RATI CHAND Vs. SAIFUDDIN AND OTHERS

JUDGEMENT

(1.) The petitioner-defendant No. 6, who is an advocate by profession, has preferred this revision against the order dated 22-7-1988 passed in Civil Suit No. 22-B of 1987 by Shri S. Dojha, IInd Additional Judge to the Court of District Judge, Ratlam, whereby the learned Judge has dismissed the application dated 1-10-1984 filed by the petitioner under Order 1, Rule 10, C.P.C., for deleting his name from the array of parties.

(2.) The brief facts leading to this petition are that defendants Nos. 1 to 5 entered into an agreement with the plaintiff (respondent No. 1) on 16-2-1982 to sell two plots situated at mohalla Silawat-Ka-was, Annakshetra Road, Ratlam. The consideration of the two plots was agreed as Rs. 48,000.00, which was paid on the same day by the plaintiff through the petitioner. The petitioner handed over the receipts signed by defendants Nos. 1 to 5. The blanks in the receipts were filled by the petitioner. The execution of the agreement to sell was done on the same day. The petitioner, who is a lawyer, completed all legal formalities. It was agreed between the parties that the sale-deed would be executed within a week from the date of execution of the agreement to sell. The plaintiff went to Dubai and handed over Rs. 4,000.00 to the petitioner for purchase of necessary stamps and for registration charges, which amount ultimately was returned by the petitioner to the wife of the plaintiff as defendants Nos. 1 to 5 did not agree to execute the sale-deed. When the plaintiff (respondent No. 1) came back he came to know that the sale-deed was not executed by defendants Nos. 1 to 5 (respondents Nos. 2 to 6). Hence, he contacted these defendants, who avoided to execute the sale-deed No. satisfactory reply was given by them to the plaintiff for not executing the sale-deed. Thereafter, the plaintiff served a notice dated 24-10-1983 to defendants Nos. 1 to 5, making a demand for execution of the sale-deed, or in the alternative, for return of the amount of Rs. 48,000.00 with interest. A copy of this notice was also sent to the petitioner. But as the demand was not acceded to by the defendants Nos. 1 to 5 nor the amount was returned hence the plaintiff respondent No. 1 filed a suit for recovery of Rs. 58,835.00 after a period of about two years, on 27-8-1984, wherein the petitioner was impleaded as a party to the suit, as defendant No. 6. The plaintiff did not allege any cause of action against the petitioner but stated in paras 1 and 2 that the petitioner is a proper party. In para 5, it was alleged that the defendants Nos. 1, 4 and 5 alleged that there were some differences between the petitioner and these defendants over the receipt of sale consideration. It was also alleged that the plaintiff came to know that these defendants informed the plaintiff that they have not received the amount of Rs. 48,000.00 from the petitioner-defendant No. 6. Hence a decree for Rs. 58,835.00was prayed against all the defendants.

(3.) The contracting parties to the agreement for sale are the plaintiff and the defendants Nos. 1 to 5. The suit is not based on the tortuous liability joint or several, of defendants Nos. 1 to 6. After the receipt of the notice of the suit, the petitioner defendant No. 6 filed I.A. No. 1 on 1-10-1984 wherein the petitioner contended that he is not a party to the transaction and that the contract was entered into between the plaintiff and defendants Nos. 1 to 5. The petitioner contended that in the plaint itself, the plaintiff has alleged that the petitioner-defendant is a proper party. There is no legal right against the petitioner. The petitioner has no concern with the land nor is he a owner of the plots, which were agreed to be sold by defendants Nos. 1 to 5 to the plaintiff. The petitioner acted as a lawyer for the parties and in his presence, the documents were executed and the consideration was passed. Hence, the petitioner prayed that his name be struck off from the array of defendants and he be awarded the costs of Rs. 1,000.00. This application was fixed for arguments, but the plaintiff - prayed for time and the case was being adjourned from time to time. Reply to the said application was filed on 13-12-1984 but on this date, the application was not heard. On the other hand, the trial Court adjourned the case for filing of the written statement by defendants Nos. 1, 4 and 5 and ultimately the application was fixed for arguments on 10-12-1985 but on this date at the request of the plaintiff, the case was again adjourned. Aggrieved of this order, the petitioner preferred a revision, which was registered as Civil Revision No. 75 of 1986, before this Court and contended that his application I.A No.l is not being decided, as result of which the petitioner, who is an advocate and has no concern with the suit property, is being thus harassed. This court on 9-2-86 while dismissing the said revision summarily, observed:-Considering the facts and circumstances of the case, as pointed out by the learned Counsel for the petitioner, it is hoped that the learned lower Court shall positively decide his application filed under Order 1, Rule 10, C.P.C., within a period of one month from today, in accordance with law." Even after these observations, the application was not heard and disposed of. On the other hand, on 7-3-87, the trial Court directed the plaintiff that the allegations against defendant No. 6 are vague; hence, he should furnish particulars of the allegations against defendant No. 6 as on the pleadings, as they stand, there is no propriety for impleading the defendant No. 6. The petitioner, aggrieved of this order, filed a revision before this Court, which was registered as Civil Revision No. 73 of 1987 which was admitted by this court. In the presence of the counsel for the plaintiff, this court disposed of the revision by observing:-"The learned Counsel for the respondent, however, submitted that he has already submitted an application for amendment, which is yet to be decided, for which the Court has fixed the next date on 20-8-1987. In these circumstances, the learned lower Court is directed to consider and decide these applications positively before 31st Aug., 1987, with these observations, this petition is disposed of, with no order as to costs." After this order, the Trial Court took up the matter but the petitioner again came before this Court by filing Misc. Civil Case No. 169 of 1987 for clarification of the order dated 23-7-1987 passed by this court. This Court, vide its order dated 26-8-87, on the grievance of the petitioner, ordered that the application (I.A. No. 1) filed by the petitioner be disposed of first on the basis of the original plaint, thereafter, only the application for amendment be considered. This order was passed in the motion hearing and in the absence of the counsel for the plaintiff-respondent No. 1. After this order, the petitioner again filed Misc. Civil Case No. 211 of 1987, as according to the petitioner, there was a confusion in the mind of the Trial Court in relation to the order of this Court dated 26-8-87 passed in Misc. Civil Case No. 169 of 1987. This court vide order dated 13-11-1987, disposed of the said Misc. Civil Case with the following observations-