Rajasthan High Court - Jaipur
Under Article 226 & 227 Of The ... vs . Satya Narayan, Whereby The ... on 5 May, 2014
Author: R.S. Chauhan
Bench: R.S. Chauhan
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. Civil Writ Petition No. 558/2014 Nasir v. Rais Khan & Anr. UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA AGAINST THE ORDER DATED 18.11.2013 PASSED BY THE ADDL. DISTRICT JUDGE NO.11, JAIPUR CITY, JAIPUR IN CIVIL SUIT NO. 512/2012 TITLED RAIS KHAN VS. SATYA NARAYAN, WHEREBY THE APPLICATION FILED BY PETITIONER UNDER ORDER 1 RULE 10 CPC HAS BEEN DISMISSED. Date of Judgment: 5th May, 2014 HON'BLE MR. JUSTICE R.S. CHAUHAN Mr. Paker Farooq, for the petitioner.
The petitioner is aggrieved by the order dated 18.11.2013 passed by Addl. District Judge No.11, Jaipur City, Jaipur, whereby the learned Judge has dismissed the petitioner's application under Order 1 Rule 10 CPC and refused to implead the petitioner as party respondent to the suit.
2. The brief facts of the case are that the petitioner, Nasir, and the respondent No.1 plaintiff, Rais Khan, were good friends. During their friendship, they decided to buy a plot namely Plot No. 125 situated in Balaiyon Ki Basti, Nahari Ka Naka, Jaipur, which belonged to the respondent No.2, Satya Narayan. Therefore, the respondent No.1, Rais Khan, and the respondent No.2, Satya Narayan, entered into an agreement on 19.3.2005 with regard to the said plot. The total consideration of the said plot was Rs. 20,40,000/-. At the time of execution of agreement to sale, Rais Khan paid Rs. 2 lakhs to Satya Narayan. It was agreed that the rest of the amount of Rs.18,40,000/- would be paid within three months and the sale-deed would be executed. According to the petitioner, out of Rs.2 lakhs paid by Rais Khan, the petitioner and his brother paid Rs.1,51,000/-; Rais Khan added Rs.49,000/- to the said amount and, thus paid Rs.2 lakhs to Satya Narayan. Rais Khan and Satya Narain further agreed that the sale-deed would be registered by Satya Narain either in favour of Rais Khan, or in favour of any other person indicated by Rais Khan.
3. By another agreement to sale dated 23.3.2005, entered between Rais Khan and the petitioner's brother, Mohd. Aslam, it was agreed that half of the property on the northern side would be given to the petitioner for an amount of Rs.11,21,000/-. Moreover, according to the petitioner, it was further agreed that half of the property purchased by Rais Khan from Satya Narayan would be given to the petitioner and his brother. Since Satya Narayan was agreeable for getting the sale deed executed, the petitioner was asked to bring stamp papers of Rs. 40,000/- from the Collector (Stamps). On 2.7.2005, the sale-deed was duly drafted on the stamp papers in favour of the petitioner and Mohd. Aslam. However, later on, Satya Narayan refused to execute the sale-deed. Consequently, the stamp papers were returned to Collector (Stamps). The Collector (Stamps) deducted Rs. 4,100/- and reimbursed Rs. 35,900/- through cheque.
4. During the course of trial, Rais Khan filed an application wherein he brought all these facts to the notice of the trial court and prayed that stamp papers returned to the Collector(Stamps) should be summoned by the court. This application was allowed by the learned trial court by order dated 8.8.2007 and the stamp papers were duly summoned.
5. Moreover, according to the petitioner, after filing of the suit for specific performance, Rais Khan changed his mind and decided not to part with the half of the property in favour of the petitioner and his brother, despite the fact that he had entered into an agreement to sale with them. Therefore, the petitioner filed an application under Order 1 Rule 10 CPC for being impleaded as party in the suit filed by Rais Khan against Satya Narayan. However, by order dated 18.11.2013, the learned Judge has dismissed the said application. Hence, this petition before this Court.
6. The learned counsel for the petitioner has narrated the facts mentioned above and has contended that issue of understanding was between Rais Khan and the petitioner and petitioner's brother, that half of the property would be sold to them by Rais Khan. Since it is the petitioner and his brother who had paid Rs.1,51,000/- to Rais Khan for making the initial payment to Satya Narayan, therefore, they are interested parties in the outcome of the suit. Secondly, these facts were also narrated by Rais Khan in the application filed by him for summoning the stamp papers, which were returned to the Collector(Stamps), Jaipur. However, while passing the impugned order, the learned Judge has ignored these facts and has erroneously held that the petitioner is neither a necessary party, nor a proper party. Relying on the case of Terai Tea Co. Pvt. Ltd. v. Kumkum Mittal and Others [AIR 1994 Calcutta 191], the learned counsel has contended that the power of the court to add a party to a proceeding cannot be dependent solely on the question whether the party has an interest in the suit property or not? The question is whether the right of the person may be affected if he is not added as a party. Such right, however will include necessarily enforcible legal right. Thus, according to him, the learned Judge has erred in dismissing the application under Order 1 Rule 10 CPC. Hence, the impugned order deserves to be interfered with.
7. Heard the learned counsel for the petitioner and perused the impugned order.
8. A bare perusal of the facts narrated above makes it abundantly clear that Rais Khan had entered into an agreement to sale with Satya Narayan with the understanding that within three months the sale-deed would be executed and the remaining amount would be paid to Satya Narayan by Rais Khan. Since Satya Narayan did not execute the sale-deed, Rais Khan filed a suit for specific performance against him. In the agreement to sale dated 9.3.2005, there is not an iota of assertion that most of the consideration amount was paid by the petitioner and his brother. The agreement merely records that Rais Khan has paid a consideration of Rs. 2 lakhs, as an amount out of total Rs.20,40,000/- and the remaining amount of Rs.18,40,000/- shall be paid by him within three months and the sale-deed shall be registered within three months. Thus, the privity of contract is strictly between Rais Khan and Satya Narayan.
9. Although, there may have been an agreement to sale entered in between Rais Khan and the present petitioner and his brother, but non-implementation of those agreement to sale-deed by Rais Khan would give rise to separate and distinct cause of action. Obviously, those agreement to sale would come into force as and when Rais Khan becomes the owner of the property in dispute. After all, agreement to sale entered between Rais Khan and Satya Narayan do not transfer the title of the property to Rais Khan. Therefore, if the agreement to sale entered between Rais Khan and the petitioner and his brother are being breached by Rais Khan, the petitioner clearly has a separate cause of action against him.
10. Since the dispute is strictly between Rais Khan and Satya Narayan in the present suit, the petitioner is neither a proper, nor a necessary party. The principle laid down by the Hon'ble Calcutta High Court cannot be doubted. However, the facts of the case of Terai Tea Co. Pvt. Ltd. (supra) are different from the facts of the present case. Thus, the said case does not come to the rescue of the petitioner.
11. Even if Rais Khan has submitted an application bringing the facts mentioned above, at best the petitioner would be his best witness in the case in order to prove the assertion made by him. But by no stretch of imagination, the petitioner can be said to be necessary, or property party in the suit.
12. Therefore, this Court does not find any illegality or perversity in the impugned order.
13. For the reasons stated above, the writ petition being devoid of any merit is, hereby, dismissed. Stay application also stands dismissed.
(R.S. CHAUHAN),J.
Mak/-
63All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Anil Makawana P.A.