M/S Rudra Buildcorn vs M/S Kausaliya Homes
2022 Latest Caselaw 9460 MP

                                                  1
                              IN THE HIGH COURT OF MADHYA PRADESH
                                           AT JABALPUR
                                                   BEFORE
                                 HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                           ON THE 12th OF JULY, 2022

                                       MISC. PETITION No. 666 of 2022

                           Between:-
                      1.   M/S RUDRA BUILDCORN THROUGH BHAGIDAR
                           K.S. CHOUKSEYS/O OF SHRI S/L CHOUKSEY
                           AGED ABOUT 40 YEARS R/O HOUSE NO.5
                           VAIBHAV HOMES FACE -2 AYODHAYA BAIPASS
                           BHOPAL M.P. (MADHYA PRADESH)

                      2.   M.S    RUDRA    BUILDCORN     THROUGH
                           BHAGEEDAR RAMSWAPOOR MEENA W/O SHRI
                           MULCHAND MEENA GRAM SUKHI SEVANIYA
                           TEHSIL HUZUR (MADHYA PRADESH)

                      3.   M.S RUDRA BUILDCORN THROUGH BHAGIDAR
                           RAJENDRA SINGH BAGHEL S/O NETASINGH
                           B A G H E L HOUSE NO. A-134 NEW ASHOKA
                           GARDAN BHOPAL (MADHYA PRADESH)

                                                                        .....PETITIONER
                           (BY SHRI LALJI KUSHWAHA, ADVOCATE)

                           AND

                      1.   M/S KAUSALIYA HOMES THROUGH BHAGIDARI
                           PRASHANT CHOUKSEY AGED 37 YEARS R/O 302-
                           A RAM MANDIR ROAD ANAND NAGAR TESHIL
                           HAUZUR DISTRICT BHOPAL M.P. (MADHYA
                           PRADESH)

                      2.   SHRI KARTIK KAUSALIYA BABELE S/O SHRI
                           RAMSWAROOP, AGED ABOUT 24 YEARS,
                           OCCUPATION: NIL H.NO. 309/1 ASHOK VIHAR
                           AANNAN NAGAR TEHSIL HUZUR DISTRICT
                           BHOPAL PRESENT ADD. GRAM NAKATARA
                           TEHSIL (MADHYA PRADESH)

                      3.   M/S    RUDRA     BUILDCORN   THROUGH
                           BHAGEEDAR SHRI KARTIK BABELE S/O SHRI
Signature
 SAN      Not              RAMSWAROOP BABELE H.NO. 309/1 ASHOK
Verified
                           VIHAR AANNAN NAGAR TEHSIL HUZUR
Digitally signed by        DISTRICT BHOPAL (MADHYA PRADESH)
RASHMI RONALD
VICTOR
Date: 2022.07.13
17:26:50 IST
                             2
4.      STATE OF MADHYA PRADESH THROUGH
        TEHSIL   HUZUR DISTRICT BHOPAL (M.P)
        (MADHYA PRADESH)

5.      STATE OF MADHYA PRADESH THROUGH
        CO LLECTO R OLD SECRETARIAT BHOPAL
        (MADHYA PRADESH)

                                                             .....RESPONDENTS
        (BY SHRI SANKALP KOCHAR, ADVOCATE FOR RESPONDENT 1
        SHRI R. MATHAI, PANEL LAWYER FOR RESPONDENTS 4-5)

      Th is petition coming on for hearing this day, th e court passed the
following:
                                    ORDER

Heard on the question of admission.

2. This miscellaneous petition has been filed challenging the order dated

06/01/2022 passed in Civil Suit No.402-A/2021, whereby application filed by petitioners under Order 1 Rule 10 of CPC has been dismissed with the observation that the partners of defendant 2-M/s Rudra Buildcon are not necessary party and the petitioners are partners of the Firm or not, can be decided only after recording evidence in the case.

3. Learned counsel for the petitioners submits that agreement in question for sale was executed in the personal capacity by the defendant 1/Shri Kartik Babele and in the agreement, nothing has been mentioned about the partnership firm but in the plaint the partnership firm M/s.Rudra Buildcon has been made party as defendant 2 through only one of the partners Shri Kartik Babele, whereas according to the partnership deed, there are other partners also namely K.S. Chouksey (K.R. Chouksey), Ramswaroop Meena and Rajendra Singh Baghel. He submits that the application under Order 1 Rule 10 of CPC was not replied by defendants 1-2 and only the plaintiff filed the reply. He submits that because of pleadings made in plaint paragraph 5 and because of impleadment of

Firm as party defendant 2-M/s Rudra Buildcon, all the partners of the Firm are necessary parties. He also submits that as the partnership deed in question has not been disputed by learned Court below, therefore, the application deserved to be allowed.

4. Learned counsel for the respondent 1/plaintiff-M/s Kaushalya Homes submits that the plaintiff is dominus litis and he cannot be compelled to implead other persons as party to the litigation. He submits that the learned trial Court has rightly passed the impugned order rejecting the application under Order 1 Rule 10 of CPC.

5.Heard learned counsel for the parties and perused the record.

6. From the agreement in question dated 04/02/2018, it is clear that this agreement is in between Kartik Babele and Kaushalaya Homes and in this agreement, M/s Rudra Buildcon is not party. However, in the plaint, the firm has been made party as defendant 2-M/s Rudra Buildcon with the further averments made in paragraph 5 that the land in question is recorded in the revenue papers in the name of defendant 2-M/s Rudra Buildcon. It is well settled that the parties to the agreement are the only necessary parties for the suit for specific performance and any other party is not necessary party but in the present case, the plaintiff itself has made the partnership firm as defendant 2-M/s Rudra Buildcon and the present petitioners claim themselves to be partners by way of

partnership deed dated 24/06/2019 which according to the document dated 26/02/2014 appears to be registered partnership firm. As the plaintiff itself has made defendant 2-M/s Rudra Buildcon as party to the litigation, therefore, in view of the pleadings made in Para 5 of the plaint, all the partners of the firm appear to be necessary party in the present suit for specific performance.

7. From bare perusal of the order passed by learned Court below, it is

clear that operative part of the order is only in five lines which does not show that how the other partners of defendant 2-M/s Rudra Buildcon are not necessary party. While rejecting the application, the learned Court below has not given any reasons.

8. As per the judgment of Hon'ble the Apex Court in the case of Kranti Associates Private Limited & Anr. Vs. Masood Ahmed Khan & Ors. reported in (2010) 9 SCC 496, the reasons are heart beats of the order and if the order is unreasoned, that order is non-est in the eyes of law.

9. In view of the aforesaid as the learned Court below has not applied its mind to the aforesaid facts of the case, therefore, the impugned order dated 06/01/2022 is set aside with the further direction to the learned Court below to decide the application under Order 1 Rule 10 CPC afresh keeping in mind the aforesaid factual position.

10. With the aforesaid observations, this petition is disposed off.

(DWARKA DHISH BANSAL) JUDGE RS