Manzoor Ali vs Nasir Ahmed and Others

Alok Sharma, J.—This writ petition comes up before this Court as a connected matter pursuant to the order dated 22.5.2013 passed in SB Civil Misc. Appeal No. 420/2013. The challenge in this petition is to the order dated 24.4.2008 passed by learned Addl. District Judge, Sambhar Lake, District Jaipur. Thereby the plaintiff petitioner''s (hereinafter ''the plaintiff'') application under order 1 Rule 10 and Order 6 Rule 17 read with section 151 CPC to implead one Islamuddin as a party in the plaintiff''s suit for specific performance against the respondents defendants Nasir Ahmed and Munna @ Rahis Ahmed (hereinafter ''the defendant'') has been dismissed.

Mr. N.K. Maloo, Sr. Counsel appearing for the plaintiff submitted that Islamuddin as a subsequent purchaser, in terms of section 19 of the Specific Relief Act as also the judgment of the Hon''ble Supreme Court in the case of Thomson Press (India) Ltd. Vs. Nanak Builders and Investors P. Ltd. and Others, aside of reason of public policy of the Courts to avoid multiplicity of litigation ought to have been impleaded in the suit for specific performance. Yet the trial court has failed to exercise its jurisdiction under Order 6 Rule 17 read with section 151 CPC and arbitrarily failed to implead Islamuddin as a party in the plaintiff''s underlying suit for specific performance. It was submitted that without Islamuddin''s impleadment, a decree in the plaintiff''s suit about which the plaintiff is optimistic would be in executable.

Per-contra, Mr. Ajeet Bhandari, Counsel appearing for the defendants submits that in the event the amendment sought under Order 6 Rule 17 read with section 151 CPC in the plaintiff''s suit for specific performance inter-alia impugning the judgment and decree dated 14.5.2007 in favour of Islamuddin as also seeking impleadment of Islamuddin under Order 1 Rule 10 CPC were to be allowed, it would lead to mis-joinder of causes of action and change the very nature of the suit for specific performance also to one of declaration of the purported invalidity of the decree dated 14.5.2007 passed by the Additional District & Sessions Judge, Sambhar Lake, District Jaipur in a suit laid by Islamuddin against the defendants on a separate and distinct cause of action. He submitted that the amendment sought under Order 6 Rule 17 CPC very specifically sought declaration of the decree dated 14.5.2007 passed by the Additional District & Sessions Judge, Sambhar Lake, District Jaipur as invalid, void and non-est and further that it was not operative against the plaintiff. Counsel submitted that in the event the sought amendment as to the plaint and the impleadment of Islamuddin were to be allowed it would have led to multifariousness in the proceedings to the grave prejudice of the defendants.

I have heard the counsel for the parties and perused the impugned order dated 24.4.2008.

Impleadment under Order 1 Rule 10(2) CPC is fundamentally a matter of the discretion of the trial court no doubt judiciously exercised. and for that purpose it has to first come to a conclusion that the impleadment sought was essential for the complete and effective adjudication of the suit pending before it. The trial court has also to see whether in the event the amendment sought were to be allowed it would alter the very nature of the pending suit and/or introduce for adjudication extraneous matters beyond the substance of the suit before it. In the instant case the trial court noted that Islamuddin had come into ownership of the suit property before it under a prior judgment and decree dated 14.5.2007 passed by the Additional District & Sessions Judge, Sambhar Lake, District Jaipur. In the trial court''s discretion and estimation the suit before it could be adjudicated completely and effectively as laid between the plaintiff and the defendants and impleadment of Islamuddin apart from not being necessary was not desirable in the facts obtaining. The Hon''ble Supreme Court in the case of Anil Kumar Singh Vs. Shivnath Mishra alias Gadasa Guru, while dealing with a similar situation where a third party beneficiary of an independent decree was sought to be impleaded by resort to Order 1 Rule 10 CPC has held that

since the respondent is not a party to the agreement of sale, it cannot be said that without his presence the dispute as to the specific performance cannot be determined. Therefore, he is not a necessary party.

In my considered opinion the case before the this Court is not a case of a "subsequent purchaser simplicitor" who is sought to be impleaded in a suit for specific performance but a case where a third party which came into ownership of the suit property on the basis of an independent judgment and decree albeit consent of a competent Court was sought to be impleaded. That could not have been done for the various reasons recorded above. The trial court rightly dismissed the plaintiff''s application under Order 1 Rule 10 read with Order 6 Rule 17 CPC. I find no force in this petition and same is hereby dismissed.