HARISH KUMAR Vs. USHA DEVI

JUDGEMENT

(1.) Since, common question of law and facts are involved in these petitions, hence, with the consent of the counsel for the parties, both the matters are taken up and are being decided by this common order.

(2.) For the sake of convenience, the prayer mentioned in S.B. Civil Writ Petition No.13674/2022 is taken into consideration, the instant writ petition has been filed by the petitioner with the following prayer:-

(3.) Learned counsel for the petitioner submits that the plaintiffpetitioner (hereinabove referred to as "the plaintiff ") purchased the property in question from the respondent Nos. 1 to 3 through a registered sale agreement dtd. 6/3/2008. Counsel submits that when the registered sale deed was not executed in favour of the plaintiff, he filed a suit for specific performance of agreement against the respondents. Counsel submits that during pendency of the suit, the brother of the father (paternal uncle) of respondent Nos. 2 and 3, i.e., Durjay Singh gifted the suit property in favour of one Ms. Pragya Singh, i.e., daugther of the respondent No.3 by way of a registered gift deed on 20/12/2018. Counsel submits that under the changed circumstances, the petitioner submitted an application under Order 1 Rule 10 CPC for impleadment of said Durjay Singh and Ms. Pragya Singh as defendants in the suit and at the same time, an application was submitted by the petitioner for amendment of the suit seeking cancellation of the registered gift deed 20/12/2018. Counsel submits that giving a reference of the judgment of the Hon'ble Apex Court passed in the case of Kasturi Vs Iyyamperumal and Ors. reported in AIR 2005 SC 2813, the Trial Judge rejected the application filed by the petitioner under Order 1 Rule 10 CPC. Counsel submits that while rejecting the said application vide impugned order dtd. 28/5/2022 the Trial Judge has recorded a finding of the fact that Durjay Singh and Ms. Pragya Singh are neither necessary nor proper party to the suit for specific performance of agreement filed by the plaintiff. Counsel submits that accordingly, the application filed by the petitioner seeking amendment in the suit filed under Order 6 Rule 17 CPC was also rejected. Counsel submits that in order to avoid multiplicity of the litigation between the parties, it was necessary for the Trial Judge to have allowed the application filed by the petitioner under Order 1 Rule 10 CPC and also the application filed by the petitioner seeking amendment, by way of filing the application under Order 6 Rule 17 CPC. In support of his contention, he has placed reliance upon the judgment passed by the Hon'ble Apex Court in the case of Sumti Bai Vs. Paras Finance Company reported in 2007 (10) SCC 82. Counsel submits that in view of the submissions made hereinabove, the impugned order passed by the learned Trial Judge be quashed and set aside and both the applications filed by the plaintiff/petitioner be allowed.