- (1.) Aggrieved by the order dated 02.12.2008, this writ petition has been filed.
(2.) It is stated that an application under Order 1 Rule 10 of the Civil Procedure Code (for short the CPC) was filed by the petitioners for their impleadment in a pending suit filed by Shri Shankar Lal. The suit for specific performance was filed against Shri Bharat Singh, who is none else but petitioners' brother. The application was filed after showing their share in the property in dispute being ancestral property. The property was originally belonging to Late Shri Karan Singh and accordingly all the brothers are in possession of their portion, however, Shri Bharat Singh alone sold the property. In view of aforesaid, the application so moved by the petitioners should have been allowed more so when the petitioners' suit to claim their 1/4th share in the property has been decreed by the revenue court, pending this writ petition, though at the time of passing the impugned order, matter was pending before the court and has been decided now by the order dated 25.05.2009. A copy thereof was produced before me during the course of arguments to strengthen the argument on behalf of the petitioners. To support his contentions, learned counsel for petitioners placed reliance on the judgment of the Hon'ble Supreme Court in the case of Sumtibai & Ors. v. Paras Finance Company & Ors., 2007 10 SCC 82 so as the recent judgment in the case of Mumbai International Airport Pvt Ltd. v. Regency Convention Centre & Hotels Pvt. Ltd. & Ors., 2010 AIR(SC) 3109.
(3.) On the other hand, learned counsel for respondents, supporting the impugned order, submits that application moved by the petitioners under Order 1 Rule 10 of the CPC has rightly been dismissed. The petitioners are not party to the agreement to sale, thus they cannot seek their impleadment as party respondents in the suit. This is more so when the plaintiffs/respondents purchased the suit property after verification of the revenue record. The land in dispute is recorded in the name of Bharat Singh. Defendant Bharat Singh's name was entered in the revenue record after death of his father Karan Singh. The petitioners did not challenge mutation entry immediately and it is only to frustrate the suit for specific performance that application under Order 1 Rule 10 of the CPC has been filed. While the suit was pending, the petitioners lately moved to the revenue court to seek their share in the property. The perusal of the order now passed by the revenue court shows collusion between defendant Bharat Singh and the petitioners as the matter was decided there without contest, though suit was barred by limitation. This is nothing but an order obtained by the petitioners Fraudulently. In view of aforesaid, the petitioners have rightly denied their impleadment in the pending suit. Reference of the judgment of the Hon'ble Apex Court in the case of Kasturi v. Lyyamperumal & Ors., 2005 6 SCC 733, has been given so as the judgment in the case of Anil Kumar Singh v. Shivnath Mishra @ Gadasa Guru, 1995 3 SCC 147. Aforesaid judgments are in regard to the scope of an application under Order 1 Rule 10 of the CPC. Learned counsel for respondents has further placed reliance on the judgment of the Hon'ble Apex Court in the case of S.R. Chengal Varaya Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs. & Ors., 1994 1 SCC 1. Therein, issue of fraud in obtaining order has been explained.;