MUJEEB Vs. ROYAL HOSPITAL P LTD

JUDGEMENT

(1.) Petitioner in W.P.(C) 4577/2008 instituted O.S. 61/2006 before Sub Court, Kozhikode for specific performance of an agreement for sale executed by respondent/second defendant as Director of first respondent/first defendant Company M/s. Royal Hospital Private Limited to sell the plaint schedule property in favour of the petitioner. Defendants in the written statement contended that though an agreement was executed, petitioner did not perform his part of the contract within die time provided and the time provided in the agreement is the essence of the contract and therefore petitioner is not entitled to a decree for specific performance of the agreement. An application for appointment of a Commission was filed by the petitioner. A Commissioner was appointed. When the Commissioner inspected the plaint schedule property, the inspection was obstructed by third parties. They filed a statement before the Commissioner asserting their independent right in the property. Petitioner therefore filed I.A. 4667/2007 under Order 1 Rule 10 of Code of Civil Procedure to implead those third parties as additional defendants 3 to 7. Respondents opposed the petition contending that persons sought to be impleaded are third parties and in a suit for specific performance of an agreement for sale they are unnecessary parties and therefore petition is to be dismissed. Petitioner in W.P.(C) 2973/2008 filed an application under Order 1 Rule 10 to get herself impleaded contending that she is a shareholder and a Director of the first defendant Company and the Company was wound up in 1992 and she had alienated her rights in favour of third parties by separate registered sale deeds and there was no resolution by the Company authorising second respondent to execute an agreement for sale and the agreement if any, is not -binding on the company or the assets of the Company and there is collusion of plaintiffs with defendants and therefore petitioner is to be impleaded as additional defendant. Plaintiff did not file any objection to that petition. Respondents defendants filed a counter statement contending that though Company was wound up, subsequently as per a resolution that decision was withdrawn and second respondent was authorised by a resolution to execute an agreement for sale and petitioner in W.P.(C) 2973/2008 is not a necessary party to the suit and therefore petition is to be dismissed. Petitioner in W.P.(C) No. 2973/2008 filed Ext. P7 petition in I.A. 1184/2007 for a direction to respondents 2 and 3 to produce the minutes of the General Body and the Director Board of the Company from the period 1992 onwards to show that Company was wound up in 1992.

(2.) Learned Sub Judge under Ext. P7 order in W.P. (C) 4577/2008 dated 15-11-2007 dismissed I.A. 4667/2007 holding that in a suit for specific performance of an agreement for sale third parties are not to be impleaded as their presence is not necessary for resolving the dispute involved in the suit. As per Ext. P8 order, in W.P.(C) 2973/2008 dated 26-7-2007, I.A. 833/2007 the petition to implead the petitioner as supplemental defendant was dismissed. As per Ext. P9 order I.A. 1184/2007 was dismissed. Petitioner did not challenge Ext. P9 order in I.A. 1184/2007 and challenged only the order in I.A. 833/2007.

(3.) Learned Senior Counsel appearing for petitioner in W.P.(C) 4577/2008 as well as senior counsel appearing for petitioner in W.P.(C) 2973/2008 and learned Counsel appearing for defendants 1 and 2 who are opposing the petitions were heard.