IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 144 of 2008 Date of Decision: 30.5.2008 ________________________________________________________________ Madan Lal … Petitioner Versus Dile Ram & ors. … Respondents. ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? No For the Petitioner (s) : Mr. Karan Singh Kanwar, Advocate. For the Respondents : ________________________________________________________________ Deepak Gupta, J. (Oral ). This petition is directed against the order dated 7.5.2008 passed by the learned Civil Judge (Sr. Div), Lauhal Spiti at Kullu, whereby he has rejected the application filed by the present petitioner for being impleaded as defendant in Civil Suit No. 8 of 2008. Briefly stated the relevant facts of the case are that Gaurav Arora and Meenakshi Rana, hereinafter referred to as the plaintiffs, filed Civil Suit No.8 of 2008 against Shri Dile Ram, hereinafter referred to as the defendant. The case of the plaintiffs was that the defendant was carrying on the business of manufacturing mineral water under the name and style of M/s Manali Food and Beverage, - 2 - Bashing PO, Babeli, Tehsil and District, Kullu, HP, and had constructed a factory over 1-10 bighas of land. The plaintiffs claim that since the defendant was unable to carry out the business properly, he had introduced plaintiff No.1 as one of the partners of the said business vide partnership deed dated 30.6.2004 and in terms of the partnership deed, defendant No.1 and defendant No.2 are having 50% share each in the said business. Thereafter some dispute arose between the parties and the plaintiff No.1 Gaurav Arora initiated legal proceedings in the High Court of H.P. and according to the plaintiffs the High Court passed an order that he is the owner of 50% assets of the partnership business. It is further the case of the plaintiffs that defendant was unable to pay off the dues of the H.P. State Financial Corporation as well as to the UCO Bank and therefore, on 10.1.2008 the defendant No.1 entered into an agreement with plaintiff No.2 to sell the entire property to her for a sum of Rs.55 lacs. The plaintiffs alleged that they had taken over share of the property and by means of the suit prayed that defendant be restrained from interfering in the possession of the plaintiffs in the said property or in running of the business. - 3 - The defendant contested the suit. He denied the allegations made in the plaint. He also stated that he had already filed an application being OMP No.16 of 2008 for the purpose of withdrawing the compromise application. The present petitioner filed an application for being impleaded as party in the said suit. The case set up by the petitioner is that the defendant No.1 Dile Ram had agreed to sell the property which is the subject matter of the suit to him vide agreement dated 30.5.2007. According to the petitioner, he had agreed to purchase the said property for a sum of Rs.43,0000/- and had paid a sum of Rs.3 lacs as advance to Dile Ram and had been put in possession of the said property. The learned trial Court came to the conclusion that some other remedy may be available to the petitioner but he cannot claim any right in the present suit. The learned trial Court also held as follows:- “ I have no hesitation to conclude that he is not in possession of the land in question.” Prima facie, it does appear that the petitioner is not in possession of the land because it is difficult to believe that a party who was in partnership with some other person would hand-over the entire possession of the - 4 - property which according to the petitioner is worth Rs.43 lacs, only on a payment of negligible percentage of the sale consideration. I am of the considered opinion that the learned trial Court should have avoided making a sweeping statement which has been quoted above. This is only a prima facie view and obviously the question as to who is actually in possession of the property have to be decided on the basis of the evidence when the main proceedings are decided. As far as the application under Order 1 rule 10 CPC is concerned, the plaintiffs claim a right against defendant Dile Ram on the basis of an agreement dated 30.5.2007 which according to him is prior to the agreement entered into between the plaintiffs and the defendant. Even if this fact is accepted to be correct, then also the remedy available to the plaintiffs is to seek specific performance of his agreement. He cannot be permitted to intermeddle in the suit, inter se, the plaintiffs and defendant where he has no right. He may file his own separate suit to establish his right and if so advised, may also pray that both the civil suits may be heard together but he cannot be made a party to a suit between the plaintiffs and the defendant. In that suit, the sole question - 5 - which arises is whether the plaintiff No.1 was a partner in the firm and whether defendant had agreed to sell the land to plaintiff No.2. The question whether defendant had agreed to sell this land to the present petitioner is not a question which arises in the suit nor is this a question which is necessary to be answered in that suit. The petitioner, therefore, has no right to be impleaded in the present suit. The plaintiffs are dominus litus of the suit cannot be forced to implead any other party especially a party who has no concern with the proceedings as a party to the suit. Therefore, I find no error in the order of the learned trial Court. The petition is accordingly rejected. May 30, 2008. ( Deepak Gupta ),J. s.