ANIL GHAI Vs. SAGAR SINGH DUA

JUDGEMENT

(1.) Present petition under Article 227 of the Constitution of India for setting aside order dated 6.8.2015, passed by learned Civil Judge (Senior Division), Chandigarh, whereby the Court below decided preliminary issue, which was framed on 26.5.2015 that N.K. Bansal is not a necessary party but a proper party and his impleadment as defendant No.3 is as per law and thereafter, fixed the case for evidence of proforma defendant.

(2.) Facts relevant for the purpose of decision of the present petition that plaintiff/respondent No.1 had filed suit for specific performance against petitioner as well as respondent No.2 alleging that he had executed agreement of sale dated 22.1.2007 with respondent No.2-Sohan Lal Arora for sale of House No. 161, Sector 8A, Chandigarh owned and possessed by the petitioner. In the aforesaid suit, plaintiff had also arrayed respondent No.3 as defendant No.3 on the ground that he was an attesting witness to the agreement. More so, Estate Officer, Chandigarh was also impleaded as defendant No.4, though no relief was sought against them.

(3.) Learned counsel for the petitioner submitted that the entire plaint reveals that as no relief was being claimed against defendant No.3 & 4, they were not proper and necessary parties and petitioner had been contesting the suit and also cancelled agreement dated 21.8.2006 on 10.5.2007 and earnest money had already been returned by way of bank draft. On 9.5.2008, defendant No.3 was proceeded against ex parte. Issues were framed on 11.5.2009 and despite availing 14 effective adjournments, plaintiff could not complete the evidence and his evidence was closed by Court order on 20.3.2013. Plaintiff wanted to start de novo trial and for that purpose, respondent No.3 moved an application dated 11.5.2009 for setting aside the ex parte order dated 9.5.2008. The said application was at the instance of respondent No.1-plaintiff. Plaintiff consented to the said application moved by respondent No.3 and ex parte proceedings were set aside.