PUSHPENDRA SINGH BHATI,J. - (1.) The petitioner has preferred this writ petition under Article 226 and 227 of the Constitution claiming the following reliefs: "a) By an appropriate writ, order or direction, the writ petition filed by the petitioner may kindly be allowed. b) by an appropriate writ, order or direction impugned order dated 04.05.2016 (Annex-7) passed by the learned District Judge, Chittorgarh in Civil Original Suit No.76/2014 titled as "Madan Lal v. Smt. Ghisi Bai " may kindly be quashed and set aside. c) By an appropriate writ, order or direction both the application under Order 1, Rule 10 and section 151 CPC (Annex.4) filed by the petitioner/plaintiff may kindly be allowed as prayed for. d) Any other appropriate order, which this Hon'ble Court deems just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. e) Cost of the writ petition may please be awarded in favour of the petitioner."
(2.) The petitioner-plaintiff has filed a suit for specific performance of a contract dated 19.05.2014 against the respondent-defendant. The petitioner has moved an application under Order 1, Rule 10 CPC to implead the subsequent purchaser/respondent No.2, who claimed to have purchased the land in question from the defendant through through a registered sale deed dated 16.07.2014. However, the learned court below has rejected the said application on the ground that the suit was for specific performance of contract, and for cancellation of sale deed.
(3.) Learned counsel for the petitioner has relied upon the judgment of this Hon'ble Court in Ganesh Gadri v. Chhoga Gadri reported in (2012) 1 DNJ 371, which reads as under: "1. In this writ petition filed under Article 227 of the Constitution of India, order dated 29.09.2011 is under challenge by which the application filed under Order 1, Rule 10, read with Section 151, C.P.C. filed by the petitioner-plaintiff was rejected. 2. Learned counsel for the petitioner submits that a suit for specific performance of contract and permanent injunction was filed by the petitioner against defendant-respondent No.1, in which, it is pleaded that an agreement to sale of land described in the plaint was agreed to be sold by the defendant for consideration of Rs. 6,60,000/- per bigha and defendant received Rs. 3,00,000/- in advance at the time of execution of the agreement and, thereafter, further received Rs. 2,98,000/- on 11.01.2010 to pay off the mortgage loan taken on the land and handed over possession of the land on 11.01.2010 itself. 3. Learned counsel for the petitioner submits that a legal notice was given which is published on 17.02.2010 with regard to land and another legal notice was sent to the respondent No.1 on 02.03.2010 to perform the agreement but the sale was executed. Thereafter, a suit was filed in the Court for specific performance of the contract agreement. 4. In the suit filed by the plaintiff-petitioner, the respondent-defendant filed his written-statement and replied that since the plaintiff failed to fulfill the terms and conditions of the agreement to sale, therefore, the land has now been sold to one Smt. Saroj Chhabra on 26.02.2010 by way of registered sale-deed. After filing written-statement the plaintiff-petitioner came to know about the fact that land in question has been sold to Smt. Saroj, therefore, he immediately moved application under Order 1, Rule 10, C.P.C. to implead Smt. Saroj Chhabra as party in the suit. The trial Court however rejected the application filed by the petitioner holding that the subsequent purchaser is a necessary party in the suit for specific performance. 5. Learned counsel for the petitioner submits that the order impugned is totally illegal because the defendant sold the property in between the period from the date of sending the legal notice and publishing the notice in the news paper and date of filing suit and this fact was in the knowledge of the petitioner as it came to his knowledge only after filing written-statement by the defendant-respondent in the suit. Therefore, the reason for rejection of the petitioner's application is illegal. More so, only to non-suit the petitioner-plaintiff the respondent-defendant sold the property after sending notice for performance of the contract-agreement, therefore, obviously the purchaser of the said property is a necessary part in the suit. But, the trial Court rejected the application illegally and in a very arbitrary manner and as such while quashing the order impugned, the application filed by the petitioner under Order 1, Rule 10, C.P.C. may be allowed and the trial Court may be directed to proceed in the matter after impleading Smt. Saroj as party in the suit. 6. Per contra, learned counsel appearing on behalf of the respondent vehemently argued that suit was filed against the defendant-respondent who had already sold the property before filing the suit, therefore, the suit itself was maintainable against the defendant-respondent but the petitioner-plaintiff filed the suit contrary to law, therefore, without challenging the sale-deed executed in favour of buyer Smt. Saroj Chhabra the petitioner filed application under Order 1, Rule 10, C.P.C. and as such the trial Court has rightly rejected the application filed under Order 1, Rule 10(2), C.P.C. Hence, the order impugned does require any interference and this writ petition may be dismissed. 7. Admittedly, the respondent-defendant sold the property after receiving the notice from the petitioner-plaintiff and this fact is in dispute, therefore, if there was no knowledge with the petitioner-plaintiff prior to filing the suit and the written-statement, then, it was possible for him to implead Smt. Saroj Chhabra or to challenge the sale-deed. In this view of the matter, the trial Court ought to have considered this aspect of the matter; but, the trial Court rejected the application only on the ground that the suit cannot be maintained against the subsequent purchaser. In my opinion, the order impugned suffers from the material illegality. 8. Therefore, this writ petition is allowed. Order impugned dated 29.09.2011 is quashed and set aside and application filed under Order 1, Rule 10(2), C.P.C. by the petitioner-plaintiff for impleading Smt. Saroj Chhabra whom the property in question was sold by the defendant is hereby allowed and trial Court is directed to proceed in the suit after impleading Smt. Saroj Chhabra as party in the suit.";