Research › Search › Judgment

Patna High Court · body

2008 DIGILAW 730 (PAT)

Ramanand Gupta v. Bankey Lal

2008-05-22

S.N.HUSSAIN

body2008
Judgment 1. This civil revision has been filed by the intervener-petitioner challenging order dated 10.5.2001 by which learned Subordinate Judge, 1, Barh (Patna) rejected his petition for being added as a party to Title Suit No. 02 of 1999. 2. The aforesaid suit was filed by plaintiff-opposite party no. 1 against defendants-Opposite Party 2nd Set for specific performance of contract for sale dated 24.1.1996 executed by Late Pashupati Nath Sah, the father of defendants, in favour of plaintiff, with respect to the suit property. The aforesaid suit was contested by the defendants-opposite party 2nd set claiming the said agreement for sale to. be forged and fabricated, created only for the purpose of defeating Title Eviction Suit No. 06 of 1998 which was filed by the petitioner for eviction of plaintiff-opposite party no. 1 from the suit premises and hence, the suit was fit to be dismissed. 3. On 11.10.1999 the petitioner filed an intervention petition in the title suit under the provision of Order I Rule 10 of the Code of Civil Procedure for impleading him as party to the suit claiming that he was the owner of the suit premises and his title was decided in a decree dated 19.5.1998 passed in Title Suit No. 76 of 1997, whereafter he filed Eviction Suit No. 06 of 1998 for eviction of opposite party no. 1, who was his tenant in the suit premises and that only to defeat the said eviction suit, opposite party no. 1 had filed Title Suit No. 02 of 1999 against opposite party 2nd Set, although neither they or their father, who is alleged to have executed the agreement for sale, had any title over the suit property, nor they had any right to execute any agreement for sale with respect to the said property, nor even the father of opposite party 2nd Set had, in fact, executed any such agreement, in favour of opposite party no. 1. 4. The plaintiff-opposite party no. 1 contested the said petition of the intervener in the court below and filed a rejoinder praying to reject the same on various grounds. 1. 4. The plaintiff-opposite party no. 1 contested the said petition of the intervener in the court below and filed a rejoinder praying to reject the same on various grounds. The learned court below considering the entire matter in detail rejected the intervention petition of the petitioner by its impugned order dated 10.512001 holding that the case laws relied upon by the intervener-petitioner were not applicable to the facts and circumstances of the case and the intervener, being stranger to the contract, is neither a necessary party, nor a proper party and thus, is not entitled to join as a party to the suit. 5. Order 1 Rule 10(2) of the Code of Civil Procedure specifically provides that the name of any person which ought to have been joined as a party to the suit concerned or whose presence before the court is necessary for effective and complete adjudication of the questions involved in the suit, may be added as a party to the suit by the court. Furthermore, Section 19 of the Specific Relief Act, 1963 clearly provides that specific performance of a contract may be enforced only against either party to the contract or any person claiming under them. Thus, it is quite apparent that only those persons who come in the above categories prescribed in law are necessary parties and can be impleaded in a suit for specific performance of contract. 6. The said law is also well settled as a three Judges Bench of the Hon ble Apex Court in case of Kasturi V/s. lyyamperumal and Ors., 2005 6 SCC 733 , specifically held that in a suit for specific performance of contract for sale, the lis between the plaintiff and the defendant shall only be gone into and it is not open to the court to decide whether the defendant had acquired title and possession over the contracted property as that would not be germane for decision in the suit for specific performance of contract for sale, that is to say, that in a suit for specific performance of contract for sale, the controversy raised by the plaintiff against the defendant can only be adjudicated upon and in such a lis the court cannot decide the question of title and possession of the defendants relating to the contracted property. Merely in order to find out who has the title or possession over the contracted property, a third party or a stranger to the contract, cannot be added in a suit for specific performance of the contract for sale nor the court should allow adjudication of collateral matters so as to convert a suit for specific performance of contract for sale into a complicated suit for title as per the claim of the intervener. 7. The impleadment of such a person is naturally bound to lead to a complicated litigation, totally outside the scope of the suit. It has been specifically held in another decision of the Hon ble Apex Court in case of Vijay Pratap V/s. Sambhu Saran Sinha, 1996 3 SCC 53 that to decide the right, title and interest in the suit property of the stanger to the contract is beyond the scope of the suit for specific performance of contract, which cannot be converted into a regular title suit. Hence, a stranger to the contract cannot be impleaded as a party to the suit for converting a suit for specific performance of contract into a suit for title. 