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2011 DIGILAW 4077 (MAD)

U. Sumathy v. Santhi

2011-09-22

K.VENKATARAMAN

body2011
Judgment :- 1. The petitioner, aggrieved over the order of the learned Additional Judge, Puducherry at Karaikkal, dated 1.9.2010 in impleading her as a party to the suit in O.S.No.55 of 2007 on an application filed by the first respondent herein in a suit against the second respondent, has come up with the present civil revision petition. 2. The first respondent herein has filed the said suit against the second respondent for specific performance of an agreement of sale said to have been entered into between them. In the said suit, the first respondent has filed an application in I.A.No.78 of 2008 to implead the petitioner as a party. In the affidavit in support of the application, it has been set out that subsequent to the filing of the suit, the second respondent deliberately sold the property to the petitioner with ulterior motive and in order to defeat her claim. Hence, the petitioner should be made as a party to the suit to avoid multiplicity of suits in future. The said application was allowed by the said Court holding that though the schedule of property in the suit as well as the property of the proposed party do not have almost the same boundaries, the proposed lay out filed by the second respondent reveals that the second respondent has prepared lay out with one proposed road running from North to South dividing the road extent into two parts. But the sale deed Ex.R.1 of the petitioner has got a sketch on the back of the deed and the perusal of the said sketch reveals that the second respondent has not divided the plots as he proposed at the earlier point of time as per the proposed lay out and subsequently, has removed the proposed road and sold the property in favour of the petitioner. Therefore, the lay out filed by the second respondent himself is entirely different from the sketch enclosed along with Ex.R.1 and that does not tally with the boundaries as well as with the description. Therefore, the learned trial Judge felt that after impleading the proposed party as a party to the suit and after appreciation of evidence in trial, a final decision can be arrived at. Thus, the petitioner, according to the learned trial Judge, is a necessary party to settle the dispute and without her, the suit cannot be tried in a full-fledged manner. Thus, the petitioner, according to the learned trial Judge, is a necessary party to settle the dispute and without her, the suit cannot be tried in a full-fledged manner. Aggrieved over the said finding, the present civil revision has been filed. 3. Learned counsel appearing for the petitioner contended that the petitioner is not a proper or necessary in the suit that has been filed by the first respondent against the second respondent for specific performance of an agreement of sale entered into between them. To support his case, he relied on the decisions reported in (2005) 6 Supreme Court Cases 733 – Kasturi v. Iyyamperumal and others, 2009 (2) CTC 697 – Leelavathi v. Sri Venkateswara Finance and(2010) 7 Supreme Court Cases 417 : AIR 2010 SUPREME COURT 3109 – Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and others. 4. On the other hand, learned counsel appearing for the first respondent contended that in view of the claim made by the petitioner over the suit property and also in view of the fact that the second respondent has sold the property deliberately to the petitioner in order to deprive her right, the petitioner is not only a proper party but also a necessary party. To support his contention, he has relied on the same decision that has been cited by the learned counsel appearing for the petitioner viz., (2010) 7 Supreme Court Cases 417 : AIR 2010 SUPREME COURT 3109 – Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and others. 5. I have considered the submissions made by the learned counsel appearing for the petitioner and the learned counsel appearing for the first respondent. 6. The claim of the first respondent in the suit was that the second respondent has agreed to sell the suit property to her on 27.8.2007 and also executed a sale agreement in her favour and received a sum of Rs.2,00,000/- as advance. Though the agreement stipulated that the time for completion of the contract was three months, the second respondent was delaying to receive the balance sale consideration and to execute the sale deed in her favour. Hence, she has come up with the suit for specific performance of the agreement of sale after receiving the balance sale consideration. Alternatively, she has pleaded for return of the advance amount with interest. Hence, she has come up with the suit for specific performance of the agreement of sale after receiving the balance sale consideration. Alternatively, she has pleaded for return of the advance amount with interest. Pending suit, she has taken out an application in I.A.No.78 of 2009 for impleading the petitioner as the second defendant in the suit alleging that the second respondent herein has deliberately sold the suit property to her on 24.10.2007 with ulterior motive. 7. In the said application, the second respondent herein has filed a counter affidavit stating that even though the first respondent has entered into an agreement of sale with him, she has not paid the balance sale consideration. The cheques issued by her were returned as unpaid due to insufficient funds. In the meanwhile, the second respondent decided to sell the remaining property to the third party. On 24.10.2007, he has sold the remaining property to the petitioner. Thus, the petitioner / proposed party is in no way connected with the suit. The petitioner has also filed a counter affidavit in tune with the counter affidavit filed by the second respondent herein. The learned trial Judge after considering the rival submissions found that even though the Advocate Commissioner who has been so appointed, has deposed that the suit property and the property purchased by the petitioner do not refer to the same place, he has further stated that he could not locate both the properties. Learned trial Judge has also held that though the schedule of property in the suit as well as the property of