C.R. No. 3733 of 2008 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.R. No. 3733 of 2008
Date of Decision: December 11, 2009
Smt.Jaswinder Kaur
.....Petitioner
Vs.
Subhash Chand and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:- Mr.S.S. Dinarpur, Advocate for the petitioner.
Mr.Sanjay Verma, Advocate for the respondents.
-.-
M.M.S. BEDI, J.
Defendant has preferred this petition against the order dated
May 13, 2008 passed by Civil Judge (Senior Division), Yamuna Nagar,
impleading Amrik Singh as defendant No.3 in a suit for possession by way
of specific performance filed by the plaintiff- respondents of an agreement
of sale dated 24/25th September, 2004 against the defendant- petitioner as
well as one Narata Singh son of Sh.Niranjan Singh.
C.R. No. 3733 of 2008 [2]
Briefly stated the facts relevant for adjudication of this revision
petition are that the plaintiff- respondent No.1 has filed a suit for specific
performance of an agreement of sale dated 24/25th September 2004,
alleging that the defendant- petitioner had agreed to sell the land in dispute
measuring 6 kanals 15 marlas to the plaintiff- respondent No.1 for sale
consideration at the rate of Rs.15 lacs per acre. The defendant- petitioner is
alleged to have received a sum of Rs.1 lac as earnest money from the
plaintiff- respondent No.1. The last date of execution of the sale deed was
allegedly fixed for December 31, 2004. On October 4, 2004, the defendant-
petitioner had allegedly received an amount of Rs.1.90 lacs from respondent
No.1- plaintiff through Amrik Singh. The land in dispute was sold prior to
December 31, 2004 to respondent No.2 Narata Singh by virtue of sale deed
dated October 10, 2004, despite the agreement of sale dated 24/25th
September 2004 being in existence. The defendant- petitioner has admitted
the agreement of sale and also admitted the receipt of a sum of Rs.1 lac but
in the written statement, it has been pleaded by her that respondent No.1 in
order to cheat the petitioner to the tune of Rs.1.90 lacs, got a second receipt
forged on October 4, 2004 showing that Amrik Singh had taken an amount
of Rs.1.90 lacs from the plaintiff on behalf of the petitioner whereas the
petitioner never authorized Amrik Singh to receive the payment nor she had
made cordial relation with Amrik Singh. The trial Court has allowed the
application under Order 1 Rule 10 CPC on the ground that he had received a
sum of Rs.1.90 lacs from the plaintiff on October 4, 2004 at the instance of
petitioner as such he is a necessary party for adjudication of the case.
C.R. No. 3733 of 2008 [3]
Counsel for the petitioner has vehemently contended that
Amrik Singh is not a proper or necessary party. He has placed reliance on
Bharat Karsondas Thakkar Vs. M/s Kiran Construction Co. & Ors.,
2008 (3) RCR (Civil) 57 to contend that in a suit for specific performance of
contract a third party or a stranger to the contract could not be added so as
to convert a suit of one character into a suit of a different character. It was
observed in the said judgment that scope of suit for specific performance
could not be enlarged to convert the same into a suit for title and possession.
I have considered the facts and circumstances of the said case.
In the said case, it was observed that a person who was not a party to the
contract but wanted to be impleaded as a defendant on the ground that he
had acquired a subsequent interest as co-owner by virtue of a decree
obtained from the Court, was held to be not entitled to be joined as
defendant. Similarly he relied on Krishan Lal and others Vs. Tek Chand
and others, AIR 1987 P&H 197, wherein it has been observed that in a suit
for specific performance of a contract of sale, a person not a party to the
agreement of sale and claiming to be joint owner of the subject matter of the
suit is not entitled to be impleaded as a defendant. He is neither a necessary
nor a proper party. He also placed reliance on Ram Pat Vs. Maha Singh,
1998 (3) RCR (Civil) 187 to argue that in a suit for specific performance of
an agreement of sale, a person who is not a party to the agreement is not
entitled to be impleaded as a party.
The ratio of the said judgments is not applicable to the facts of
the present case. A part of the earnest money is alleged to have been
C.R. No. 3733 of 2008 [4]
received by Amrik Singh. The said fact has not been admitted by the
defendant. A sum of Rs.1.90 lacs is alleged to have been made as part
payment of sale consideration to the defendant through Amrik Singh who
has not been made a party. There is admittedly a receipt by virtue of which
receipt the disputed amount has not been denied by the defendant. The
defendant claims that Amrik Singh had not been authorized by him to
receive the money. In case the suit of the plaintiff is decreed than the
earnest money including the one handed over to Amrik Singh on behalf of
the defendant will have to be accounted for in case established. In case the
suit is to be dismissed on merits, then whether the plaintiff is entitled to
receive back the earnest money paid to the defendant or to Amrik Singh,
will have to be dealt with for the just adjudication of the civil rights of the
parties. Amrik Singh may not be a necessary party but at the same time, he
appears to be a proper party. The scope of “necessary party” is that a party
without whose presence no effective or complete adjudication of the dispute
can be made. Amrik Singh aforesaid has, rightly been impleaded as a party
to the litigation, by exercising the discretion in the interest of justice. The
impugned order does not warrant any interference.
Dismissed.
December 11, 2009 (M.M.S.BEDI) sanjay JUDGE