Gauhati High Court
Harmohan Kumar vs Sanjay Kumar Baruah And Anr on 3 December, 2021
Page No.# 1/3
GAHC010271202017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/281/2017
HARMOHAN KUMAR
S/O LATE KULADHAR KUMAR, R/O HOUSE NO. 401, NEAR GOPAL
KRISHNA NAMGHAR, RUKMINI GAON, GUWAHATI-22
VERSUS
SANJAY KUMAR BARUAH and ANR.
S/O LATE BIRENDRA KUMAR BARUAH, R/O S.C. GOSWAMI ROAD,
PANBAZAR, GUWAHATI-1
2:SMTI PRAMILA JYOTI GOSWAMI
W/O LATE INDRAJIT GOSWAMI
R/O MUKUNDA PATH
HOUSE NO.1
OPPOSITE-SURUJ NAGAR
SIX MILE
KHANAPARA
GUWAHATI-78102
Advocate for the Petitioner : MR.D CHOUDHURY
Advocate for the Respondent :
Page No.# 2/3
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 03-12-2021
Heard Mr. D Choudhury, the learned counsel appearing on behalf of the petitioner.
2. This is an application under Article 227 of the Constitution of India challenging the order
dated 10.04.2017 passed by the learned Civil Judge No. 3, Kamrup(M), Guwahati in petition
no. 3005/2016 whereby the petitioner's application seeking impleadment in the suit has been
rejected.
3. Admittedly, the instant suit is a suit for specific performance of an agreement dated
24.02.2016 between the respondent no. 1 and the respondent no. 2. The petitioner claims
independent right in respect to a part of the said suit land which the subject matter of the
agreement for sale which is independent of the rights of the plaintiff in the suit.
4. It is no longer res-integra in view of the judgment of the Supreme Court rendered in the
case of Kasturi v. Iyyamperumal and ors. reported in (2005)6 SCC 733 that who can be joined
in a suit for a specific performance. It has been categorically held that a person who claims
adversely to the claim of a vendor of the agreement for sale, is not a necessary party to the
said suit. Paragraph 7 of the said judgment is quoted hereinbelow:
"7. In our view, a bare reading of this provision, namely, second part of Order 1
Rule 10 sub-rule (2) CPC would clearly show that the necessary parties in a suit
for specific performance of a contract for sale are the parties to the contract or
if they are dead, their legal representatives as also a person who had purchased
the contracted property from the vendor. In equity as well as in law, the
contract constitutes rights and also regulates the liabilities of the parties. A
purchaser is a necessary party as he would be affected if he had purchased
with or without notice of the contract, but a person who claims adversely to the
claim of a vendor is, however, not a necessary party. From the above, it is now
clear that two tests are to be satisfied for determining the question who is a
necessary party. Tests are - (1) there must be a right to some relief against
such party in respect of the controversies involved in the proceeding; (2) no
effective decree can be passed in the absence of such party."
Page No.# 3/3
6. The Court below have taken into consideration the said law laid down by the Supreme
Court and have passed the impugned order and I do not see any justification to interfere with
the said order. Accordingly, the instant petition stands dismissed.
7. The dismissal of the instant petition or application under Order I Rule 10(2) of CPC filed
by the petitioner before the Trial Court shall not preclude the petitioner to initiate appropriate
proceeding as admissible under the law.
8. Interim order passed earlier stands vacated.
9. Registry is directed to intimate the passing of this order to the Court below within a
period of fifteen days from today.
10. With the above observations, this instant petition stands dismissed. No costs.
JUDGE
Comparing Assistant
