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2009 DIGILAW 176 (RAJ)

Moolchand Bothra v. Addl. District Judge

2009-01-20

NARAYAN ROY, RAGHUVENDRA S.RATHORE

body2009
JUDGMENT Hon'ble ROY, CJ.—Heard learned counsel for the parties. 2. The writ application filed by the appellant challenging order of the Court below allowing application under Order 1 Rule 10 of the Code of Civil Procedure filed on behalf of respondent No. 3, was dismissed after hearing counsel for the parties. 3. Mr. Maloo, learned counsel appearing on behalf of the appellant contended that in a suit for specific performance of the agreement, application under Order 1 Rule 10 CPC would not be maintainable and therefore, the Court below and the learned Single Judge of this Court erred in allowing application under Order 1 Rule 10 CPC. Learned counsel further submitted that since the suit for specific performance was in between the parties, who had agreed to sell the land in question, third person's interference would not be permissible as it would change the scope of the suit for specific performance of a contract. To buttress his argument, learned counsel relied upon a decision of the apex Court in case of Kasturi vs. Iyyamperumal & Ors., (2005) 6 SCC page 733. In the light of the judgment, learned counsel submitted that in a suit for specific performance of a contract for sale, the issue to be decided is the enforceability of the contract entered into in between the parties and no outside interference, therefore, would be permissible. 4. Mr. Alok Sharma, learned counsel appearing on behalf of contesting respondent No. 3 on the contrary submitted that the disputed property was already purchased by the respondent No. 3 by agreement dated 23.12.1995 and therefore, he had semblance of title and interest over the suit land and thus, he was necessary party and rightly therefore his application under Order 1 Rule 10 CPC was allowed. He further submitted that the agreement entered into in between the plaintiff and respondent No. 2 was dated 14/16.2.2004 which admittedly was a subsequent transaction and in this background, the Court below and the learned Single Judge of this Court were well within their jurisdiction to allow application under Order 1 Rule 10 CPC filed on behalf of respondent No. 3. In support of his contention, learned counsel relief upon a decision of the Apex Court in case of Sumtibai & Ors. vs. Paras Finance Co. and Ors. (2007) 10 SCC 82 . 5. We have carefully examined the materials ion record and the impugned order. In support of his contention, learned counsel relief upon a decision of the Apex Court in case of Sumtibai & Ors. vs. Paras Finance Co. and Ors. (2007) 10 SCC 82 . 5. We have carefully examined the materials ion record and the impugned order. It appears that the court below in view of the averments made in paras 6 and 8 of the plaint where there was reference about respondents No. 2 and 3 pertaining to an agreement for sale of the property coupled with the application filed on behalf of respondent No. 3 under Order 1 Rule 10 CPC, allowed the same as the respondent No. 3 had semblance of title and interest over the property in question and for just adjudication, it was held that respondent No. 3 would be the necessary party. 6. It is undisputed that some reference was made with regard to agreement in between the respondents No. 2 and 3 in paras 6 and 8 of the plaint and an application was filed for addition of party so far as respondent No. 3 was concerned. The Court below and the learned Single Judge of this Court, on appreciation of facts, therefore, were well within their jurisdiction to allow the application impleading respondent No. 3 as party-defendant for doing complete justice and for effective adjudication of the matter. In a case when some semblance of title or interest is shown by the parties, even in a suit for specific performance of a contract, it would be just and proper to allow such application for addition of party to avoid multiplicity of litigation. In this background, the learned Single Judge of this Court had not committed any jurisdictional error in affirming order passed by the Court below allowing application under Order 1 Rule 10 CPC. 7. In the case of Kasturi (supra), the apex Court observed and held:- "As discussed herein earlier, whether Respondents 1 and 4 to 11 were proper parties or not, the governing principle for deciding the question would be that the presence of Respondents 1 and 4 to 11 before the Court would be necessary to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit. As noted herein earlier, in a suit for specific performance of a contract for sale, the issue to be decided is the enforceability of the contract entered into between the appellant and Respondents 2 and 3 and whether contract was executed by the appellant and Respondents 2 and 3 for sale of the contracted property, whether the plaintiffs were ready and willing to perform their part of the contract and whether the appellant is entitled to a decree for specific performance of a contract for sale against Respondents 2 and 3. It is an admitted position that Respondents 1 and 4 to 11 did not seek their addition in the suit on the strength of the contract in respect of which the suit for specific performance of the contract for sale has been