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2011 DIGILAW 4182 (MAD)

M. A. S. Subramanian v. Dipti Patel

2011-09-30

K.VENKATARAMAN

body2011
JUDGMENT :- 1. The third party in the suit in O.S.No.3 of 2007 before the learned Principal District Judge, Puducherry, filed by the first respondent herein against the second respondent, has come up with the present civil revision petition on dismissal of his application by the said Court to implead himself as a party to the suit. 2. The first respondent has laid the said suit against the second respondent for a direction to the second respondent to transfer the schedule mentioned property to her and for permanent injunction restraining the second respondent from interfering with her peaceful possession and enjoyment over the suit property. It is the case of the first respondent that the second respondent offered to sell the suit property to her and she has paid the sale consideration and the sale deed was engrossed in the stamp paper. However, the second respondent has not executed the sale deed and hence, the said suit has been filed. 3. In the said suit, the petitioner herein has filed an application in I.A.No.28 of 2010 for impleading himself as a party. The claim of the petitioner was that the second respondent has entered into a sale agreement in respect of the suit property with him on 27.9.2004 and received the advance. Pursuant to the same, a sale deed was executed in his favour on 22.10.2007 upon receiving the balance sale consideration and possession was also handed over to him on the said date. Since the first respondent attempted to interfere with his possession and enjoyment over the suit property, he has filed a suit for permanent injunction restraining the first respondent from interfering with his peaceful possession and enjoyment over the suit property in O.S.No.131 of 2008 and the same is pending. In the backdrop of the matter, being a bona fide purchaser of the suit property even prior to the institution of the present suit, he shall be impleaded as a party to the said suit. 4. The said application was resisted by the first respondent on the ground that the first respondent herein, who has laid the suit, is a dominus litus, who has to decide as to who has to be added in the suit filed by her and the petitioner herein is not a necessary party. 4. The said application was resisted by the first respondent on the ground that the first respondent herein, who has laid the suit, is a dominus litus, who has to decide as to who has to be added in the suit filed by her and the petitioner herein is not a necessary party. In the said suit, the question that has to be decided is whether there was an agreement of sale between the first respondent and the second respondent and whether it is enforceable. 5. The trial Court, considering the rival submissions, dismissed the application preferred by the petitioner and the present civil revision petition is directed against the said order. 6. I have heard the learned Senior Counsel appearing for the petitioner and the learned counsel appearing for the first respondent. 7. The question that has to be considered is whether the petitioner is a necessary or a proper party. In the decision reported in (2005) 6 Supreme Court Cases 733 - Kasturi v. Iyyamperumal and others, which has been relied on by the learned counsel appearing for the first respondent, 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, it is the case of the petitioner that he has purchased the property from the second respondent even prior to the filing of the suit. He is not claiming any independent title and possession adversely to the title of the vendor viz., the second respondent. 8.1. The judgment reported in (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, was relied on by the 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. 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. 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. 8.2. 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. 8.3. The Hon'ble Apex Court in the said judgment has also considered the observation of a two-Judge Bench of the Supreme Court in Sumitibai v. 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. 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 Kasturi v. 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. 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. 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. 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. 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 petitioner that the second respondent has sold the property to him. In such circumstances, I am of the considered view that the application filed by the petitioner to implead himself ought to have been acceded to by the trial Court. 9. In the decision reported in 2010 (6) CTC 192 - Robust Hotels (P) Ltd v. E.I.H.Limited, which was relied on by the learned counsel appearing for the petitioner, the Division Bench of this Court in paragraph 20, has held as follows:- "20. A proper and necessary party to a suit is a party whose presence and participation is absolutely necessary for a final adjudication of the lis. It is immaterial as to the extent of relief sought for against it or the subject of controversy involved in the suit. In the case it is demonstrated that any decision made in the suit would prejudicially affect the interest of a particular person, he should be treated as a necessary party. It is immaterial as to the extent of relief sought for against it or the subject of controversy involved in the suit. In the case it is demonstrated that any decision made in the suit would prejudicially affect the interest of a particular person, he should be treated as a necessary party. " 10. In the decision reported in 2011 (1) CTC 331 - K.P.Rajendran v. N.R.Rachimuthu, which was relied on by the learned counsel appearing for the petitioner, this Court, in paragraphs 6 and 7 has held as follows:- "6. Therefore, a combined reading of Section 15 and 19 of the said Act, makes it clear that the parties to the contract and their representatives in interest can claim enforcement of the contract and the contract can be enforced against either party or any other person claiming under him by a title arising subsequently to the contract. 7. In this case, it is admitted that after filing of the suit, the fourth respondent purchased the property from the other defendants and therefore, she is coming under Section 19 (b) of the said Act. Further, under section 19(b) of the said Act, if the subsequent purchaser is able to prove that he is transfree for value, who paid the money in good faith and without notice of the original contract, the specific performance of contract cannot be enforced against him and therefore, the subsequent purchaser is entitled to get the suit dismissed filed by the prospective purchaser under the arrangement of sale, if he is able to prove that he is bona fide purchaser for value and he purchased the property without notice of the original contract. Therefore, the subsequent purchaser, who purchased the subject matter of the suit from one of the parties is a necessary party to have a binding decree against other parties. ... " 11. In the decision reported in 2007 (2) CTC 73 - S.Krishnan v. Rathinavel Naicker and 22 others, this Court, in paragraph 17, has held as follows:- "17. Therefore, the subsequent purchaser, who purchased the subject matter of the suit from one of the parties is a necessary party to have a binding decree against other parties. ... " 11. In the decision reported in 2007 (2) CTC 73 - S.Krishnan v. Rathinavel Naicker and 22 others, this Court, in paragraph 17, has held as follows:- "17. In a nut shell, the tests to be applied for determining the right of a party to implead another, in a pending suit or other proceeding, may be crystallized into the following categories: (a) If without his presence no effective and complete adjudication could be made; (b) If his presence is necessary for a complete and effectual adjudication of the dispute though no relief is claimed against him; (c) If there is a cause of action against him; (d) If the relief sought in the suit or other proceedings is likely to be made binding on him; (e) If the ultimate outcome of the proceedings is likely affect him adversely; (f) If his role is really that of a necessary witness but is sought to be camouflaged as a necessary party. ... " Undoubtedly, the ultimate outcome of the suit initiated by the first respondent if ends in her favour, is likely to adversely affect the petitioner. Hence, as per the said judgment, the petitioner has to be considered as a proper party. 12. Learned counsel appearing for the first respondent contended that the petitioner was aware of the claim made by the first respondent and the proceedings under Section 45 C.P.C. initiated in this case was well within the knowledge of the petitioner. Nevertheless, the petitioner is said to have purchased the property on 22.10.2007. Hence, he has purchased the property knowing fully well about the claim of the first respondent. However, I am of the considered view that these are the issues that have to be considered at the time of trial and not at this stage. 13. Considering the over all circumstances, I am of the considered view that the order of the Court below which is under challenge in this civil revision petition, is liable to be set aside. 14. In fine, the order of the learned Principal District Judge, Puducherry, dated 31.3.2010 made in I.A.No.28 of 2010 in O.S.No.3 of 2007 is set aside and the civil revision petition stands allowed. 14. In fine, the order of the learned Principal District Judge, Puducherry, dated 31.3.2010 made in I.A.No.28 of 2010 in O.S.No.3 of 2007 is set aside and the civil revision petition stands allowed. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.