OM PARKASH Vs. RAJNI GUPTA

JUDGEMENT

(1.) THE petitioners, who are sons of Asa Nand Dhingra, the defendant (respondent No. 2 herein) in the suit for specific performance filed by respondent No. 1 Rajni Gupta, have filed this petition under Article 227 of the Constitution of India, for setting aside the order dated 18.10.2006, passed by Additional Civil Judge (Senior Division), Faridabad, whereby their application for impleading them as defendants in the above suit, has been dismissed.

(2.) RESPONDENT No. 1-plaintiff filed a suit for possession by way of specific performance of agreement to sell dated 1.5.10.2004 in respect of a portion of plot No. 5-R-1/B N.I.T. Faridabad. When the said suit was fixed for evidence of the plaintiff, the petitioners filed application under Order 1 Rule 10 C.P.C. for impleading them as defendants. In the application, it has been averred that the suit property is the Joint Hindu Family property, in which the petitioners and defendant Asa Nand Dhingra are the co-parceners. It is alleged that Asa Nand Dhingra is having only 1/7th share in the suit property. Therefore, he was not competent to enter into the alleged agreement of sale in respect of the suit property more than his share. It is further alleged that Asa Nand Dhingra being Karta of the Joint Hindu Family has no right to alienate the suit property to the plaintiff without there being any legal necessity. With these averments, a prayer has been made that the petitioners may be impleaded as defendants as they are the necessary parties. The said application has been dismissed by the trial Court while holding that in a suit for specific performance of an agreement to sell in respect of the joint property, a co-owner is not necessary party. It has been further observed that strangers to the contract making a claim adverse to the title of the vendor-defendant contending that they are co-owners of the contracted property, are neither necessary nor proper party. Therefore, they are not entitled to be joined as party to the suit. The trial court, while dismissing the application of the petitioner on the aforesaid grounds, has relied upon a Full Bench decision of the Madhya Pradesh High Court in Panne Khushali and another v. Jeewanlal Mathoo Khatik and another, AIR 1976 Madhya Pradesh 148, a Division Bench judgment of this Court in Krishan Lal and others v. Tek Chand and others, 1986 RRR 30 : AIR 1987 Punjab and Haryana 1987 and judgment of the Supreme Court in Kasturi v. Iyyamperumal and others, 2005(2) RCR(Civil) 691 : (2005-3)141 PLR 326 : AIR 2005 SC 2813 : JT 2005(4) SC 565.

(3.) AFTER hearing counsel for the petitioners as well as counsel for the caveator-respondent No. 1, I do not find any merit in the instant petition. It is well settled law, as has been held by the Full Bench of the Madhya Pradesh High Court in Panne Khushali's case (supra) that in a suit for specific performance of agreement to sell, strangers to the agreement making a claim adverse to the title of vendor-defendant contending that they are the co- owners of the contracted property are neither necessary nor proper party. The decision of the Full Bench of the Madhya Pradesh High Court has been approved by the Supreme Court in Kasturi's case (supra), wherein it has been held that in a suit for specific performance of a contract for sale, a person claiming adverse to the claim of a vendor is not a necessary party. In the said judgment, the question of impleading such person has also been examined in view of Section 19 of the Specific Relief Act, which provides relief against the parties and persons claiming under them by subsequent title. In this regard, the Supreme Court has observed as under :-