the earnest money deposited by it along with interest @ 20% per annum.

(ii) The plaint alleged that Joshi failed to obtain the requisite permissions and, therefore, offered to return the earnest money paid by Sharma Foundation. Sharma Foundation accepted Joshi’s offer. The earnest money was to be refunded by Joshi in one go, along with interest. Joshi delayed in refunding the money and, after great persuasion, refunded the money in instalments in part, to the extent of ₹ 25,98,500/-.

(iii) Th