R R SQUARE Vs. SHOBALATHA DEBI

JUDGEMENT

(1.) THIS is an application filed under Order 1, Rule 10, CPC, Order 14, Rule 8 of O.S. Rules and Section 151 of the Code of Civil Procedure for impleding respondents 2 to 4 defendants 1 to 4 in the suit.

(2.) THE allegations in the affidavit are as follows:

(3.) THE first respondent/defendant has filed counter to the following effect: An agreement was entered into between the applicant and this respondent for sale of an extent of 3 grounds 600 sq. ft. in the "B" Schedule of the suit property for Rs. 18 lakhs; that the plaintiff/applicant would hand over a flat in the third floor to be constructed by the applicant/plaintiff, the cost having been Worked out to be Rs. 9 lakhs, the total sale consideration thus being Rs. 27 lakhs. At the time the agreement was ent ered into, the first respondent/defendant received an advance of Rs. 1.25 lakh and another sum of Rs. 1 lakh from Gem Cables and Conducts Ltd. by way of advance for allotment of flat. THE applicant/plaintiff obtained the planning permit from the fourth respondent on 26-8-1992 describing this respondent/defendant as the owner of 5 grounds 680 sq./ft. and thereby became eligible for higher floor space index than the actual entitlement. This respondent sought legal advice on the legality of the sanction accorded by the fourth respondent and she was advised that the application for planning permission contained incorrect particulars and hence the planning permission was liable to be cancelled. This respondent repudiated the contract and informed the applicant/plaintiff orally on 7-3-1994. THE applicant/plaintiff filed the present suit C.S. No. 625/94 for specific performance of the agreement for sale of the suit property or in the alternative for refund of the amount paid by the applicant/plaintiff along with interest and for damages, etc. Though interim injunction was granted on 15-6-1992 and the application for vacating injunction filed in A. No. 4065/94 by this respondent, was dismissed by the learned single Judge, this respondent took the mater by way of appeals in G.S.A. Nos. 57 and 58/95 and the Bench allowed the appeals stating that the applicant/plaintiff was only a real estate agent and had entered into the contract with this respondent only for the purpose of developing the land suitable for construction of flats thereon, so as to sell the flats to third parties. THE Division Bench also held that the applicant/plaintiff did not hold any personal interest in the property and if ultimately it succeeded, it was only going to sell the completed flats to third parties and therefore there was no justification for preventing the admitted owner, namely, this respondent from dealing with the property during the pendency of the suit. THE Division Bench also observed that the applicant/plaintiff could always be compensated in terms of money with regard to whatever it had spent and also for damages. Against the order in the O.S. appeals the applicant/plaintiff preferred Special Leave Petitions before the Supreme Court and the Supreme Court dismissed the petitions on merits and confirmed the order of the Division Bench. THE order of the Division Bench had thus become final. As the Division Bench has clearly held that there was no justification for preventing the admitted owner of the property from dealing with the land during the pendency of the suit, there was no reason whatsoever for the applicant/plaintiff to come up with the present application for impleading respondents 2 to 4. THE suit itself is liable to be dismissed as the plaintiff/applicant had come to Court with unclean hands. This respondent had also repudiated the agreement entered into with the applicant/plaintiff and the repudiated agreement cannot be legally enforced due to the fraud perpetrated by the applicant/plaintiff while applying for planning permission. THE applicant/plaintiff did not have legal right to compel this respondent to enforce the agreement which had been duly repudiated. THE second and the third respondents are strangers to the agreement, there being no privity of contract between them and the applicant/plaintiff. THE application for interim injunction restraining this respondent from dealing with the property having been dismissed, the present application did not lie. THE impleading of the second and third respondents, who are strangers to the agreement, would amount to misjoinder of parties. This respondent had liberty to deal with the property in any manner with any person. So far as the fourth respondent is concerned, there is absolutely no necessity to implead the fourth respondent as a defendant in the suit. THE presence of the fourth respondent is not required to decide the inter-se-rights of the applicant/plaintiff and this respondent.