RAM GOPAL Vs. PRAVIN KUMAR MEHTA

JUDGEMENT

(1.) Present writ petition has been filed for quashing of order dated 19.04.2007 in Title Suit No. 173 of 1997, passed by Sub-Judge, I, Ranchi, whereby the application dated 25.01.2007 filed on behalf of the plaintiff/petitioner under Order 6, Rule 17 and under Order I Rule X read with Sec. 151 of the Code of Civil Procedure,1908 (hereinafter referred as C.P.C.) has been rejected.

(2.) Learned counsel for the petitioner submits that an agreement was executed on 27.05.1990 between the petitioner and one Sushila Kumari Mehta (since deceased) through her son and holder of power of attorney Sudhir Kumar Mehta (respondent no. 2) for sale of her land, but she failed to execute the same. Thereafter the petitioner filed a suit for specific performance against the respondents. During the pendency of the suit, said Sushila Kumari Mehta in connivance with respondent no. 2 executed general power of attorney in favour of one Man Rakhan Mahto on 20.09.2002 and on the pretext of said power of attorney, Man Rakhan Mahto executed two registered sale deeds on 03.03.2004 one in favour of his son Manoj Kumar and other in favour of his wife Smt. Urmila Devi. It is further submitted that the petitioner filed application on 25.01.2007 under Order 6, Rule 17 and under Order I Rule 10 read with Sec. 151 of the C.P.C. to make Man Rakhan Mahto as well as Manoj Kumar and Urmila Devi as party defendants in the said suit, as they were also liable to execute sale deed in favour of the petitioner due to subsequent development taken place during the pendency of the suit. However, the said application of the petitioner was dismissed vide order dated 19.04.2007 passed by learned Sub Judge-I, Ranchi holding inter alia that the petitioner had the knowledge of execution of power of attorney by Sudhir Kumar Mehta much earlier and therefore there had been no diligence on the part of the petitioner to carry out the amendment in the plaint at the right stage. It was also observed inter alia by the learned Sub Judge-I, Ranchi that in the suit for specific performance, only enforceability of the contract entered into between the parties is to be determined and therefore the proposed defendants are not the necessary parties to the suit as any effective decree could be passed even in their absence. Learned Sub Judge-I also held that since the plaintiff has already examined three witnesses and failed to establish that he had no knowledge about the subsequent development taking place during the pendency of the suit, the amendment application cannot be allowed after commencement of the trial. Learned counsel for the petitioner puts emphasis on the fact that though he had knowledge of execution of power of attorney by Sudhir Kumar Mehta (respondent no. 2) in favour of one Man Rakhan Mahato, yet he did not have any knowledge regarding the execution of the sale deed by said Man Rakahan Mahato in favour of his son Manoj Kumar and wife Urmila Devi. In fact, after execution of the sale deed by Man Rakhan Mahato, it become imperative on the part of the petitioner to implead Man Rakhan Mahato as well as Manoj Kumar and Urmila Devi as party defendants in the suit in whose absence, the decree prayed for by the petitioner being plaintiff in the suit, will have no consequence and thus their addition in the suit as defendants is necessarily required for effective adjudication of the suit.

(3.) Learned counsel for the respondents while defending the impugned order dated 19.04.2007 passed by learned Sub Judge-I, Ranchi submits that the learned court below has considered all the factual aspects advanced on behalf of the petitioner during the hearing of the application filed under Order 6, Rule 17 and Order I Rule 10 read with Sec. 151 of the C.P.C. and thereafter reached a conclusion that the plaintiff/petitioner had knowledge of execution of power of attorney by the respondent no. 2 in favour of Man Rakhan Mahato and therefore such application after framing of issues and examination of three plaintiff witnesses cannot be allowed. Learned court below has also rightly observed that Man Rakhan Mahto and Urmila Devi are not the necessary defendants in the suit, as they were not the party to the agreement executed by Sushila Kumari Mehta through her power of attorney holder respondent no. 2. It is therefore submitted by learned counsel for the respondents that the impugned order dated 19.04.2007 passed by the learned Sub Judge-I, Ranchi does not warrant any interference by this Court.