Satendra Kumar Gupta vs Mahendra Kumar Namdev
2023 Latest Caselaw 3219 MP

                                                       1
                            IN    THE     HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                    BEFORE
                                    HON'BLE SHRI JUSTICE MANINDER S. BHATTI
                                           ON THE 22 nd OF FEBRUARY, 2023
                                           MISC. PETITION No. 2700 of 2019

                           BETWEEN:-
                           SATENDRA KUMAR GUPTA S/O SHRI ANANDILAL
                           GUPTA, AGED ABOUT 58 YEARS, OCCUPATION:
                           SHOPKEEPER R/O BADI BAJARIYA RAM WARD BINA
                           TEH. BINA (MADHYA PRADESH)

                                                                             .....PETITIONER
                           (BY MS. SANJANA SAHNI - ADVOCATE)

                           AND
                           1.    MAHENDRA KUMAR NAMDEV S/O SHRI
                                 ROSHANLAL NAMDEV, AGED ABOUT 45 YEARS,
                                 R/O BADI BAJARIYA RAM WARD BINA TEH. BINA
                                 (MADHYA PRADESH)

                           2.    ROSHANLAL NAMDEV(DEAD) THROUGH LEGAL
                                 REPRESENTATIVE SMT. SUSHILA BAI W/O
                                 ROSHANLAL NAMDEO, AGED ABOUT 80 YEARS,
                                 R/O, RAM WARD, BADI BAJARIYA,BINA, TEHSIL
                                 BINA, DISTRICT SAGAR (MADHYA PRADESH)

                           3.    SMT. CHANDA BAI W/O B.P. NAMDEO, AGED
                                 ABOUT 62 YEARS, R/O ITWARI BERI SAGAR
                                 TEHSIL AND DISTRICT SAGAR (MADHYA
                                 PRADESH)

                           4.    SMT. MEENA W/O MAHENDRA NAMDEO, AGED
                                 ABOUT 58 YEARS, R/O 69 SURYADEV NAGAR
                                 INDORE (MADHYA PRADESH)

                           5.    SMT. USHA W/O MADANGOPAL NAMDEO, AGED
                                 ABOUT 57 YEARS, R/O 36 MAA PARWATI NAGAR
                                 BHOPAL (MADHYA PRADESH)

                           6.    SMT. SEEMA W/O DEEPAK NAMDEO, AGED
                                 ABOUT 54 YEARS, R/O 351 SHRIRAM NAGAR
                                 INDORE (MADHYA PRADESH)
Signature Not Verified
Signed by: KRISHNA SINGH
Signing time: 2/24/2023
1:33:12 PM
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                                                                                         .....RESPONDENTS
                           (BY SHRI ABHIJIT BHOWMIK- ADVOCATE FOR RESPONDENT NO.2 )

                                  T h is petition coming on for orders, this day, t h e court passed the
                           following:
                                                                 ORDER

This is a petition by the plaintiff assailing the order dated 27.04.2019, passed in Civil Suit No.15-A/2018, by the court of Civil Judge, Class I, Bina, District Sagar.

It is contended by the learned counsel for the petitioner/plaintiff that, an agreement was entered into between the Plaintiff and defendant which has been brought on record as Annexure P-1, as regards, the property situate on Khasra

No.384/26, P.C.No.51 area 608 sq. ft., Badi Bajaria, Ram Ward, Bina. As, in terms of the agreement, the sale deed was not being executed, the plaintiff filed a suit for specific performance which has been brought on record as Annexure P-2. During pendency of this Suit, an application was moved by Respondent No.2 herein under Order 1 Rule 10 of CPC, submitting inter alia that he has share in the property which is in dispute and therefore, his impleadment is necessary for proper adjudication of the matter and no effective decree can be passed in absence of the applicant therein. The said application has been allowed by the trial Court vide impugned order dated 27.04.2019. Assailing the said order, this petition is filed.

Learned Counsel for the petitioner contends that the suit for specific performance of the contract is arising out of an agreement which is being brought on record as Annexure - P-2. In the said agreement, the plaintiff entered into contract with the defendant as regards the purchase of property measuring 608 sq. ft. The respondent No.2 sought impleadment in the suit and

Signature Not Verified impleadment has been allowed by the trial Court. The impugned order by the Signed by: KRISHNA SINGH Signing time: 2/24/2023 1:33:12 PM

trial Court is contrary to the law laid down by the full bench of this court in Civil Rev.No.125/1971 (Panne Khushali and Another Vs. Jeewanlal Mathoo Khatik and another).