8. Two tests are prescribed by various case laws, including the aforesaid decision of the Hon ble Apex Court, which have to be satisfied while considering the prayer of a person, who is seeking addition in a pending suit for specific performance of contract. The first of those tests is that there must be a right to the same relief against party claiming to be a necessary party, relating to the same subject matter involved in the proceeding for specific performance of contract for sale and the second test is that it would not be possible for the court to pass an effective decree in a suit or specific performance of contract in the absence of such a party. If the aforesaid two tests are applied to the facts and circumstances of the instant case, it would be quite apparent that the cause of action raised by the petitioner was only with regard to his title as he was not a party to the agreement for sale. If the aforesaid two tests are applied to the facts and circumstances of the instant case, it would be quite apparent that the cause of action raised by the petitioner was only with regard to his title as he was not a party to the agreement for sale. In the said chcumstances, it was not open to the court to join other cause of action in the instant suit for specific performance of contract for sale, specially the lower court was satisfied that effective decree in the suit can be passed in absence of the intervener. 9. In the aforementioned decision of the Hon ble Supreme Court in case of Kasturi (supra) it was also held that only the heirs or legal representatives of a party to a contract can become necessary parties for the suit for specific performance of that contract as they step into the shoes of their predecessor in interest after his death or transfer by their predecessor on the basis of inheritance or transfer as the case may be. The right of transferee or an heir to the party to the contract is bound to be affected by the said suit as a contract constitutes rights and liabilities of the parties to the contract. But a person who claims adversely to the claim of the defendant cannot be said to be necessary party nor he can be allowed to intervene in the suit for specific performance of contract. Furthermore, since a decree in a suit for specific performance of contract does not at all affect the right, title and interest of a stranger to such a suit, it would not bind the intervener-petitioner, who would be at liberty to take recourse to the relevant provision of law for redressal of his grievances if legally permissible. 10. It may be mentioned here that learned counsel for the intervener-petitioner has relied upon a decision of two Judges bench of the Hon ble Apex Court in case of Sumtibai & Ors. V/s. Paras Finance Co. Regd. Partnership Firm Beawer (Raj), 2008 1 PLJR 78, in which a stranger to the agreement for contract was added as party to the suit for specific performance of contract. V/s. Paras Finance Co. Regd. Partnership Firm Beawer (Raj), 2008 1 PLJR 78, in which a stranger to the agreement for contract was added as party to the suit for specific performance of contract. However, from perusal of the said decision it is quite apparent that in that case the intervener was none else than the legal representatives of the defendant, who according to the plaintiff, was the executant of the agreement for sale. Hence, as per this decision only those persons can be allowed to intervene in a suit for specific performance of contract, who had stepped into the shoes of the defendant as his legal representatives as they cannot be said to be stranger to the claims of the respective parties. Considering both the aforesaid decisions of the Hon ble Apex Court, it is quite apparent that the Hon ble Apex Court in case of Sumtibai & Ors. (supra) had affirmed its earlier decision in case of Kasturi (supra) and also reiterated that apart from the legal representatives of parties to the suit for specific performance of contract no one else can be impleaded as party to the suit. 11. In the instant case, the intervenerpetitioner does not claim to be an heir or a legal representative of any party to the aforesaid suit, rather he is claiming on the basis of his alleged independent title and hence he is complete stranger to the agreement in question and has got a completely different cause of action. A third party, who is stranger to the agreement for sale, has no right to be impleaded in a suit for specific performance of contract merely with a view to decide the question of title of any party over the suit property or even to avoid multiplicity of suit and proceedings. Furthermore, the learned court below was also satisfied that intervenerpetitioner was not required for a just and proper adjudication of the suit. Moreover, the claim of intervener-petitioner cannot be allowed also according to the provisions of law specially the provision of Order 1 Rule 10 of the Code and the provision of Section 19 of the Specific Relief Act, 1963 which deals with the question of impleadment of party against whom relief is sought in the suit for specific performance of contract. 12. 12. In the light of the aforesaid propositions of law, facts and circumstances, this court does not find any illegality or jurisdictional error in the impugned order of the learned court below. Accordingly, this civil revision is dismissed.