HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 527 of 2012 (M/S) Smt. Sumitra Devi and others. … Petitioners. Versus Ujjawal Gagneja. … Respondent. Mr. Umesh K. Pahwah, holding brief of Mr. Vijay Bhatt, Advocate for the petitioners. Mr. Lokendra Singh, Advocate for respondent. Dated: May 15, 2012: Hon’ble V.K. Bist, J. By way of instant petition, the petitioners have challenged the order dated 29.02.2012 passed by Civil Judge (Sr. Div.), Rudrapur, District Udham Singh Nagar in Civil Suit No. 7 of 2011 whereby application of the petitioners bearing paper no. 73-C moved under Order VI Rule 17 and Order I Rule 10 of the Code of Civil Procedure seeking impleadment as well as for amendment has been rejected. 2. The order impugned has been assailed on the ground that the learned trial Court in his impugned order has mentioned that in his application, the plaintiff did not mention in his application that when she came to know about the sale deed alleged to have been executed on 15.01.2011. Learned counsel for the petitioners submitted that the trial Court erred in rejecting the application by ignoring the factual aspect that the land in question was sold to 2-3 persons (proposed respondent nos. 2, 3 & 4) by the defendant/respondent without making actual payment of sale consideration. The trial Court also did not consider the fact that the defendant/ respondent was in 2 hurry, and in fact, the land in question is further transferred resulting multiplicity of legal proceedings, therefore, in order to avoid such mal practice, the application of the plaintiff/petitioners should have been allowed. In support of his contention, learned counsel for the petitioners referred paragraph-8 of the judgment of Hon’ble the Apex Court in Mumbai International Airport Pvt. Ltd. vs. Regency Convention Centre & Hotels Pvt. Ltd. & Ors., reported in AIR 2010 Supreme Court 3109 and submitted that the persons, who have purchased the land in question are not only necessary party but also a proper party. Relevant portion of the judgment cited by learned counsel for the petitioners is reproduced hereunder:- “……. A ‘necessary party’ is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a ‘necessary party’ is not impleaded, the suit itself is liable to be dismissed. A ‘proper party’ is a party who, though not a necessary party, is a person whose presence would enable the Court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in faour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the Court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.” 3. Mr. Lokendra Singh, learned counsel for the respondent, on the other hand, submitted that Order VI Rule 17 C.P.C. is clear which provides that after the trial has commenced, no application for amendment shall be 3 allowed, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before commencement of trial. He submitted that in the case in hand, the alleged sale deeds are prior to filing of the suit and after trail has begun, the application of the plaintiff/petitioners, seeking amendment, has rightly been rejected. He also referred Sub-Rule 2 of Rule 10 of Order I of the Code of Civil Procedure which provides that the Court may add at any stage of the proceedings, after getting itself satisfied that presence of said party before the Court is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. He submitted that in the present case, the dispute is in between the plaintiffs and defendant and mere question involve is that whether for non payment of complete consideration, the alleged sale deeds are liable to be cancelled. He also submitted that powers under Article 227 of the Constitution of India be exercised sparingly and this is not the case where such powers should be exercised in writ petition, hence the writ petition deserves to be dismissed. In support of his contention, learned counsel for the respondent relied upon paragraph-49 of the judgment of Hon’ble Apex Court in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil, reported in (2010) 8 Supreme court Cases 329. 4. I have heard Mr. Umesh K. Pahwa, Advocate for the petitioners, Mr. Lokendra Singh, Advocate for the respondent and perused the record. 5. It is not disputed that the land in question was sold to the defendant/respondent by the petitioners on a sale 4 consideration of ` 47 lacs. One cheque amounting to ` 9,50,000/- was bounced twice and the same was not paid due to insufficient fund in the account. Inspite of repeated requests of the petitioners, the same was not paid to the petitioners, hence entire sale consideration was not paid, therefore suit for cancellation of sale deed was instituted on 07.02.2011 in which temporary injunction was also granted. It is also not disputed that some portion of the land in question was sold by the respondent to 2-3 purchasers. Thus, portion of the land in question was sold to three purchasers by the defendant/respondent without being paid full sale consideration. Considering, this aspect of the matter and also considering the contention of learned counsel for the petitioners that said three purchasers may sell the land in question further to other persons, I think that application filed by the petitioners seeking impleadment of three persons should have been allowed. By doing so, the said purchasers will be prevented from selling the land further and the said purchasers shall also be bound by the judgment passed by the trial Court. Therefore, the said purchasers should be impleaded for proper adjudication of the matter. I also find it appropriate that amendment in the plaint as desired in the amendment application should have also been allowed. It is always open for such purchasers to contest the case alongwith the defendant/respondent. 6. In view of above discussion, the writ petition is allowed. Impugned order dated 29.02.2012 passed by Civil Judge (Sr. Div.), Rudrapur is set-aside. Simultaneously, application of the petitioners bearing paper no. 73-C moved under Order VI Rule 17 and Order I Rule 10 of the Code of Civil Procedure seeking 5 impleadment as well as for amendment is hereby allowed. Necessary amendment be incorporated in the record in accordance with law. 7. Stay vacation application (CLMA No. 3407/12) also stands disposed of. (V.K. Bist, J.) 15.05.2012 NCM: