Punjab-Haryana High Court
Malkiat Kaur vs Ajmer Singh And Another on 10 May, 2010
Author: L.N. Mittal
Bench: L.N. Mittal
Civil Revision No. 5842 of 2009 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Revision No. 5842 of 2009
Date of decision : May 10, 2010
Malkiat Kaur
....Petitioner
versus
Ajmer Singh and another
....Respondents
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. Manmohan Singh, Senior Advocate with
Mr. Chanan Singh, Advocate, for the petitioner
Mr. JS Gill, Advocate, for respondent no. 1
Mr. Amandeep Saini, Advocate, for respondent no. 2
L.N. Mittal, J. (Oral)
Plaintiff Malkiat Kaur has filed instant revision petition under Article 227 of the Constitution of India assailing order dated 7.8.2009 passed by learned Civil Judge (Junior Division), Samrala, thereby allowing application moved by respondent no. 1 Ajmer Singh under Order 1 Rule 10 of Code of Civil Procedure (in short, CPC) for being impleaded as party to the suit instituted by petitioner-plaintiff Malkiat Kaur against her husband Sucha Singh respondent no. 2 herein and thereby ordering impleadment of Ajmer Singh as party defendant to the suit.
Civil Revision No. 5842 of 2009 -2-
Petitioner has filed suit against respondent no. 2 for maintenance. She has claimed arrears of maintenance for three years preceding the filing of the suit @ Rs 3000/- per month amounting to Rs 1,08,000/-. The petitioner also claimed future maintenance at the same rate of Rs 3000/- but by amendment of suit, the petitioner claimed future maintenance @ Rs 10,000/- per month. The petitioner has also sought creation of charge over the suit land owned by respondent no. 2 for the amount of maintenance.
Respondent no. 1 herein moved application under Order 1 Rule 10 CPC for being impleaded as party to the suit alleging that respondent no. 2 entered into agreements to sell dated 20.11.2004, Annexure P/4 and dated 17.11.2004, Annexure P/3 for sale of the suit land to respondent no. 1 herein. Respondent no. 1 claimed protection under section 53-A of the Transfer of Property Act (in short TP Act). Respondent no. 2 herein in the written statement filed in the suit admitted the said agreements. On these allegations, respondent no. 1 claimed to be necessary party to the suit.
The aforesaid application was opposed by the petitioner- plaintiff alleging that her husband respondent no. 2 (defendant) is liable to provide maintenance to the petitioner and therefore, the petitioner has a right to seek creation of charge over the property of respondent no. 2 for the maintenance amount.
Learned trial court allowed application moved by respondent no. 1. Feeling aggrieved, the plaintiff has preferred the instant revision petition.
I have heard learned counsel for the parties and perused the Civil Revision No. 5842 of 2009 -3- case file.
Learned counsel for the petitioner vehemently contended that the agreements required compulsory registration in view of section 17(1-A) of the Registration Act as possession of the suit land was allegedly delivered by respondent no. 2 to respondent no. 1 at the time of agreements. It was also contended that respondent no. 1 is not necessary or proper party to the suit as the dispute is between the wife and the husband. Reliance in support of these contentions has been placed on various judgments namely Rambhau Namdeo Gajre versus Narayan Bapuji Dhotra (Dead) through LRs, 2004(8) SCC 614; CM No. 128 of 2007 in LPA No. 702 of 1996 in Probate No. 3 of 1992, titled Basant Kaur versus General Public & Ors. decided on 16.10.2007 ; Gurmail Kaur versus Darbara Singh and another, 2007(1) RCR (Civil) 350 and Baldev Singh versus Surinder Mohan Sharma and others, 2002(4) RCR (Civil) 781.
On the other hand, learned counsel for respondent no. 1 contended that the suit has been filed collusively between the wife and the husband i.e. the petitioner and respondent no. 2 to defeat the rights of respondent no. 1 under the agreements. To infer collusion, it is contended that Mr. Chanan Singh, Advocate who has filed the instant revision petition on behalf of the wife is representing husband Sucha Singh respondent no. 2 in other litigation including a revision petition filed in this Court and also litigation before the revenue courts. It was also pointed out that respondent no. 2 in his written statement admitted the agreements entered into by him with respondent no. 1 but after amendment of plaint, respondent no. 2 denied the agreements. It was also pointed out that the Civil Revision No. 5842 of 2009 -4- petitioner by way of amendment has raised her claim for maintenance to more than three times the amount claimed in the original plaint i.e. from Rs 3000/- to Rs 10,000/- per month.
On the other hand, learned counsel for the petitioner contended that mere agreement to sell does not create any interest or charge over the suit property in favour of respondent no. 1 as is manifest from section 54 of the TP Act.
I have considered the rival contentions and perused the records. Prima facie collusion between the petitioner and respondent no. 2 is manifest on record. The petitioner initially claimed maintenance at the rate of Rs 3000/- per month but later on enhanced it to Rs 10,000/- per month i.e. more than three times the original claim. Respondent no. 2 admitted the agreements initially but has later on denied the same. Respondent no. 2 is also said to have admitted the maintenance claim of the petitioner @ Rs 10,000/- per month although initially respondent no. 2 disputed the maintenance claim of the petitioner even at the rate of Rs 3000/- per month. It is not even disputed that Mr. Chanan Singh, Advocate who has filed the instant revision petition on behalf of petitioner is representing her husband respondent no. 2 in other litigation. In view of this prima facie collusion between the petitioner and respondent no. 2, it is essential to implead respondent no. 1 as party to the suit so that his right under the agreements is not defeated by default in view of collusion between the petitioner and respondent no. 2. In view of said collusion, the judgments cited by learned counsel for the petitioner are not applicable to the facts of the case in hand.
Civil Revision No. 5842 of 2009 -5-
As regards requirement of compulsory registration of the agreements, learned counsel for respondent no. 1 has pointed out that possession of the suit property was not delivered under the agreements but was to be delivered at the time of sale deeds. However, subsequently when the petitioner started claiming creation of charge over the suit land, respondent no. 2 after receiving more amount delivered possession of the suit land to respondent no. 1 by executing receipt.
For the reasons aforesaid and in the very peculiar facts and circumstances of the case, I find that respondent no.1 is necessary party to the suit. The application moved by respondent no. 1 for impleading him as defendant no. 2 has been rightly allowed by the trial court and the impugned order passed by the trial court does not suffer from any perversity or illegality so as to call for interference in exercise of powers of superintendence under Article 227 of the Constitution of India. The revision petition is thus found to be without any merit and is accordingly dismissed.
However, I am expressly making it clear that I have not expressed any opinion on merits of the rival claims of the parties.
( L.N. Mittal )
May 10, 2010 Judge
'dalbir'