Rajasthan High Court - Jodhpur

Lrs Of Deva Ram And Anr vs Shiv Prakash And Anr on 24 February, 2021

Bench: Arun Bhansali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civ. Leave To Appeal No. 5/2015

1. Deva Ram S/o. Chela Ram Since deceased through LRs 1/1 Chhanwar Lal S/o Late Sh. Deva Ram, aged about 57 years, 1/2 Amrit Lal S/o Late Sh. Deva Ram, Aged about 43 years, 1/3 Mangi Bai Wd/o Late Sh. Deva Ram, aged about 76 years, 1/4 Ahilya D/o Late Sh. Deva Ram, aged 55 years, All R/o Sankhlon ka Bass, Magra Punjla, Jodhpur.

2. Narpat Singh S/o Late Sh. Deva Ram (Deceased) through his LRs.

2/1 Smt. Saroja Wd/o Late Sh. Narpat Singh, aged 47 years, 2/2 Arjun Singh S/o Late Sh. Narpat Singh, aged 27 years, 2/3 Tarun Singh S/o Late Sh. Narpat Singh, aged about 23 years, 2/4 Shammu D/o Late Sh. Narpat Singh, aged 21 years. All R/o Sankhalon Ka Bass, Magra Punjla, Jodhpur.

----Appellant Versus

1. Shiv Prakash Soni S/o Lal Chand Soni, R/o. Mohalla Shahpura, Moti Chowk, Jodhpur.

2. Tilok Ram S/o Uda Ram since deceased through LRs 2/1 Chandiya Bai Wd/o Tilok Ram 2/2 Yashoda (Daughter in Law of Lt. Sh. Tilok Ram) W/o Late Sh. Lichman, 2/3 Arun (Grandson Late Sh. Tilok Ram) S/o Late Sh. Licham, 2/4 Ram Singh (Grandson Late Sh. Tilok Ram) S/o Late Sh. Licham, 2/5 Achlu Ram S/o Late Sh. Tilok Ram, 2/6 Gaje Singh S/o Late Sh. Tilok Ram, All are R/o Mandir Wala Bera, Mata ka Than, Pungla, Jodhpur 2/7 Sapna (Granddaughter Late Sh. Tilok Ram) D/o Late Sh. Lichman, W/o Sandeep Gehlot, R/o Padala Bear, Mandor, Jodhpur.

2/8 Damyanti (Daughter of Late Sh. Tilok Ram), W/o Madan Mohan, R/o Jeevan Das ka Kuan, Inside Nagori Gate, Jodhpur.

----Respondent

For Appellant(s) : Mr. J.L. Purohit, Sr. Advocate assisted by Mr. S. Ojha.

                                              (2 of 5)           [CLA-5/2015]


For Respondent(s)        :     Mr. Anil Kumar Singh.
                               Mr. H.R. Chawala.



           HON'BLE MR. JUSTICE ARUN BHANSALI

                                    Order

24/02/2021

This leave to appeal has been filed by the applicants

purportedly aggrieved against the judgment and decree dated

16.04.2015, passed by Additional District Judge No.6, Jodhpur in

Civil Original Suit No.46/2012, which was decided based on

compromise.

Various submissions have been made in the application

seeking to indicate the status of the applicants qua the suit

property and claiming that they are affected by the decree passed

by the trial court and, therefore, the leave to appeal may be

granted to them.

Learned counsel for respondent No.2 pointed out that during

the pendency of the suit from which the present leave to appeal

has arisen, an application under Order I Rule 10 CPC was filed by

the applicants herein, which application came to be dismissed by

the trial court on 23.08.2006 against which S.B. Civil Writ Petition

No. 6473/2006 was preferred, which also came to be rejected by

order dated 22.11.2006. Against the order passed by learned

Single Judge dismissing the writ petition, D.B. Special Appeal

(Writ) No.42/2007 was filed, which was also rejected by the

Division Bench on 19.01.2007 and in those circumstances once

the application for impleadment by way of speaking orders have

been rejected by the trial court and upheld by this Court while

dismissing the writ petition and the special appeal, the applicants

(3 of 5) [CLA-5/2015]

now cannot be heard to claim that they are affected by the decree

and be granted leave to appeal and, therefore, the application

deserves to be dismissed.

Learned counsel for the applicants attempted to make

submissions with reference to certain other litigations being S.B.

Civil Writ Petition No.7245/2010 that the applicants are entitled

for grant of leave to appeal in view of the circumstances. However,

it is fairly submitted that the order passed on application under

Order I Rule 10 CPC has been upheld by learned Single Judge and

Division Bench, stares in the face.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

It is not in dispute that the suit was filed by Shiv Prakash

Soni against Tilok Ram/LRs of Tilok Ram seeking specific

performance of contract, which came to be decided by way of

compromise by the impugned judgment and decree dated

16.04.2015.

During pendency of the suit the applicants had filed

application under Order I Rule 10 CPC seeking impleadment as

party - respondent in the suit. The trial court by its order dated

23.08.2006, relying on judgment in the case of Kasturi v.

Iyyamperumal: 2005 (6) SCC 733, rejected the application.

Feeling aggrieved, S.B. Civil Writ Petition No. 6473/2006 was

filed, the same came to be rejected by the following order on

22.11.2006:-

"Heard.

The petitioner may file a suit for declaration of his rights. He has been denied to be impleaded as party in that suit his rights may not be properly depended.

(4 of 5) [CLA-5/2015]

No interference is called for. The writ

petition is dismissed."

Against order dated 22.11.2006 D.B. Special Appeal (Writ)

was filed, wherein, the Division Bench by its order dated

19.01.2007 while dismissing the appeal, observed as under:-

"Having heard learned counsel for the appellant we are of the opinion that no interference is called for in the order passed by the Addl. District Judge, [Fast Track No.2] in refusing to implead the applicants claiming some title in the property which is the subject mater of a suit for specific performance of contract between the parties to the suit.

The appellants being not privy to the contract, which is sought to be specifically enforced, are not necessary parties to be impleaded in suit and, therefore, if the trial court has declined to implead them parties to the pending suit, it cannot be said that the trial court has committed any error of jurisdiction. The claim of the petitioners would necessarily require an inquiry into their title vis-a-vis contracting parties, which is not the scope and ambit of a suit for specific performance of an agreement to sale an immovable property. Moreover, the right, title and interest, if any, claimed by the petitioners remain unaffected by the orders passed in the suit for specific performance of contract between the contracting parties and, therefore, they do not suffer any legal injury by not being impleaded as party to that suit.

Consequently, this appeal fails and is hereby dismissed."

(emphasis added)

A perusal of the orders passed by the trial court, learned

Single Judge and the Division Bench, clearly reveals that the claim

(5 of 5) [CLA-5/2015]

of the applicants of getting impleaded to the pending suit, was

categorically denied.

The learned Single Judge observed that the petitioners may

file a suit for declaration of their rights and the Division Bench,

indicated that the applicants were not necessary parties to be

impleaded in the suit and that right, title and interest, if any,

claimed by the petitioners remained unaffected by the orders

passed in the suit for specific performance of the contract between

the contracting parties and, therefore, the petitioners do not suffer

any legal injury.

The adjudication made by the Division Bench fully and finally

settles all the issues now sought to be raised by the applicants in

the present application seeking leave to appeal and applicants are

bound by the same. The order which has been passed by the

Division Bench takes care of all the issues raised and the

apprehensions expressed by the applicants.