Rajasthan High Court - Jaipur
Smt Kamla vs Somnath Grah Nirman Sah Ors on 14 December, 2011
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No. 6218/2011 S.B. Civil Misc. Stay Application No. 5649/2011 (Smt. Kamla Versus Somnath Grah Nirman Sahakari Samiti Limited & Others) Date of Order :: 14th December, 2011 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Hemraj Gaur, counsel for the petitioner. Mr. Nawal Singh Sikarwar) counsel for the Mr. J.P. Gupta ) respondents BY THE COURT:
Challenge in the instant writ petition is to the order dated 28th March, 2011, whereby the learned Civil Judge (Jr. Division), Dausa dismissed the application of the petitioner-plaintiff filed under Order 1 Rule 10 (2) CPC.
2. Having heard the learned counsel for the parties and carefully perused the relevant material on record including the impugned order, it is noticed that the petitioner-plaintiff Smt. Kamla filed a suit for specific performance of contract and permanent injunction against the respondents defendants no. 1 to 16. During the pendency of the suit, the petitioner-plaintiff filed an application under Order 1 Rule 10 CPC imploring the court to implead Municipality, Dausa as a party-defendant. The learned trial court dismissed the application observing that the Municipality, Dausa was not a necessary party in the suit, hence it could not be impleaded as a party-defendant.
3. Learned counsel for the petitioner canvassed that as of today, the suit land vests in the Municipality, Dausa as the proceedings under Section 90B of Rajasthan Tenancy Act have been in progress. Since the Municipality, Dausa is the owner of the suit land, there cannot be a specific performance of contract unless the Municipality, Dausa is impleaded as a party-defendant in the suit. The learned trial court has arbitrarily dismissed the application sans assigning any cogent reason and thus, the impugned order deservese to be set-aside.
4. E Contra, the learned counsel for the respondents has defended the impugned order stating the same to be just and proper and contended that the same did not warrant any intervention. Learned counsel further canvassed that the agreement to sale was entered into between the plaintiff-petitioner and the respondent no.1 Somnath Grah Nirman Sahakari Samiti Limited through Ramesh Chand Khandelwal. Municipality, Dausa was not a party to the contract and the Municipality, Dausa being a third party or the stranger to the suit, cannot be permitted to be impleaded as a party-defendant, especially in a suit for specific performance of the contract. He has cited the judgment of Kasturi V/s. Iyyamperumal & Others reported in AIR 2005 Supreme Court 2813 in support thereof.
5. Having reflected over the submissions made at the bar and carefully scanned the contents of the suit as also other material on record, it is noticed that the agreement to sale dated 8th June, 1992 is a document, on the basis of which the petitioner-plaintiff has filed a suit for specific performance of contract. This agreement to sale was entered into between the petitioner-plaintiff and the respondent no.1 Somnath Grah Nirman Sahakari Samiti Limited through Ramesh Chand Khandelwal.
6. The Hon'ble Apex Court in the case of Kasturi (supra) has unequivocally observed that the stranger or the third party cannot be impleaded as a party-defendant in the suit for specific performance of the contract. Learned trial court has rightly observed that the Municipality, Dausa was not a necessary party in the suit. It is now well settled that the necessary party is a party, without whose presence the suit cannot be adjudicated and the proper party is a party in whose absence the suit can be adjudicated, but the presence of the party may be required for expedition and convenience. Municipality, Dausa is not at all a party to the agreement to sale dated 8th June, 1992. When the Municipality, Dausa is not a party to the agreement, how is it said that the suit cannot be decided in his absence. Even if the Municipality, Dausa is not impleaded as a party, the suit for specific performance of the contract, which was entered into between the petitioner-plaintiff and the respondent-defendant no.1 can be adjudicated in the absence of the Municipality, Dausa, hence the impugned order rendered by the learned trial court is found to be perfectly just and proper and I am in unison with the finding arrived at by the learned trial court with regard to the fact that the Municipality, Dausa is not a necessary party in the suit. Thus, the impugned order warrants no intervention and the writ petition being devoid of any substance deserves to be dismissed.
7. For the reasons stated above, the writ petition fails and the same being bereft of any merits stands dismissed.
8. Consequent upon the dismissal of writ petition, the stay application, filed therewith, does not survive and that also stands dismissed.
(MAHESH BHAGWATI), J.
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