The court affirmed that partners of a firm are necessary parties in a suit for specific performance when the agreement to sell involves the firm, emphasizing the principle of dominus litus.

ORAL ORDER

1. Heard learned advocate Mr.Chinmay Gandhi for the petitioners and learned advocate Mr.Tejas Satta for learned advocate Mr.Anip Gandhi for respondent nos.2,3 and 4.

2. The petition challenges order dated 04.02.2019 passed by the learned Judge, City Civil Court No.6, Ahmedabad below application Exh.42 in Regular Civil Suit No.3883 of 2001. This application was filed by the third party under Order 1 Rule 10 of CPC read with section 151 of CPC to join them as party - plaintiff. This application was rejected. Hence, present petition.

3. Learned advocate Mr.Chinmay Gandhi for the petitioner would submit that disputed property which was sold to the plaintiff - Kamalsingh Ahluwaliya by Mehboob Trust through its Trustees by executing agreement to sale dated 25.06.1993 was not specifically performed on the ground that disputed property fall within restricted area declared by Government of Gujarat under statute. It is submitted that therefore, Civil Suit was filed by Kamalsingh Ahluwaliya for the purpose of specific performance against Mehboob Trust through its Trustees. Learned advocate Mr.Gandhi would submit that Charity Commissioner had granted permission to Mehboob Trust to sale the property at sale consideration of Rs.13,10,000/- in favour of plaintiff - Kamalsingh Ahluwaliya as per order produced at Annexure C. He would further submit that subsequently Charity Commissioner has modified order on 20.02.1998 and permitted sale of disputed property in favour of partnership firm viz. M/s. Kamal and Company having its partners viz. Kamalsingh Tejasingh Ahluwaliya; Ajitsingh Kamalsingh Ahluwaliya and Iqbalkhan Husainkhan Pathan in view of order produced at Annexure - D.

3.1. Learned advocate Mr.Gandhi submits that in view of the order produced at Annexure -D, interest in the disputed property was also created in favour of Kamal and Company - partnership firm having three partners including plaintiff and two other partners. He would submit that in view that, the petitioners being third party has filed application Exh.42 to implead them as necessary party. This application is rejected for the reason that there is no privity of contract between the petitioners and defendant - Trust in the suit filed for specific performance by Kamalsingh Ahluwaliya. He would submit that learned Trial Court seriously erred in reading and misinterpreting order passed by the Charity Commissioner, whereby, agreement to sell executed by the defendant in favour of Kamalsingh Ahluwaliya had been legal assent in favour of third party i.e. partners of Kamal and Company - partnership firm and therefore, two other partners are necessary party to be joined as plaintiffs. It is submitted that plaintiff had no objection in joining third party, yet learned Trial Court rejected the application and as such committed serious jurisdictional error. It is submitted that learned Trial Court failed to notice principle of dominus litus; the principle indicates that plaintiff is master of suit. It is further submitted that plaintiff has no objection to join third party as party plaintiff. The Court should have allowed the application to give true effect to the order passed by the Charity Commissioner.

3.2. Upon above submission, learned advocate Mr.Gandhi submits to allow this petition and to upturn impugned order and permit two partners of Kamal and Company to be joined as plaintiffs.

4. As against above, learned advocate Mr.Satta for the original defendant - Mehboob Trust referring to the judgment of Madras High Court in the case of Bagyalakshmi v/s. Kanagaraj in CRP No.4587 of 2013 and judgment of Hon'ble Apex Court in the case of Kasturi v/s. Uyyamperumal [Appeal (Civil) No.2831 of 2005] would submit that in absence of privity of contract between the present petitioner and defendant - trust, the petitioners are not necessary party in the suit. It is submitted that learned Trial Court has rightly decided this issue and no interference is required to be called in this petit