Civil Revision NO.1616 OF 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CIVIL REVISION NO.1616 OF 2010 DATE OF DECISION: DECEMBER 14, 2010 Rajesh Goel .... Petitioners VERSUS Govind Ram and others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Pavan Malik, Advocate for the petitioner. Mr. Sanjiv Vij, Advocate for respondent Nos.3 to 7. **** L.N. MITTAL, J. (ORAL) Plaintiff-Rajesh Goel aggrieved by order dated 22.02.2010 Annexure P-2 passed by learned Civil Judge (Junior Division), Gurgaon, has filed the instant revision petition under Article 227 of the Constitution of India to challenge the said order. Facts of this case are very peculiar. Petitioner-plaintiff Rajesh Goel filed suit against respondent No.1-sole defendant Govind Ram Gupta. Respondent Nos.2 to 6 moved application Annexure P-1C for impleading them as party to the suit. Respondent No.2 (no deceased) was wife of respondent No.1-defendant, whereas respondent Nos.3 to 6 are daughters and sons of respondents No.1 and 2. Respondent No.7 who is also son of respondent Nos.1 and 2 was not the applicant in application Annexure P-1C. It was alleged in the said application by respondent Nos.2 to 6 that during pendency of the suit, respondent No.1-sole defendant had gone missing w.e.f. 25.11.2009 and his whereabouts were not known in spite of search. He was aged about 80 years. Civil Revision NO.1616 OF 2010 -2- In view thereof, respondent Nos. 2 to 6 sought to be impleaded as party to defend the suit. The application was opposed by the plaintiff-petitioner. Learned trial court vide impugned order Annexure P-2 allowed the said application by impleading not only respondent Nos.2 to 6 but also respondent No.7 as party to the suit. Feeling aggrieved, plaintiff has filed the instant revision petition. Before proceeding further, it may be mentioned that on 19.08.2010 learned counsel for respondent Nos. 3 to 7 stated that respondent No.2 had also since died and respondent Nos. 3 to 7 being his daughters and sons are her natural heirs. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioner vehemently contended that in suit for specific performance, only the contracting parties are necessary party to the suit and a third person or stranger to the agreement is neither necessary nor proper party to the suit. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in Kasturi Versus Iyyamperumal and others, AIR 2005 Supreme Court 2813(1) and judgment of Rajasthan High Court in Smt. Tej Kaur and others versus Jeet Singh and others, AIR 1998, Rajasthan 201. It was also contended that plaintiff-petitioner is not claiming any relief against respondent Nos.2 to 7 and, therefore, they cannot be impleaded as party. Reliance in support of this contention was placed on Abdul Gani Rather versus Fayaz Ahmad Khan and others, 2003 AIHC 3274 (judgment of Jammu and Kahsmir High Court). It was also argued that in a case of ownership founded on family settlement, third party seeking to be impleaded on the basis of Will executed by deceased owner cannot be Civil Revision NO.1616 OF 2010 -3- impleaded, as held by this Court in Shri Raj Kumar alias Rajinder Singh versus Smt. Bimla Kumar and another, AIR 1991 Punjab and Haryana 303. I have carefully considered the aforesaid contentions but the same are completely misconceived and misdirected and have no relevance to the issue involved in the instant revision petition. In the instant case, the defendant is said to have gone missing. Consequently, somebody has to represent the interest of the defendant in the suit. Respondent Nos. 2 to 7 being legal heirs of respondent No.1-defendant were, therefore, impleaded as party to the suit. On enquiry, as to who would represent the defendant in the suit if respondent Nos.2 to 7 are not impleaded, learned counsel for the petitioner stated that the defendant is represented by counsel who can continue to represent the defendant in the trial court. However, obviously the counsel without being instructed by the defendant or anybody on his behalf cannot defend the defendant in the trial court at different stages. The counsel has to be instructed for cross-examination of the plaintiff's witnesses. The counsel also has to be instructed while leading evidence on behalf of defendant. Evidence has to be led by the defendant and counsel cannot bring witnesses or documents to lead evidence without defendant being there to instruct him. Faced with this situation, counsel for the petitioner stated that respondent Nos.2 to 7 can without being party to the suit, instruct the counsel who is representing the defendant. The contention cannot be accepted because the counsel cannot take instructions from respondent Nos.2 to 7 unless the counsel represents them and unless respondent Nos.2 to 7 are impleaded as party to the suit. Without impleadment of respondent Nos.2 to 7 as party, counsel representing respondent No.1-defendant cannot take instructions from respondent Nos.2 to 7. Civil Revision NO.1616 OF 2010 -4- Learned counsel for the petitioner also contended that initially respondent No.7 Parkash Chand was recorded to be owner of the suit property in the records of Haryana Urban Development Authority (HUDA), but his father respondent No.1-defendant agreed to sell the same to the plaintiff. The property was also transferred in the name of defendant in the records of HUDA. It was contended by the counsel for the petitioner that if at all anybody is to be impleaded as party, it would be respondent No.7 only who was previous owner of the suit property. This contention is completely misconceived and devoid of substance. It is the case of the plaintiff that defendant as owner of the suit property agreed to sell it. Plaintiff did not even implead Parkash Chand respondent No.7 as party-defendant to the suit nor it is the case of the petitioner that respondent No.7 is presently owner of the suit property. On the contrary, it is positive case of the plaintiff that respondent No.1-defendant is owner of the suit property. Consequently, defendant-respondent No.1 can be represented not by respondent No.7 only but by all his legal heirs respondents No.2 to 7 (now respondent Nos.3 to 7) Learned counsel for respondent Nos.3 to 7 has cited Division Bench judgment of Patna High Court in case of Lala Gobind Prasad versus Lala Jagdip Sahay, 86 Indian Cases, 1925, page 358. This judgment is almost on identical facts. In that case also, the decree holder had gone missing. However, he could not be presumed to have died under Section 108 of the Evidence Act before lapse of period of seven years since the man went missing. Consequently, the problem arose as to who could represent the missing decree- holder. In these circumstances, it was held that son of the missing decree holder could represent him. In the instant case also, the problem is very peculiar. Respondent No.1-defendant has gone missing since 25.11.2009. He Civil Revision NO.1616 OF 2010 -5- could not be presumed to have died under Section 108 of the Evidence Act since period of seven years has not lapsed. However, defendant has to be represented by somebody. His interest has to be protected. Consequently, respondent Nos.2 to 7 were rightly ordered to be impleaded as party to the suit to represent the interest of respondent No.1-defendant who has gone missing. There is, therefore, no illegality or jurisdictional error in impugned order of the trial court. On the contrary, the said order has been rightly passed, necessitated by peculiar facts and circumstances of the instant case. Learned counsel for the petitioner contended that earlier application moved by respondent Nos. 2 to 6 for impleading them as legal representatives of respondent No.1-defendant was dismissed as not pressed and, therefore, subsequent application was not maintainable. The contention is misconceived because the earlier application was not pressed because respondent No.1-defendant was not presumed to be dead and, therefore, his legal representatives could not be impleaded. In the subsequent application, respondent Nos.2 to 6 sought to be impleaded as party to the suit, not as legal representatives of respondent No.1-defendant but in order to represent the interest of respondent No.1-defendant in the suit. Consequently, the second application is not barred, because the first application was for a different relief. For the reasons aforesaid, I find no merit in the instant revision petition, which is accordingly dismissed. (L. N. MITTAL) JUDGE December 14, 2010 'raj'