Ramesh Chandra Pattnaik vs Puspendra Kumari and Others

L. Mohapatra, J.—This writ application is directed against the order dated 19.4.2001 passed by the learned First Additional Civil Judge (Senior Division), Cuttack in T.S. No. 221 of 1079 allowing the application of Smt. Labangalata Nayak-opposite party No. 10 to be added as a party to the suit as well as the order passed by the revisional Court dismissing the revision.

The Plaintiff is the Petitioner in this writ application. The Plaintiff-Petitioner has filed the suit for specific performance of contract and for a direction to the Defendant-opposite party No. 1 to execute the sale deed in respect of the suit land and house standing thereon on the ground that the same belong to Defendant No. 1 and there was an agreement for sale. The contesting Defendant No.1 has also filed a suit vide T.S. No. 287 of 1978 for eviction of the Plaintiff-Petitioner. While the matter stood thus and both the cases were pending, Defendant No. 1 entered into an agreement with the intervener namely, Labangalata Nayak to steel the land after disposal of the suit. It was agreed between them that Defendant No. 1 shall execute the sale deed in respect of the suit property in favour of Labangalata Nayak after disposal of the suit and it was further agreed that from the date of agreement, the intervenor shall bear all the expenses of litigation till disposal of the suit. On the basis of the above agreement, the intervenor Labangalata Nayak filed an application before the trial Court to be impleaded as a party under Order 1, Rule 10 of the CPC The said petition was resisted by the Plaintiff-Petitioner on the ground that the intervenor is neither a necessary party nor a proper party to the suit and the suit can be effectively decided in absence of the intervenor. It was contended by the learned Counsel appearing for the Plaintiff-Petitioner that the said intervenor is a lis pendence purchaser and is bound by the result of the suit and it is not necessary to make her a party to the suit. The trial Court allowed the application the ground that in view of the agreement executed between Defendant No. 1 and the intervenor a right has accrued in favour of the intervenor and if she is not added as a party to the suit, it will be open for her to file a suit for specific performance of contract and the same may lead to multiplicity of proceeding. The aforesaid order was challenged by the Plaintiff-Petitioner in revision. The revisional Court not only dismissed the revision on merit but also on the ground of maintainability.

The learned Counsel appearing for the Plaintiff-Petitioner before this Court challenges both the orders solely on the ground that the Petitioner had entered into an agreement with Defendant-opposite party No. 1 for sale of the suit property in favour of the Plaintiff-Petitioner and that the Plaintiff-Petitioner is in occupation of the suit premises. Since the Defendant No. 1 did not perform his part of the duty under the agreement, the suit had been filed for specific performance of contract. It was further contended by Shri Patnaik, the learned Counsel appearing for the Petitioner that the admitted case of the intervenor is that the agreement between her and Defendant No. 1 was executed on 15.11.1984 when the suit filed by the Plaintiff-Petitioner was pending and therefore she being a lis pendence purchaser, is bound by the decree that may be passed in the suit and therefore is not a necessary party.

The learned Counsel appearing for Labangalata-opposite party No. 10 on the other hand submitted that if the intervenor is not made a party to the suit, it will be open for her to file a separate suit for specific performance of contract and in that event the same may lead to multiplicity of proceeding and in order to avoid such situation, the trial Court was justified in allowing the application.

As claimed during pendency of the suit out of which this writ application arises, Defendant No. 1 entered into an agreement with the intervenor-opposite party No. 10 for sale of the suit premises after disposal of the suit. The other condition in the agreement is that the intervenor shall bear all the litigation expenses till disposal of the suit. In view of such agreement, it cannot be said that no right has accrued in favour of the intervenor. Admittedly Defendant No. 1 has also filed another suit for eviction of the Plaintiff-Petitioner from the suit premises and the suit is also pending consideration. There cannot be any dispute that if the intervenor is not allowed to be added as a party in the suit, it will be open for her to file a suit for specific performance of contract. In the event, the intervenor application is not allowed, the suit filed by the intervenor for specific performance of contract against the Defendant No. 1 may definitely lead to multiplicity of proceeding. Apart from above, the averments made in the intervention petition are also required to be taken note of. In the agreement executed between Defendant No. 1 and the intervenor the intervenor is required to bear all the litigation expenses till disposal of the suit. Under the circumstances, the averments made in the intervention petition that the Defendant No. 1 is no more taking interest in the suit may have some substance. I am therefore of the view that if the application of the intervenor-opposite party No. 10 is not allowed, it may lead to multiplicity of proceeding.

I therefore do not find any merit in the writ application and the same is dismissed.