C.R. No. 4360 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 4360 of 2009 Date of Decision: September 16, 2009 Kamlesh Devi …..Petitioner Vs. Mehar Chand and another …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. Rao D.S. Nirban, Advocate for the petitioner. Mr.S.K.Yadav, Advocate for the respondents. -.- M.M.S. BEDI, J. (ORAL) Vide impugned order an application under Order 1 Rule 10 CPC filed by the petitioner in a suit filed by respondent No.1 against respondent No.2 for specific performance of an agreement dated December 10, 2002 stands dismissed. C.R. No. 4360 of 2009 [2] Counsel for the petitioner has contended that respondent No.2 is the husband whose whereabouts are not known for the last 7/8 years. He has been proceeded ex-parte in May, 2006. She being interested in the property being residence of the house is entitled to safeguard her interests by contesting the suit for specific performance filed by respondent No.1 against respondent No.2. Counsel for the respondent has supported the impugned order by contending that a daughter was born to Satpal on February 27, 2003 and a birth certificate has been issued by the Registrar, Deaths and Births registering the birth of a girl to the petitioner and respondent No.2 on February 27, 2003 as per registration made on April 6, 2003. Copy of the birth certificate has been brought to the notice of the Court. The trial Court while dismissing the application formed an opinion that application has been moved merely to delay in the proceedings and that no right has accrued to the petitioner to seek impleadment in the capacity as Legal Representative on the presumption of civil death of respondent No.2. Counsel for the petitioner has placed reliance on Gordhan Vs. Pawan, 2006 (1) Latest Judicial Reports 669, wherein an order passed by the trial Court permitting the minor children of a defendant to be impleaded as a party in a suit for specific performance when a father was not properly contesting the suit. He also placed reliance on Sumtibai and others Vs. Paras Finance Co. Mankanwar and others, 2007 (4) Latest Judicial Reports 502 to contend that when a third party shows some semblance of title or interest in property it can be impleaded as party to the suit. He also C.R. No. 4360 of 2009 [3] placed reliance on Kulwinder Kaur Vs. Raghbir Singh, 1998 (3) PLR 634, in which case the whereabouts of defendant executant of an alleged agreement of sale were not known for the last 7 years. The High Court had allowed revision petition against the order of trial Court dismissing the applications of Legal Representatives to be impleaded as party holding that in his absence wife and children are necessary parties. I have carefully gone through the facts and circumstances of the cases cited by counsel for the petitioner. So far as Sumtibai’s case (supra) is concerned, in the said case the defendant- seller in a suit for specific performance died leaving his LRs. The Hon’ble Supreme Court allowed impleadment of the LRs of defendant as a party in a suit for specific performance as he had died during the pendency of the suit. The LRs were permitted to file additional written statement to take up the pleas available to them. In that case the defendant had admittedly died, the LRs, in such circumstances were permitted to be impleaded as defendants. So far as Gordhan’s case (supra) is concerned, in the said case the defendant had got himself proceeded against ex-parte in collusion with the plaintiff and he had facilitated passing of an order restraining him to alienate the suit land for creating any charge over the same. The minors through their mother were thus permitted to be impleaded as party. In Kulwinder Kaur’s case (supra) it was an admitted fact that the defendant against whom a suit for specific performance was filed was actually not available and that his whereabouts were not known. The facts of the present case are absolutely different. The petitioner- applicant, on the one hand claims that her husband is not C.R. No. 4360 of 2009 [4] available for the last 7/8 years whereas the allegation against him is that he entered into an agreement of sale on December 10, 2002 and had also taken a loan of Rs.800/- from Nihal Singh on July 6, 2002. Though the said facts have been denied by counsel for the petitioner but at the same time, the petitioner has not been able to show as to how birth certificate showing the name of her husband therein reflecting them that a daughter was born to them on February 27, 2003. It appears that the impleadment had been sought for on the presumption that defendant No.2 has died whereas circumstances do not warrant that he can be presumed to be dead. It is also not the case of the petitioner that the suit has been field by respondent No.1 in collusion with defendant No.2 to defeat the rights of petitioner in any manner. Had petitioner been able to establish prima facie the circumstances warranting the presumed death of respondent No.2, she could have been permitted to participate in the proceedings to protect her rights of alleged possession in the property. No ground is made out for interference in the impugned order. Dismissed. However, it is made clear that dismissal of this revision petition will not prejudice the legal rights of the petitioner to safeguard her interests in the property. As she being not a party to the case of specific performance, will not be bound by the decree and would be entitled to raise objections in case any decree for possession is sought to be executed against her. C.R. No. 4360 of 2009 [5] September 16, 2009 (M.M.S.BEDI) sanjay JUDGE