Punjab-Haryana High Court
Gurwinder Singh @ Gurminder Singh ... vs Rajinder Singh And Another on 27 September, 2022
CR No.3308 of 2022 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
118 CR No.3308 of 2022
Reserved on 23.09.2022
Pronounced on 27.09.2022
Gurwinder Singh @ Gurminder Singh and another .........Petitioners
VERSUS
Rajinder Singh and another ..........Respondents
CORAM: HON'BLE MR JUSTICE HARKESH MANUJA
Present:- Mr. M. L. Saggar, Senior Advocate, with
Ms. Arman Saggar, Advocate, for the petitioners.
Mr. S. S. Siwatch, Advocate and
Mr. Abhjay S. Mann, Advocate, with
Mr. Gurwinder Singh, Advocate, for respondent No.1
*****
HARKESH MANUJA, J. (Oral)
The present Civil Revision has been filed against the order dated
01.07.2022, whereby an application under Order 1 Rule 10 CPC filed at the
instance of the petitioners has been dismissed.
The facts leading to the case in hand are that a suit for specific
performance, based on an agreement to sell dated 28.11.2014, came to be filed at
the instance of respondent No.1 against respondent No.2. The suit was filed on
19.03.2018. During pendency of the suit, on 22.01.2021, the present petitioners
moved an application under Order 1 Rule 10 CPC for being impleaded as a party,
claiming themselves to be the owner of the suit land based on a registered Will
dated 18.03.1991. Notice of the aforesaid application was served upon
respondent No.1-plaintiff. A reply dated 21.04.2022 was filed on his behalf and
it would be relevant to mention here that the petitioners happen to be real sons of
respondent No.2 i.e. the vender/defendant in the suit.
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The learned trial Court vide impugned order dated 01.07.2022 has
dismissed the application filed at the instance of the petitioners. In the
application filed under Order 1 Rule 10 CPC, the petitioners pleaded that the land
in dispute beside some other land, was owned by their grandfather Bakshish
Singh along with his brother Nasib Singh.
At the time of hearing, it has been contended by learned counsel
representing the petitioners that on 18.03.1991, both Bakshish Singh and Nasib
Singh executed a registered Will in favour of their grandchildren including the
petitioners while they were minor at that time. He further submitted that
Bakshish Singh expired on 13.02.2011 whereas Nasib Singh predeceased him
and mutation regarding the estate of Nasib Singh was entered at Sr. No. 1665
dated 23rd May, 2011, in favour of petitioners whereas, on the same day, a
mutation number 1166 regarding the estate of Bakshish Singh was entered in
favour of their father i.e., respondent No.2. It was only in 2011, when they came
to know all this as well as few subsequent alienations made by their father, they
filed a suit for declaration claiming ownership based on registered Will dated
18.03.1991. The said suit was filed on 10.01.2017 & the same was decreed vide
judgment and decree dated 04.12.2018 wherein the validity of the registered Will
dated 18.03.1991 was upheld, however, the suit was dismissed qua the relief of
declaration on the ground that the same was collusive in nature between the
petitioners and respondent No.2. It has been pointed out that the judgment and
decree dated 04.12.2018, is already under challenge before the first appellant
Court.
Based on the aforesaid facts, it has been contended on behalf of the
petitioners that since the validity of registered Will dated 18.03.1991 already
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stands established in the judgment and decreed dated 04.12.2018, as such, they
have got semblance of interest in the suit property and their rights would thus, be
affected from the outcome of the present suit. It has also been submitted that
since it is the petitioners, who are in possession of the suit property, it would even
be in the interest of the respondent No.1 that they are impleaded as party for
effective implementation of the decree, if any, passed in their favour. Learned
counsel for the petitioners also refers to observations made by the Hon'ble
Supreme Court in para-16 of case titled as Kasturi Vs. Iyyamperumal & Ors,
2005 (2) R.C.R.(Civil) 691, in his support which is reproduced as under :
"......Apart from that, the intervener must be directly and legally
interested in the answers to the controversies involved in the suit for
specific performance of the contract for sale. In Amol Vs. Rasheed Tuck
and Sons Ltd. [1956(1) All Eng. Reporter, 273] it has been held that a
person is legally interested in the answers to the controversies only if he
can satisfy the Court that it may lead to a result that will effect him
legally........"
On the other hand, the prayer made by the petitioners has been
opposed by respondent No.1, stating that the petitioners are not party to the
agreement to sell and therefore they are neither necessary nor proper parties to
the suit and thus, cannot be impleaded. He further submits that being strangers to
the contract, they are raising title adverse to the vendor. He also submits that
respondent No.1 being dominus litis, cannot be compelled to contest the suit
against any other party against his wish. Respondent No.1 also raises the issue of
collusiveness between the petitioners and respondent No.2. He points out that
the petitioners became major somewhere in 2002-03 whereas, the mutation were
sanctioned in favour of their father i.e., respondent No.2 in the year 2011 i.e.,
much after their attaining majority, still the said registered Will was never got
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enforced by them. He also points out that the agreement in question is dated
28.11.2014 whereas, the suit for declaration qua this property, based on registered
Will, was filed by the petitioners on 10.01.2017 i.e. much thereafter. Learned
counsel representing respondent No.1 further submits that the suit for specific
performance was filed on 19.03.2018 whereas the present application under
Order 1 Rule 10 CPC was filed by the petitioners on 22.01.2021. Based on the
aforesaid facts, he pleads that the present application is mala fide and result of
collusion between the petitioners and his vendor, who is respondent No.2 and is
father of the petitioners, and thus, the entire purpose of filing the present
application is to delay the proceedings in the suit. To support his submissions,
learned counsel for respondent No.1 places reliance upon para-6 and 10 of the
judgment in the case of Kasturi Vs. Iyyamperumal & Ors, 2005 (2)
R.C.R.(Civil) 691 and the same are reproduced here as under:
"6. In our view, a bare reading of this provision namely, second part of
Order 1 Rule 10 sub-rule (2) of the 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 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 proceedings (2) no effective decree can be passed in the absence of
such party.
10. As noted hereinearlier, two tests are required to be satisfied to
determine the question who is a necessary party, let us now consider who
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is a proper party in a suit for specific performance of a contract for sale.
For deciding the question who is a proper party in a suit for specific
performance the guiding principle is that the presence of such a party is
necessary to adjudicate the controversies involved in the suit for specific
performance of the contract for sale. Thus, the question is to be decided
keeping in mind the scope of the suit. The question that is to be decided in
a suit for specific performance of the contract for sale is to the
enforceability of the contract entered into between the parties to the
contract. If the person seeking addition is added in such a suit, the scope
of the suit for specific performance would be enlarged and it would be
practically converted into a suit for title. Therefore, for effective
adjudication of the controversies involved in the suit, presence of such
parties cannot be said to be necessary at all."
I have heard learned counsel for the parties and have gone through
the records.
I don't find any merit in the present revision petition. Though based
on registered Will dated 18.03.1991, followed by judgment and decree dated
04.12.2018 passed by the Court of learned Civil Judge (Jr. Divn.) SAS Nagar
(Mohali), the petitioners have tried to base their claim by pointing out that once
the validity of execution of registered Will in their favour qua the suit land was
upheld, their non-impleadment in the present suit for specific performance filed
at the instance of respondent No.1 would directly impact their interest in the suit
property. I am not convinced with this submission made on behalf of the
petitioners. A sequence of fact narrated here in below would show that the
present application is merely an afterthought and an ingenuine effort to create
impediments in the claim for specific performance made by respondent No.1
against respondent No.2. Necessary facts ascertained from the records based on
which I have derived at my aforesaid conclusions are as follows:
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Sr. Date Event
No.
(a) 18.03.1991 Registered Will executed in favour of
petitioners by their grandfather while
petitioners were minor.
(b) 2002-03 Petitioners became major.
(c) 13.02.2011 Petitioners' grandfather expired.
(d) 23.05.2011 Mutation No.1166 entered in the name of
respondent No.2 (father) regarding the suit
property owned by Bakshish Singh
(grandfather).
(e) Thereafter respondent No.2 (father) started
selling agricultural land based on aforesaid
mutation.
(f) 28.11.2014 Agreement to sell between respondents No.1
and 2.
(g) 25.10.2016 Target date fixed under the aforesaid
agreement.
(h) 10.01.2017 Petitioners filed suit for declaration based on
the Will dated 18.03.1991 against their father-
respondent No.2.
(i) 10.05.2017 Issues are framed in civil suit for declaration
filed by petitioners wherein their father
(respondent No.2) makes a statement that he
does not intend to file written statement.
(j) 19.03.2018 Present suit for specific performance filed by
respondent No.1 against respondent No.2.
(k) 04.12.2018 In a non-contested suit, learned Civil Judge (Jr.