filed. Admittedly, they based their claim on independent title and possession of the contracted property. It is, therefore, obvious as noted herein earlier that in the event, Respondents 1 and 4 to 11 are added or impleaded in the suit, the scope of the suit for specific performance of the contract for sale shall be enlarged from the suit for specific performance to a suit for title and possession which is not permissible in law. In the case of Vijay Pratap vs. Sambhu Saran Sinha this Court had taken the same view which is being taken by us in this judgment as discussed above. This Court in that decision clearly held that to decide the right, title and interest in the suit property of the stranger to the contact is beyond the scope of the suit for specific performance of the contract and the same cannot be turned into a regular title suit. Therefore, in our view, a third party or a stranger to the contract cannot be added so as to convert a suit for one character into a suit of different character. As discussed above, in the event any decree is passed against Respondents 2 and 3 and in favour of the appellant for specific performance of the contract for sale in respect of the contracted property, the decree that would be passed in the said suit, obviously, cannot bind Respondents 1 and 4 to 11. As discussed above, in the event any decree is passed against Respondents 2 and 3 and in favour of the appellant for specific performance of the contract for sale in respect of the contracted property, the decree that would be passed in the said suit, obviously, cannot bind Respondents 1 and 4 to 11. It may also be observed that in the event, the appellant obtains a decree for specific performance of the contract property against Respondents 2 and 3, then, the Court shall direct execution of deed of sale in favour of the appellant in the event Respondents 2 and 3 refusing to execute the deed of sale and to obtain possession of the contracted property he has to put the decree in execution. As noted herein earlier, since Respondents 1 and 4 to 11 were not parties in the suit for specific performance of a contract for sale of the contracted property, a decree passed in such a suit shall not bind them and in that case, Respondents 1 and 4 to 11 would be at liberty either to obstruct execution in order to protect their possession by taking recourse to the relevant provisions of CPC, if they are available to them, or to file an independent suit for declaration of title and possession against the appellant or Respondent 3. On the other hand, if the decree is passed in favour of the appellant and sale deed is executed, the stranger to the contract being Respondents 1 and 4 to 11 have to be sued for taking possession if they are in possession of the decretal property." 8. On appreciation of the facts and the ratio laid down by the apex Court as referred to above, it appears that the plaintiff himself has referred about the agreement entered into in between respondents No. 2 and 3 and in view of such averments made particularly in paras 6 and 8 of the plaint, the respondent No. 3 was a necessary party besides the question that he has semblance of title and interest over the suit land by virtue of agreement as referred to above. The respondent No. 3 no doubt could have also filed a separate suit for specific performance of contract as per agreement entered into in between the parties, but when a suit was already brought subsequently for specific performance of a contract with regard to the same land and there was reference about this very agreement, it was proper for the court below to allow respondent No. 3 to intervene in the suit itself by impleading him as one of the defendants. 9. The Apex Court in case of Sumitibai (supra) noticing the judgment of the Court in Kasturi (supra) in an identical matter held:- "In view of the aforesaid decisions we are of the opinion that Kasturi Case is clearly distinguishable. In our opinion it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. In our opinion, if C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced." 10. The judgment relief upon by Mr. Maloo in the case of Kasturi (supra), in our view, has no application in the peculiar facts and circumstances of the case, inasmuch as, in that case, in the suit for specific performance of a contract, third party could not have been impleaded as he had no semblance of title or interest in the property in question, whereas in the case at hand, third party, who applied for his impleadment as party-defendant, had semblance of title and interest over the property inquestion by virtue of agreement dated 23.12.1995. 11. In the facts and circumstances of the case as referred to above, the decision relief upon by Mr. Alok Sharma in case of Sumtibai (supra) aptly applies. 12. For the reasons aforementioned and in view of the legal proposition as referred to above, in our view, the order impugned passed by the learned Single Judge of this Court cannot be faulted either on facts or on law. 13. Alok Sharma in case of Sumtibai (supra) aptly applies. 12. For the reasons aforementioned and in view of the legal proposition as referred to above, in our view, the order impugned passed by the learned Single Judge of this Court cannot be faulted either on facts or on law. 13. In the result, this appeal is dismissed.