Learned Counsel for the petitioner contends that in a suit for specific performance for sale, a stranger to the contract has no right to seek intervention and accordingly, the order impugned deserves to be set aside. Moreover, it is contended by the counsel that if the Respondent No.2 has any interest, he can file a suit, seeking declaration in his favour. So far as the impugned order is concerned, the same deserves to be quashed.

Per contra the counsel for respondent No.2 submits that Respondent No.2 was a necessary party and this fact is evident from the documents produced on record alongwith I.A.No.12249/2022. It is contended by the counsel that the entire 608 sq ft. of land does not belong to the defendants. On the contrary, Respondent No.2 has also her share in the said property. Therefore, her impleadment was necessary. This aspect of the matter was entirely taken note of by the trial Court. The counsel while placing reliance on the decision of apex Court in (2015) 13 SCC 579 (Baluram Vs. P. Chellathangam and Others) submit that no interference is warranted.

Heard the rival submissions of both the parties and perused record. A perusal of the order impugned contained in Annexure P-5 reflect that

the court while dealing with an application moved by respondent No.2 under order 1 Rule 10 of CPC observed that the impleadment of the respondent No.2 in the litigation is necessary so as to prevent multiplicity of litigation. A perusal of the order impugned makes it palpably clear that the trial Court did not take into consideration the agreement which is contained in Annexure P-1 and also, Signature Not Verified Signed by: KRISHNA SINGH Signing time: 2/24/2023 1:33:12 PM

the prayer made in the Plaint. The suit in question is filed by the plaintiff on the ground that on 17.01.2017, the defendant entered into an agreement and agreed to sell 608 sq. ft. of land situate on aforesaid Khasra. The plaint further reflect that a sum of Rs.2,00,000/- towards part of consideration was paid to the defendant on 16.01.2018 and as the defendant did not execute the sale deed, the plaintiff filed the suit with a prayer that the defendant be directed to execute the sale deed in favour of the plaintiff. The respondent No.2, filed an application in the said suit under order 1 Rule 10 of CPC.

A perusal of paragraph 3 of the application reflect that the respondent No.2 submitted that he is father of the defendant and, the property situate on Khasra No.384/2016 is ancestral property and half of the share of the said property has been received by the respondent No.2 upon partition and the remaining half has been purchased by the respondent No.2 from their respective shareholders. It is further contended by the respondent No.2 that as the defendant is son of the respondent No.2, his name was recorded in the sale deed at the time of purchase of the property. Thus, a perusal of the aforesaid makes crystal clear that in the present case, there is suit for specific performance of contract of sale and the respondent No.2 is also claiming himself to be one of the co-sharer in the property in question. The identical dispute was referred to the full bench of this Court in Panne Khushali (supra) and the following question was referred to the full bench for consideration:-

"Whether in a suit for a specific performance of a contract for sale, instituted by a purchaser against a vendor, a stranger to the contract, who, contending that the contracted property is a joint family property, of which he is also the co-owner, wants to intervene in the suit, is entitle to be added as a party."

Signature Not Verified Signed by: KRISHNA SINGH Signing time: 2/24/2023 1:33:12 PM

The aforesaid question was dealt with by the full bench and, the full bench concluded in para 23 as follows:-

"Strangers to the contract making a claim adverse to the title of the defendant (vendor) contending that they are the co-owners of the contracted property are neither necessary nor proper party an are, therefore, non entitled to be joined as parties to the suit."

Thus, the full bench, concluded that stranger to the contract under the garb of being co-owners of the contracted property are neither necessary nor proper party. Thus, not entitled to join as party to the suit.

Therefore, in view of the law laid down by the full bench in Panne Khushali (supra), the order impugned passed by the trial Court is unsustainable.

So far as the judgment relied upon by the respondent in Baluram (supra) is concerned, in the said case, impleadment was sought by the beneficiary of the Trust property. In the said case, the defendant in the suit while acting as a trustee of the Trust had entered into agreement to sell the Trust property. Therefore, the impleadment was sought by the beneficiary of the Trust property and accordingly, the apex court concluded that the beneficiary was a necessary party. The said judgment in Baluram is factually distinguishable.

Accordingly, in view of the law laid down by the Full bench of this Court in Panne Khushali (supra), the impugned order being unsustainable, deserves to be and accordingly set aside.

With the aforesaid, the petition stands allowed.

(MANINDER S. BHATTI) Signature Not Verified Signed by: KRISHNA SINGH Signing time: 2/24/2023 1:33:12 PM

JUDGE veni

Signature Not Verified Signed by: KRISHNA SINGH Signing time: 2/24/2023 1:33:12 PM