Divn.), SAS Nagar, Mohali, upholds the
validity of the registered Will dated 18.03.1991
in favour of petitioners, declining relief of
declaration by holding the suit to be collusive
in nature.
(l) 22.01.2019 Present petitioners filed an application under
Order 1 Rule 10 CPC for being impleaded as
defendants in the suit for specific performance.
(m) 21.04.2022 Reply to the application at the instance of
respondent No.1.
(n) 01.07.2022 The impugned order was passed.
From the sequence of facts narrated hereinabove, it is pointed out
here that the petitioners despite having become major way back in the year 2002-
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03, never ever made any effort to get the land in question transferred in their
name on the basis of said Will dated 18.03.1991. It was only when their father
entered into an agreement to sell with respondent No.1, a suit for declaration was
filed more than two years thereafter. Further, even the present application came
to be filed after almost 3 years of the pendency of the present suit for specific
performance filed by respondent No.1. Even a perusal of the memo of parties
filed along with the present revision petition shows that both the petitioners as
well as respondent No.2 are residing in the same village and perhaps the same
house, in the absence of any evidence to the contrary. The aforementioned facts
lead to an irresistible conclusion that the application in hand was filed by the
petitioners as a part of their mala fide attempt to create unnecessary impediments
in disposal of the suit for specific performance filed at the instance of respondent
No.1. Besides aforesaid, it is settled proposition of law that in a suit for specific
performance it is the parties to an agreement or in a given case their successors in
interest, who are proper and necessary parties. In the present facts and
circumstances, neither any relief has been claimed by respondent No.1 against
petitioners in his suit for specific performance, nor it is that an effective decree
cannot be passed in their absence.
Further, it is respondent No.1-plaintiff, who is the dominus litis and as
such, he can't be asked to contest a suit against any person in opposition to his
own wish. This may however, be subject to that the non-impleading of any other
person against the wish of plaintiff has to be at his risk. A reference in this
regard can be made to the following observations from the latest judgment
passed by the Hon'ble Supreme Court in case of Sudhamayee Pattnaik Vs.
Bibhu Prasad Sahoo passed in Civil Appeal No.6370 of 202, decided on
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16.09.2022:-
".....As per the settled position of law, the plaintiffs are the dominus litis.
Unless the Court suo motu directs to join any other person not party to
the suit for effective decree and/or for proper adjudication as per Order 1
Rule 10 CPC, nobody can be permitted to be impleaded as defendants
against the wish of the plaintiffs. Not impleading any other person as
defendants against the wish of the plaintiffs shall be at the risk of the
plaintiffs....."
It may also be pointed out here that even the decree passed in favour
of respondent No.1 may not affect the rights of the present petitioners being not
party to the suit and in case, any need arises, they can well defend their rights
invoking remedies as per law. Again, I find support from observations made in
paragraph-14 of the case titled Kasturi Vs. Iyyamperumal & Ors, 2005 (2)
R.C.R.(Civil) 691, the relevant portion reads as under:
"It may also be observed that in the event, the appellant obtains a decree
for specific performance of the contracted property against the
respondent Nos.2 and 3, then, the Court shall direct execution of deed of
sale in favour of the appellant in the event respondent Nos.2 and 3
refusing to execute the deed of sale and to obtain possession of the
contracted property he has to put the decree in execution. As noted
hereinearlier, since the respondent Nos.1 and 4 to 11 were not parties in
the suit for specific performance of a contract for sale of the contracted
property, a decree passed in such a suit shall not bind them and in that
case, the respondent Nos.1 and 4 to 11 would be at liberty either to
obstruct execution in order to protect their possession by taking recourse
to the relevant provisions of the CPC, if they are available to them, or to
file an independent suit for declaration of title and possession against the
appellant or respondent No.3. On the other hand, if the decree is passed
in favour of the appellant and sale deed is executed, the stranger to the
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contract being the respondent Nos.1 and 4 to 11 have to be sued for
taking possession if they are in possession of the decretal property."
In view of the discussion made hereinabove, I do not find any merit
in the present revision petition and the same is, therefore, dismissed, upholding
the order dated 01.07.2022 passed by the learned trial Court whereby, application
filed at the instance of petitioners, invoking Order 1 Rule 10 CPC for impleading
them as a party in Civil Suit No.186 of 2018 has been dismissed.
(HARKESH MANUJA)
27.09.2022 JUDGE
anil
Whether speaking/reasoned : Yes/No
Whether reportable Yes/No
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