DEEPAK KUMAR Vs. RAJKUMAR SAHU AND ORS.

JUDGEMENT

(1.) Aggrieved by order dated 06.05.2013 in Title Appeal No. 9 of 2009 whereby, application under Order I, Rule 10(2), C.P.C. preferred by the petitioner has been rejected, the present writ petition has been filed. The petitioner is son of the defendant in Title Suit No. 97 of 2002 which was filed for specific performance of agreement dated 09.11.2000. The said agreement was executed by the father of the petitioner for sale of about 31.05 decimal land in R.S. Plot No. 1591 under Khata No. 146 at village -Hatia, Ranchi for a consideration of Rs. 47,250/ -. The suit was finally decreed on 28.11.2008 against which the defendant preferred Title Appeal No. 9 of 2009. In the pending title appeal, the petitioner filed application under Order I, Rule 10(2), C.P.C. on 24.01.2013 pleading that on 16.01.2013 he came to know that his father has executed an agreement in favour of respondent No. 2. It is stated that the land comprised in Plot No. 1591 in Khata No. 146 was owned and possessed by grandfather of the petitioner which, after the death of his grandfather was amicably divided between his two sons. The mother of the petitioner died early and thereafter, his father contracted marriage second time. It is further stated that under the pressure of his stepmother and other brothers, his father executed an agreement. The petitioner was aged only about 10 years at that time. After attaining majority, the petitioner came in possession of about 11 decimal of land in R.S. Plot No. 1591 however, without consent of the petitioner, his father has sold his share to the respondent No. 2. The application dated 24.01.2013 filed by the petitioner under Order I, Rule 10(2), C.P.C. has been dismissed vide order dated 06.05.2013.

(2.) The learned counsel for the petitioner submits that the agreement dated 09.11.2000 was executed by his father under misrepresentation to the vendee. If, pursuant to decree in Title Suit No. 97 of 2002, possession of the land belonging to the petitioner is delivered to the plaintiff/respondent No. 2, it would cause irreparable loss to the petitioner. Since outcome of the Title Appeal No. 9 of 2009 would seriously affect the interest of the petitioner, the petitioner thus, is a necessary party and therefore, application under Order I, Rule 10(2), C.P.C. should have been allowed. Relying on decision of the Hon'ble Supreme Court in "Ramesh Hirachand Kundanmal v/s. Municipal Corporation of Greater Bombay & Ors." : (1992) 2 SCC 524 : (1992 AIR SCW 846), the learned counsel for the petitioner submits that the test whether a party should be permitted to intervene in a pending suit is, whether the outcome of the suit would affect the interest of the proposed intervenor. Referring to paragraph No. 14 of the judgment in "Ramesh Hirachand Kundanmal", the learned counsel for the petitioner submits that avoidance of multiplicity of litigation, generally should be kept in mind by the court while deciding application under Order I, Rule 10, C.P.C. The learned counsel for the petitioner further submitted that since his father has executed agreement dated 09.11.2000 by playing fraud, the court hearing the suit for specific performance of agreement dated 09.11.2000 may not exercise its discretion in favour of a person who has executed a fraudulent agreement and on this ground also, it was necessary that application under Order I, Rule 10, C.P.C. should be allowed to enable the petitioner to bring these facts before the court.

(3.) In spite of valid service of notice, the respondent No. 1 has chosen not to appear in the present proceeding.