1. The present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the applicant-third party to quash and set aside the impugned order dated 25/01/2011 passed by the learned 5th Additional Senior Civil Judge, Rajkot below Exh. 13 in Regular Civil Suit No. 16/2010 by which the learned trial Court has dismissed/rejected the application submitted by the applicant permitting her to be joined as party defendant in the aforesaid Regular Civil Suit No. 16/2010.
2. Respondent no. 4-original plaintiff instituted Regular Civil Suit No. 16/2010 in the Court of learned Principal Senior Civil Judge, Rajkot against respondent no. 1 to 3-original defendants for specific performance of agreement to sell dated 16/12/2003. It is to be noted that the said suit has been instituted on 28/01/2010 and prior thereto there is already a registered sale deed in favour of the applicant dated 22/01/2010 i.e. prior to filing of the suit by respondent no. 4. Respondent no. 4 has purchased the disputed property in question on the basis of the agreement to sell in his favour dated 05/04/2004 and, therefore, the applicant submitted the application, Exh. 13 in Regular Civil Suit No. 16/2010 permitting her to to be joined as party defendant in the aforesaid suit by submitting that she is necessary and proper party as any relief that may be granted in favour of respondent no. 4-original plaintiff in the aforesaid suit is directly likely to affect the applicant. The learned trial Court dismissed the said application by impugned order dated 25/01/2011 by observing that the applicant is neither necessary nor proper party in the suit filed by respondent no. 4-original plaintiff, which has been filed for specific performance of agreement to sell dated 16/12/2003, which has been filed against respondents nos. 1 to 3-original defendants nos. 1 to 3. Being aggrieved and dissatisfied with the impugned order passed by the learned 5th Additional Senior Civil Judge, Rajkot dated 25/01/2011 below Exh. 13 in Regular Civil Suit No. 16/2010, the applicant-third party has preferred the present Civil Revision Application under Section 115 of the Code of Civil Procedure.
3. Shri B.D. Datta, learned advocate appearing on behalf of the applicant has vehemently submitted that the learned trial Court has committed an error and/or illegality in not allowing the application, Exh. 13 by observing that the applicant is neither necessary nor proper party. It is submitted that considering the fact that prior to the institution of the suit the applicant had already purchased the suit property in question by registered sale deed and any relief, which may be granted in favour of respondent no. 4-original plaintiff, the applicant is likely to be affected, the learned trial Court ought to have allowed the said application by permitting the applicant to be joined as party defendant in the aforesaid suit. It is submitted that the learned trial Court has not properly appreciated the decision of the Hon'ble Supreme Court in the case of Kasturi Vs. Iyyamperumal & Ors reported in AIR 2005 SCC 2813. By making the above submission and relying upon the above decision, it is requested to allow the present Civil Revision Application.
4. The present Civil Revision Application has been opposed by Shri N.D. Nanavati, learned Senior advocate appearing with Shri N.D. Buch, learned advocate appearing on behalf of respondent no. 4-original plaintiff. It is submitted that as the agreement to sell in favour of the applicant was after the agreement to sell executed in favour of respondent no. 4-
original plaintiff, the learned trial Court has not committed any error and/or illegality in rejecting the application, Exh. 13 and not permitting the applicant to be joined as party defendant in the suit. It is submitted that the learned trial Court has rightly relied upon the decision of the Hon'ble Supreme Court in the case of Kasturi (Supra) while rejecting the application and, therefore, it is requested to dismiss the present Civil Revision Application.
5. Shri Rupareliya, learned advocate appearing on behalf of respondents nos. 1 to 3-original defendants has supported the applicant.
6. Heard the learned advocates appearing on behalf of the respective parties at length. It is not in dispute that respondent no. 4-original plaintiff has instituted the suit on 28/01/2010 against respondents nos. 1 to 3-original defendants nos. 1 to 3 for specific performance of agreement to sell dated 16/12/2003. It is also not in dispute that prior to filing of the suit the applicant has already purchased the disputed suit property in question vide registered sale deed dated 22/01/2010 and the same was also intimated to respondent no. 4-original plaintiff by giving reply to the public notice, which was published on 15/01/2010 and, therefore, as such respondent no. 4-original plaintiff was required to challenge the sale deed executed in favour of the applicant, if so advised. Considering the aforesaid facts and circumstances of the case, when prior to institution of the suit by respondent no. 4-original plaintiff there is already a sale deed in favour of the applicant and the suit has been filed for specific performance of agreement to sell with respect to the very property, which has been purchased by the applicant, not only the applicant can be said to be the necessary or proper party, it can be said that she is likely to be affected by any order that may be passed by the learned trial Court in favour of respondent no. 4-original plaintiff, if any. Under the circumstances, the learned trial Court has materially erred in dismissing the application, Exh.
13. This Court has considered the decision of the Hon'ble Supreme Court in the case of Kasturi (Supra), which has been relied upon by the learned trial Court, however, considering the facts of the case on hand and the facts of the case of Kasturi (Supra), the learned trial Court has materially erred in relying upon the said judgment as the same would not be applicable to the facts of the present case. Under the circumstances, the impugned order passed by the learned trial Court cannot be sustained and the same deserves to be quashed and set aside.
7. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application succeeds and the impugned order dated 25/01/2011 passed by the learned 5th Additional Senior Civil Judge, Rajkot below Exh. 13 in Regular Civil Suit No. 16/2010 is hereby quashed and set aside and consequently, the application is allowed and the applicant is permitted to be joined as party defendant no. 4 in Regular Civil Suit No. 16/2010. Rule is made absolute to the aforesaid extent. No cost.
(M.R. SHAH, J.) siji