Judgment:
Rajesh Bindal, J.
1. This order will dispose of two petitions bearing Nos. 5721 and 6324 of 2008, as both arise out of same order, passed by the learned court below.
2. The facts have been taken from CR No. 5721 of 2008.
3. Briefly, the facts are that the petitioner-vendor allegedly entered into an agreement to sell the suit land with respondent No. 1-vendee on 20.11.2006. The last date for execution of the sale deed was fixed as 19.12.2006. The petitioner-vendor having failed to execute the sale deed on or before the date fixed, suit for possession by way of specific performance was filed by respondent No. 1-vendee against the petitioner-vendor on 17.11.2007, in which notice of motion was issued for 3.12.2007. It was during the pendency of the suit that respondent No. 1-vendee along with respondent No. 2, his daughter-in-law, filed application under Order 1 Rule 10 and Order 6 Rule 17 CPC for impleading respondent No. 2 as plaintiff No. 2 in the suit and also amendment of the plaint for incorporating certain subsequent developments, whereby after filing of the suit, the petitioner vendor approached respondent No. 1-vendee for settlement of the dispute and in fact the same was settled on 9.1.2008 at revised rates, in terms of which the petitioner-vendor was to get the sale deed registered on 10.1.2008 in favour of respondent No. 2, daughter-in-law of respondent No. 1-vendee. Though the documents were got prepared, the petitioner-vendor allegedly fled from the spot after getting the balance consideration. It was considering the aforesaid facts that respondent No. 1-vendee filed application for impleading respondent No. 2 as plaintiff No. 2 in the suit and also for amendment of the plaint for incorporating subsequent developments. The learned court below, vide impugned order, substituted respondent No. 2 as plaintiff in place of respondent No. 1-vendee and further allowed the amendment of the plaint. The petitioner-defendant is only aggrieved against the order of the learned court below permitting substitution of respondent No. 2 as plaintiff in the suit in place of respondent No. 1-vendee. In the second petition, the petitioner-vendee therein is aggrieved against deletion of his name as the plaintiff. According to him, his prayer was for addition of Maya Devi, his daughter-in-law, as plaintiff No. 2 and not for substitution of her name in his place.
4. Learned Counsel for the petitioner-vendor submitted that it is a suit for possession by way of specific performance filed by respondent No. 1-vendee against the petitioner-vendor seeking specific performance of an alleged agreement to sell dated 20.11.2006, in which without there being any valid reason, respondent No. 2, his daughter-in-law, has been directed to be substituted in his place. In fact, respondent No. 2 is totally stranger to the agreement to sell, which are subject matter of suit. Though the petitioner-vendor is denying even execution of the agreement to sell, even if the same is there, still respondent No. 2 has nothing to do with that agreement. As per the contentions made in the application for being impleaded as plaintiff in the suit, the respondents submitted that during the pendency of the suit after receipt of notice, the petitioner-vendor approached respondent No. 1-vendee for settlement on 9.1.2008 and the terms for sale were revised and the sale deed was to be executed on 10.1.2008 on payment of balance consideration. On the next date, even the documents were got typed but the petitioner-vendor after receiving the balance money fled from the spot. The submission is that all these developments, if any, had taken place after the filing of the suit by respondent No. 1-vendee. There is no privity of contract of the petitioner-vendor and respondent No. 2 as far as the suit originally filed is concerned. Even if the subsequent agreement dated 9.1.2008, as is sought to be claimed by the respondents, is in existence, still the same is an independent cause of action with alleged revised terms, for which any beneficiary therein cannot possibly be impleaded as plaintiff in the present case, as the vendor and the vendee therein still remain the same. In the present suit, if respondent No. 1-vendee is not able to prove the agreement to sell allegedly signed by the petitioner-vendor, the suit will fail. The second alleged agreement will be required to be proved by the vendee therein independently. The additions in the present suit will amount to misjoinder of causes of action. Relying upon the judgment of Hon'ble the Supreme Court in Kasturi v. Iyyamperumal and Ors. : J.T. 2005(4) S.C. 565, it was submitted that respondent No. 2, by no stretch of imagination, can be said to be an interested party who could be impleaded as plaintiff in the suit.
5. On the other hand, learned Counsel for the respondents submitted that the prayer made by them in the application filed was for addition of respondent No. 2 as plaintiff No. 2 in the suit. The learned court below without appreciating the prayer made by them had substituted respondent No. 2 in place of respondent No. 1 as plaintiff in the suit. The order deserves to be set aside and in fact, considering the subsequent developments, respondent No. 2 should have been impleaded as plaintiff No. 2. In response to the contentions raised by learned Counsel for the petitioner-vendor regarding implement of respondent No. 2 as plaintiff No. 2 in the suit, it was submitted that she is a necessary party as in the subsequent settlement arrived at between the parties, the sale deed was to be executed in her favour as the vendee was at liberty to get the sale deed executed in favour of any person. No prejudice as such was going to be caused to the petitioner-vendor in case she was also impleaded as plaintiff in the suit, as the plaintiff is dominus litus.
6. After hearing learned Counsel for the parties and perusing the paper book, I find merit in the submissions made by learned Counsel for the petitioner vendor to the extent that respondent No. 2, daughter-in-law of respondent No. 1-vendee, is not a necessary party in the original lis between respondent No. 1-vendee and the petitioner-vendor. Admittedly, the suit was originally filed for possession by way of specific performance of agreement to sell dated 20.11.2006 allegedly executed by the petitioner-vendor in favour of respondent No. 1-vendee and on failure to execute the sale deed on or before the date fixed, the suit was filed by respondent No. 1-vendee against the petitioner-vendor on 17.11.2007. Respondent No. 2 was only sought to be impleaded as party claiming that after receipt of notice, the petitioner-vendor came forward to settle the dispute on 9.1.2008 and in terms thereof at revised rates, the petitioner-vendor agreed to sell the land to respondent No. 1-vendee, who at his option was entitled to get the sale deed executed in favour of his daughter-in-law and in fact a sale deed had been got typed. In view of this development during the pendency of the suit, respondent No. 2 cannot be said to be a necessary party, as from the contentions of the parties or a perusal of the application filed by respondent No. 2 for being impleaded as plaintiff No. 2 and also for amendment of the plaint, it is no where evident that respondent No. 2, who has been substituted in place of plaintiff No. 1 in the suit, had anything to do either with first agreement or second agreement. All what is stated is that the dispute was settled between the petitioner-vendor and respondent No. 1-vendee and in terms thereof, respondent No. 1-vendee wanted to get the sale deed registered in favour of respondent No. 2, his daughter-in-law.
7. Considering the aforesaid facts, it can safely be opined that respondent No. 2 is a stranger to the suit initially filed by respondent No. 1-vendee against the petitioner-vendor on the basis of agreement to sell dated 20.11.2006 and accordingly, she is not a necessary party in the suit. The impugned order, passed by the learned court below, to the effect it allows substitution of respondent No. 2 in place of respondent No. 1 as plaintiff in the suit is set aside and it is directed that respondent No. 1 shall only continue to be plaintiff in the suit.
8. The revision petitions are disposed of in the manner indicated above.