Court No. - 44
Case :- WRIT - C No. - 13091 of 2009 Petitioner :- Kaushal Kishore Respondent :- Sujan Singh And Others Counsel for Petitioner :- Ajay Kumar Singh,Ashish Kumar Singh Counsel for Respondent :- Jagriti Singh
Hon'ble Pankaj Bhatia,J.
A perusal of the Office report dated 17.12.2019 shows that the respondent no. 1 has filed Vakalatnama. The notice on the other respondents is held to be sufficient.
The present petition has been filed challenging the order dated 4.2.2009 passed by Additional District Judge, Court No. 9, Varanasi, whereby the application seeking impleadment was rejected by the court below.
The brief facts giving rise to the present writ petition are that respondent no. 1 filed a suit for specific performance. The said suit was decreed on 23.2.1998. The defendants in the said suit filed an Appeal No. 205 of 1999, challenging the judgment and decree dated 23.2.1998. The petitioner claims that during the pendency of the appeal, the plaintiff-respondent no. 1 executed a registered agreement for sale dated 10.3.2004 in respect of the part of the properties flow from the decree dated 23.2.1998 being Arazi No. 21/4 area 0.50 decimals.
On the strength of the said agreement, the petitioner got executed a sale deed by the judgment debtor in his favour and on the basis of the said sale deed moved an application seeking impleadment in the pending appeal, which was filed challenging the judgment and decree dated 23.2.1998. The Appellate Court has passed an order rejecting the said application mainly on the ground that a perusal of the sale deed does not disclose that the property in question is a part of the property, which was subject matter of the suit and the doctrine of lis pendens applies to the sale in question.
The submission of the counsel for the petitioner is that the order dated 4.2.2009 is erroneous on two grounds. Firstly that the judgment debtors who were also the appellant had themselves executed the sale deed in favour of the petitioner and thus the application for impleadment should have been allowed and secondly that even if the Court had come to a conclusion that the petitioners were not a necessary party, the same should have been allowed holding that the petitioners were a proper party.
A perusal of the order dated 4.2.2009 makes it clear that the order has been passed in sheer ignorance of the provision of Order 1 Rule 10 read with Order 22 Rule 10 CPC, as the petitioner had acquired the rights in the property in question, which was subject matter of appeal and, therefore, in the interest of justice should have been allowed to be impleaded. Consequently, the order dated 4.2.2009 is quashed. The impleadment application filed by the petitioner is allowed. The appeal shall now proceed in accordance with law after hearing the parties in question and be decided expeditiously as possible.
The writ petition is disposed off in terms of the said order.
Order Date :- 18.12.2019 SR