IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 510 of 2017 P Date of decision : 18.9.2023.

Balbinder Kumar ...Petitioner.

Versus Nisha Devi & another . ..Respondents Coram: o The Hon’ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?1 For the petitioner : Mr. Sanjeev Kuthiala, Sr. Advocate with Ms. Amita Chandel, Advocate.

For the respondents : Mr. Umesh Kanwar, Advocate, for respondent No.2.

Satye n Vaidya, Judge (Oral)

The instant petition has been preferred against the order dated 8.8.2017, passed by the learned Civil Judge (II) Amb in Civil Suit No. 195 of 2010, whereby the application of respondent No.2 herein for impleadment as party has been allowed.

2. Petitioner herein is the plaintiff before the learned trial Court. He has filed a suit for specific performance of agreement dated 23.3.2009 against respondent No.1/defendant. The subject matter of the suit is immovable property, comprised in khewat No. 70, khatoni No. 175, khasra

1 Whether reporters of Local Papers may be allowed to see the

judgment?

No. 447, measuring 0-04-79 hectares, situated at Village Diara, Tehsil Amb District Una, H.P. P 3. During the pendency of the suit, on an application for interim injunction of the plaintiff, respondent No.1 has been restrained from encumbering the suit ti ll pendency of the suit. Despite the interim injunctioon, respondent No.1 allegedly mortgaged the suit property with respondent No.2. On the strength of such mrortgage, respondent No.2 filed the application for impleadment.

4. Despite resistance to the application by the plaintiff, the learned trial Court proceeded to allow the same vide impugned order on the ground that respondent Non.2 herein was a necessary party.

5. I have heard the learned counsel for the parties and have also perused the record carefully.

6. The fact that respondent Nno.1 created a mortgage in respect of suit property in favour of respondent No.2 after suffering an injunction order passed by the learned trial Court is not in dispute. That being so, the right of the plaintiff in the suit in respect of the suit land could not be defeated at least by creation of subsequent mortgage in spite of operation of an injunction order. Even otherwise, it would have been subject to the final outcome of the suit on the principle of lis-pendency. In such view of the matter, the right if any in favour of respondent No.2 having accrued or crystallized on the strenPgth of above mortgage could be decided in a separate suit. Since there was no privity between the plaintiff and respondent No.2, the proposed defendant could not be said to be either necessary or proper party to the suit. o

7. During the course of hearing, learned counsel for respondent No.2 has rsubmitted that respondent No.2 had already filed a separate suit against respondent No.1 herein, which stands decreed.

8. Accordingly, the petition is allowed. The order dated 8.8.2017, passed by the learned Civil Judge (II) Amb in Civil Suit No. 195 of 2010 is set aside. The petitioner/plaintiff is directed to appear before the learned trial Court on 5.10.2023.

Pending applications, if any, also stand disposed of.

(Satyen Vaidya)

Judge

18th September, 2023 (kck)