SURAJ KUMAR JAIN Vs. S M SHAHID ALAM

JUDGEMENT

(1.) This application is at the instance of the plaintiff and is directed against the order no.105 dated March 3, 2004 passed by the learned Civil Judge (Senior Division), Third Court, Alipore, District: South 24 Parganas in Title Suit No.16 of 1989 thereby rejecting an application for addition of party under Order 1 Rule 10(2) of the Code of Civil Procedure. The plaintiff filed the suit for specific performance of contract and injunction stating, inter alia, that the executive committee of the Mysore Family Cemetry was empowered to sell, exchange and transfer of the properties of the Mysore Family including the suit properties and the said committee executed an unregistered deed of agreement for lease dated May 27, 1985 in favour of the plaintiff to let out the suit property, as described in the schedule of the plaint for a period of 75 years with option to renew for another period of 75 years on payment of selami as determined between the parties. In consideration of such agreement for lease, the plaintiff made a payment of Rs.30,000/- but the said deed of agreement was not effected as yet and for that reason, the plaintiff filed the suit for specific performance of contract.

(2.) In that suit, one S. M. Shahid Alam filed an application under Order 1 Rule 10(2) of the C.P.C. for impleading him as defendant because he was one of the Mutwallis of the defendant, Mysore Family Fateha Fund Committee. That application was allowed by the impugned order. Being aggrieved by the said impugned order, this application has been preferred by the plaintiff. Mr. Bhattacharyya, learned Advocate appearing on behalf of the petitioner, submits that this is a suit for specific performance of a contract of lease of immovable property for a period of 75 years between the parties as mentioned in the body of the plaint and as such, any third party to the contract cannot have any say in the matter of specific performance of contract. So, the application is not maintainable. He also contends that the proposed added defendant, that is, S. M. Shahid Alam, is neither a necessary party nor a proper party to the suit to determine the prayer for specific performance of contract between the parties and so Mutawalli of the defendant no.1 is in no way concerned with the transaction between the parties to the suit and as such, the learned Trial Judge has committed a wrong in allowing the said application in the suit between the parties to the agreement. The application for addition of party is a belated one and it should not have been allowed by the learned Trial Judge.

(3.) On the other hand, Mr. Srivastava, learned Advocate appearing on behalf of the opposite party no.1, supports the judgment and he submits that according to the provisions of the Wakf Act, 1995, the Mutawalli is entrusted to look after the wakf property and as such, the learned Trial Judge has rightly allowed the application for addition of party.