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1994 DIGILAW 547 (BOM)

Shamrao Rajeshwarrao Potdukhe v. Gurukul Gruha Nirman Bhadekaru Malki Sahakari Sanstha Maryadit, Chandrapur & others

1994-09-19

R.M.LODHA

body1994
LODHA R.M., J.:—This revision application under section 115 of the Code of Civil Procedure has been filed by the applicant Shamrao Rajeshwarrao Potdukhe against the order dated 16-3-1991 passed by the Joint Civil Judge, Senior Division, Chandrapur, in Special Civil Suit No. 7 of 1980, whereby the application filed by the present applicant under Order 1, Rule 10 of the Code of Civil Procedure for his addition as a party in Special Civil Suit No. 7 of 1980 has been rejected. 2. Undisputed facts are that non-applicant No. 1 Gurukul Gruha Nirman Bhadekaru Malki Sahakari Sanstha (hereinafter referred to as 'the plaintiff') has filed a suit for specific performance of agreement dated 4-3-1978 and 24-7-1978 alleged to have been executed by deceased Arjuna Vishwanath Umathe (the predecessor-in-title of non applicants Nos. 2 to 11) for sale of 2-50 acres of land bearing Kh. No. 57. situated at Mouza Wadgaon, district Chandrapur. 3. In the suit filed by the plaintiff for specific performance of contract, the present application Shamrao has moved an application for his impleadment in the said suit, on the ground that subsequently relating to the land in question an agreement has been executed by non-applicants Nos. 2 to 11 in his favour and, therefore, he is a necessary and proper party in the suit filed by the plaintiff. 4. The trial Court rejected the said application holding that the applicant Shamrao, who claimed himself to have the subsequent agreement to sell relating to this property in his favour, is stranger to the contract which is sought to be enforced by the plaintiff and, therefore, cannot be impleaded as party. 5. Shri Mardikar, the learned Counsel for the applicant, with all vehemence at his command, submitted that under section 40 of the Transfer of Property Act, the applicant has a right in the hand in question and therefore, he was a necessary party and ought to have been impleaded in the suit. 6. I am afraid, the contention raised by the learned Counsel for the applicant has no merit and deserves to be negatived. It is well settled that the suit for specific performance is always limited to the agreement of which specific performance is sought and the Court is required to examine and consider only those pleas that can either defeat and lead to its enforcement or seek in substituting the reliefs. It is well settled that the suit for specific performance is always limited to the agreement of which specific performance is sought and the Court is required to examine and consider only those pleas that can either defeat and lead to its enforcement or seek in substituting the reliefs. The cause of action for the suit for specific performance is denial of the executant of the agreement to carry out his obligations. The controversy, therefore, which is required to be gone into in the suit for specific performance with reference to a particular contract or contracts cannot be enlarged by permitting a stranger to the contract to be impleaded as a party in the suit. Admittedly the applicant Shamrao has nothing to do with the agreement which is sought to be enforced in the suit for specific performance of contract filed by the plaintiff. I am fortified in my view by the judgement of this Court in (E. Ajay Kumar v. Tulsabai and another)1, reported in 1973 Mh.L.J. 683. In the said judgment, this Court after considering large number of decisions came to the conclusion that if in a suit for specific performance of agreement of sale, a strange filed an application that he is interested in the property in respect of which an agreement of sale has been executed and that he was a necessary party to the suit and should be ordered to be shown as such, such stranger cannot be permitted to be added as a party because he was either a necessary nor proper party. 7. It would not be out of place to observe that Shri Mardikar has admitted that his client has already filed a suit for specific performance of the contract on the basis of the agreement in this suit. 8. Be that as it may, the order passed by the trial Court on 16-3-1991 impugned in the present revision application does not suffer from any error or jurisdiction and, therefore, cannot be interfered with in exercise of revisional jurisdiction under section 115 of the Code of Civil Procedure. The order passed by the trial Court is well-reasoned and in accordance with law. 9. Consequently, this revision application has no force and is accordingly dismissed. Application dismissed. -----