the proposed party do not have almost the same boundaries, the proposed lay out filed by the second respondent reveals that the second respondent has prepared to lay out with one proposed road running from North to South dividing the road extent into two parts. But the sale deed Ex.R.1 of the petitioner has got a sketch at the back and the perusal of the said sketch reveals that the second respondent has not divided the plots as he proposed at the earlier point of time as per the proposed lay out and subsequently, has removed the proposed road and sold the property in favour of the petitioner. Therefore, the lay out filed by the second respondent himself is entirely different from the sketch enclosed along with Ex.R.1 and that does not tally in boundaries as well as in the description. Therefore, the learned trial Judge felt that after impleading the proposed party as a party to the suit and after appreciation of evidence in trial, a final decision can be arrived at. Thus, the petitioner, according to the learned trial Judge, is a proper party to settle the dispute and without her, the suit cannot be tried in a full-fledged manner. 8. In the backdrop of the matter, it has to be seen whether the petitioner is a necessary or a proper party. In the decision reported in (2005) 6 Supreme Court Cases 733, which has been relied on by the learned counsel appearing for the petitioner, it has been clearly set out that in a suit for specific performance of a contract, only the parties to the contract or parties claiming under them or a person who had purchased the contracted property from the vendor with or without notice of the contract are necessary parties. However, the person who claims independent title and possession adversely to the title of vendor is not a necessary party since an effective decree can be passed in his absence and no relief can be claimed against such party. In the case on hand, the petitioner is alleged to have purchased the property from the second respondent. Though she claims that the property purchased by her is different from the property for which an agreement of sale was entered intro between the first and second respondent, as stated above, a doubt has been entertained regarding the same. Hence, I am of the considered view that the said judgment may not directly apply to the case of the petitioner. 9. Yet another decision that has been relied on by the learned counsel appearing for the petitioner is reported in 2009 (2) CTC 697 . That is the case where the wife of the vendor had obtained exparte decree against her husband for maintenance and charge over his immovable property. When a suit for specific performance has been filed by the third party purchaser against her husband, she has moved an application to implead herself as a party. That is the case where the wife of the vendor had obtained exparte decree against her husband for maintenance and charge over his immovable property. When a suit for specific performance has been filed by the third party purchaser against her husband, she has moved an application to implead herself as a party. In such circumstances, this Court has held that she may not be a proper or necessary party. The said judgment, in my considered view, has not considered the facts of the present case, which is entirely on different footing. Thus, the said judgment also will not come to the rescue of the petitioner. 10. In the judgment reported in 2010 (3) CTC 480 , which was relied on by the learned counsel appearing for the petitioner, this Court has held that a third party to the agreement is not entitled to get impleaded. At the same time, this Court has held that the plaintiff is dominus litus and he / she cannot be compelled to add parties against whom he / she does not seek any relief. However, in the case on hand, the plaintiff / the first respondent herein, filed an application to implead the petitioner as a party and hence, the said judgment may not some way help the case of the petitioner. 11.1. The decision reported in (2010) 7 Supreme Court Cases 417 : AIR 2010 SUPREME COURT 3109 was relied on by both the learned counsel appearing for the petitioner as well as learned counsel appearing for the first respondent. That is the case where the Airport Authority leased out the Airport premises to Mumbai International Airport Private Limited, the appellant in the said matter. The appellant filed an application for impleading itself as a party to the suit instituted by the first respondent therein. The claim of the appellant was that the property in question was leased out to it and hence, it was a proper and necessary party. The Hon'ble Apex Court, in those circumstances, has held that the fact that if the Airport Authority succeeds in the suit, the suit land may also be leased out to the appellant is not sufficient to hold that the appellant has got any right, interest or semblance of right or interest in the suit property. The Hon'ble Apex Court, in those circumstances, has held that the fact that if the Airport Authority succeeds in the suit, the suit land may also be leased out to the appellant is not sufficient to hold that the appellant has got any right, interest or semblance of right or interest in the suit property. It has been further held that when the appellant is neither claiming any right nor remedy against the first respondent therein, who has instituted the suit and when the first respondent has not claimed any right or remedy against the appellant in a suit for specific performance by the first respondent against the Airport Authority, the appellant cannot be a proper or necessary party. 11.2. While considering the claim of the appellant to implead itself as a party, the Hon'ble Apex Court, in the said decision, has held that a necessary party is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a necessary party is not impleaded, the suit itself is liable to be dismissed. A proper party is a party, though not a necessary party, is a person whose presence would enable the Court to completely, effectively and adequately adjudicate upon all the matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. 