RAIZIAN Vs. DHARA

JUDGEMENT

(1.) This plaintiff-respondents filed a suit for possession by way of specific performance of the agreement of sale against Smt. Bharto defendant. Pending the suit, Smt. Bharto defendant mortgaged the suit land with Faquir Chand defendant and therefore, he was impleaded as defendant No. 2 in the suit. The necessary amended plaint was also filed. Ultimately the trial Court decreed the plaintiffs' suit for specific performance vide order dated 20.7.1972. Aggrieved with the same, Smt. Bharto defendant filed an appeal in the Court of the Additional District Judge, Karnal. There she did not implead Faquir Chand defendant No. 2 with whom the land was mortgaged pending the suit. At the time of hearing the appeal, a preliminary objection was raised on behalf of the plaintiffs that Faquir Chand defendant No. 2 has not been impleaded as a party in the appeal and therefore the appeal as such was incompetent and should be dismissed on that score alone. This objection prevailed with the learned Additional District Judge and he, vide his order dated 29.3.1978, dismissed the appeal as incompetent. Dissatisfied with the same, defendant Smt. Bharto has filed this second appeal in this Court.

(2.) The learned counsel for the appellant Smt. Bharto submitted that Faquir Chand defendant was not a necessary party. He was impleaded as a defendant, because the suit land was mortgaged with him pending the suit. The suit was competent even Faquir Chand defendant was not pleaded as a defendant as he was bound by the decree against Smt. Bharto defendant on account of the principle of lis pendens. Thus, argued the leaned counsel, the appeal, as such, without impleadings Faquir Chand as party, was competent. In any case, he could be added as a party under Order 1 Rule 10 of the Code of Civil procedure. In support of this contention, he referred to Arjun Singh v. Kartar Singh, 1975 AIR(P&H) 184.

(3.) After hearing the learned counsel for the parties, I find force in the contention raised on behalf of Smt. Bharto appellant, Faquir Chand was not a necessary party without whom the suit could not proceed. Since the suit land was mortgaged with him pending the suit, he was bound by the decree which might be passed ultimately. He was impleaded in the suit as defendant No.2 by way of precaution being a proper party. Even in the amended plaint, the plaintiffs did not claim any relief against the said defendant. The trial Court also did not grant any relief while decreeing the plaintiffs' suit, except this that any mortgage created in favour or defendant No.2 pending the suit, shall not be binding on the plaintiffs. In these circumstances, Faquir Chand defendant No. 2, being not a necessary party, the appeal could proceed even if he, was not impleaded as a party thereto. The approach of the learned appellate Court in this behalf was wholly wrong, illegal and misconceived. Consequently, this appeal succeeds. The order of the learned lower appellate Court is set aside and the case is sent back to the District Judge, Karnal for deciding the appeal on merits before whom the parties have been directed to appear on the 5th day of September, 1987. Since Faquir Chand was made a party in the appeal in this Court and is represented by the counsel, it is directed that he may also be impleaded as a respondent in that appeal. The records of the case be sent back forthwith. It is, further directed that the appeal be decided within three months from the date of appearance of the parties.