11.3. The Hon'ble Apex Court in the said judgment has also considered the observation of a two-Judge Bench of the Supreme Court in Sumitibaiv. Paras Finance Co. reported in 2007 (10) SCC 82 , wherein it was held that a person need not have any subsisting right or interest in the suit property for being impleaded as a defendant and that even a person who is likely to acquire an interest therein in future, in appropriate cases, is entitled to be impleaded as a party. A three-Judge Bench of the Supreme Court in Kasturiv. Iyyamperumal – ( 2005 (6) SCC 733 ) was also considered by the Hon'ble Apex Court. In the said decision, it has been held that in a suit for specific performance of an agreement of sale of property, a stranger or a third party to the contract cannot be added as defendant in the suit. Iyyamperumal – ( 2005 (6) SCC 733 ) was also considered by the Hon'ble Apex Court. In the said decision, it has been held that in a suit for specific performance of an agreement of sale of property, a stranger or a third party to the contract cannot be added as defendant in the suit. While considering both the judgments, the Hon'ble Apex Court has held in paragraphs 10 and 11 as follows:- "10. The learned counsel for the first respondent on the other hand submitted that the decision in Sumtibai is not good law in view of an earlier decision of a three-Judge Bench decision of this Court in Kasturi v. Iyyamperumal ( 2005 (6) SCC 733 ): ( AIR 2005 SC 2813 : 2005 AIR SCW 2368). In Kasturi, this Court reiterated the position that necessary parties and proper parties can alone seek to be impleaded as parties to a suit for specific performance. This Court held that necessary parties are those persons in whose absence no decree can be passed by the court or those persons against whom there is a right to some relief in respect of the controversy involved in the proceedings; and that proper parties are those whose presence before the court would be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person. Referring to suits for specific performance, this Court in Kasturi, held that the following persons are to be considered as necessary parties: (i) the parties to the contract which is sought to be enforced or their legal representatives; (ii) a transferee of the property which is the subject-matter of the contract. This Court also explained that a person who has a direct interest in the subject-matter of the suit for specific performance of an agreement of sale may be impleaded as a proper party on his application under Order 1 Rule 10 CPC. This Court concluded that a purchaser of the suit property subsequent to the suit agreement would be a necessary party as he would be affected if he had purchased it with or without notice of the contract, but a person who claims a title adverse to that of the defendant vendor will not be a necessary party. This Court concluded that a purchaser of the suit property subsequent to the suit agreement would be a necessary party as he would be affected if he had purchased it with or without notice of the contract, but a person who claims a title adverse to that of the defendant vendor will not be a necessary party. The first respondent contended that Kasturi2 held that a person claiming a title adverse to the title of defendant vendor, could not be impleaded, but the effect of Sumtibai would be that such a person could be impleaded; and that therefore, the decision in Sumtibai is contrary to the larger Bench decision in Kasturi. ( AIR 2007 SC 3166 : 2007 AIR SCW 6125) 11. On a careful consideration, we find that there is no conflict between the two decisions. The two decisions were dealing with different situations requiring application of different facets of sub-rule (2) of Rule 10 of Order 1. This is made clear in Sumtibai itself. It was observed that every judgment must be governed and qualified by the particular facts of the case in which such expressions are to be found; that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision and that even a single significant detail may alter the entire aspect; that there is always peril in treating the words of a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. The decisions in Ramesh Hirachand Kundanmal v. Municipal Corpn. of Greater Bombay ( 1992 (2) SCC 524 ) : (1992 AIR SCW 846) and Anil Kumar Singh v. Shivnath Mishra ( 1995 (3) SCC 147 ) : (1995 AIR SCW 1782) also explain in what circumstances persons may be added as parties. " Thus, the Hon'ble Apex Court has held that a third party cannot be impleaded in a suit for specific performance if he has no semblance of title in the property in dispute. The Hon'ble Apex Court, in the said decision, also held that if a party claiming to be impleaded himself as a party, if established a semblance of title over the suit property, he can be impleaded. The Hon'ble Apex Court, in the said decision, also held that if a party claiming to be impleaded himself as a party, if established a semblance of title over the suit property, he can be impleaded. Further, it has been held that a person who has a direct interest in the subject matter of the suit for specific performance of an agreement of sale may be impleaded as a proper party on his application under Order 1 Rule 10 C.P.C. It has also been held that a purchaser of the suit property subsequent to the suit agreement would be a necessary party as he would be affected if he had purchased it with or without the notice of the contract. However, a person who claims a title adverse to that of the defendant – vendor will not be a necessary party. In the case on hand, as stated already, it is the case of the plaintiff / first respondent that the second respondent has sold the property to the petitioner in order to deprive her right. Moreover, the application has been filed by the first respondent, who is dominus litus. 12. Considering the over all circumstances, I am of the considered view that the Court below has rightly allowed the application filed by the first respondent and I do not find any infirmity or illegality in the said order, which requires interference by this Court. 13. In fine, the order of the learned Additional District Judge, Puducherry at Karaikkal dated 1.9.2010 made in I.A.No.78 of 2008 in O.S.No.55 of 2007 is confirmed and the civil revision petition stands dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.