Research › Search › Judgment

Orissa High Court · body

2011 DIGILAW 438 (ORI)

Jasobanti Mahakud v. Ramesh Padhan

2011-08-19

B.K.NAYAK

body2011
JUDGMENT B.K. NAYAK, J. — Order dated 06.07.2010 passed by the learned Civil Judge (Senior Division), Bargarh in C.S. No.75 of 2008 allowing impletion of opposite party No.1 as a party-defendant in the suit has been assailed by the plaintiff in this writ petition. 2.The plaintiff’s suit is one for specific performance of contract for sale of the suit property and in the alternative to refund the advance amount along with interest, on the assertions that the defendant No.1 is the karta of his joint family and defendant Nos.2 to 4 are his sons and that in a family partition the suit property fell to the share of defendant No.1 and that defendant Nos.1 to 4 being in need of money for repayment of loan and development of cultivation jointly executed an agreement for sale of the suit land in favour of the husband of the plaintiff after receiving an advance consideration of Rs.67,500/-. During his life time the husband of the plaintiff-petitioner requested defendant Nos.1 to 4 to receive the balance consideration and to execute the sale deed and after his death the plaintiff made similar requests, but the defendants denied execution of the agreement. Defendant Nos.1 to 4 filed their joint written statement denying the plaint assertion and further contending that they have never executed any agreement for sale, but on the other hand borrowed a sum of Rs.50,000/- from plaintiff’s late husband with condition to repay the same with interest and that on different occasions they have repaid more than the amount due in shape of paddy. In the suit the present opposite party No.1 filed a petition under Order 1 Rule 10 C.P.C. to be impleaded as a party defendant stating that he is the youngest son of defendant No.1 and the suit property being his ancestral property, he has interest therein and therefore he is a necessary party to the suit. The said petition has been allowed by the Court below holding that the land in question bears interest of the petitioner (present opposite party No.1) and though he may be a stranger to the contract, he cannot be said to be the stranger to the consideration under the agreement to sell. The said petition has been allowed by the Court below holding that the land in question bears interest of the petitioner (present opposite party No.1) and though he may be a stranger to the contract, he cannot be said to be the stranger to the consideration under the agreement to sell. 3.Learned counsel for the petitioner relying on the decision of the Apex Court reported in AIR 2005 SC 2813 (Kasturi v. Iyyamperumal and others) and AIR 1996 S.C. 2755 and the decision of this Court reported in 2008 (II) OLR 747 (Panjum Bibi alias Ramjan Bibi and 7 others v. Najma Alim and another) has contended that in the suit for specific performance of contract for sale the lis between the purchaser and the vendor shall only be gone into and it is not open to the Court to decide whether a 3rd party to the contract has acquired any title and possession of the property in question, which is not relevant for the decision in the suit for specific performance of contract for sale. According to him, this is so because the enforceability of the contract between the parties to the contract is only to be gone into in the suit for specific performance and any other person claiming title to the property if allowed to be added, the scope of the suit for specific performance would be enlarged and it would be practically converted to a suit for title. The learned counsel for opposite party No.1 placing reliance on a single Bench decision of Punjab & Haryana High Court reported in AIR 1984 Punjab & Haryana 365 (Atul Sharma and another v. Gurinder Singh and others) has submitted that in a suit for specific performance of contract for sale, a non-contracting coparcener in respect of the property can be impleaded as a party. 4.In the case of Kasturi (supra) where in a suit for specific performance of contract for sale, a third party to the contract claiming to have independent title and possession over the contracted property filed an application to be impleaded as party, the apex Court negated his claim holding that a stranger to the contract for sale claiming independent title is not a necessary party because the plaintiff has no right to relief against such party in respect of the controversies involved in the suit. Further taking note of Section 19 of the Specific Relief Act, 1963 the Court held that specific performance cannot be enforced against a person who is not a party to the contract or who is not claiming under such party but claiming independent title. Regarding the question whether he is a proper party the Court observed as under : “10. As noted herein earlier, two tests are required to be satisfied to determine the question who is a necessary party, let us now consider who is a proper party in a suit for specific performance of a contract for sale. For deciding the question who is a proper party in a suit for specific performance the guiding principle is that the presence of such a party is necessary to adjudicate the controversies involved in the suit for specific performance of the contract for sale. Thus, the question is to be decided keeping in mind the scope of the suit. The question that is to be decided in a suit for specific performance of the contract for sale is to the enforceability of the contract entered into between the parties to the contract. If the person seeking addition is added in such a suit, the scope of the suit for specific performance would be enlarged and it would be practically converted into a suit for title. Therefore, for effective adjudication of the controversies involved in the suit, presence of such parties cannot be said to be necessary at all......” 5.Interpreting the scope of sub-Rule (2) , Order 1 Rule 10 of C.P.C., the apex Court further observed as under : “15. That apart, from a plain reading of the expression used in sub-rule (2), Order 1, Rule 10 of the CPC “all the questions involved in the suit” it is abundantly clear that the legislature clearly meant that the controversies raised as between the parties to the litigation must be gone into only, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiff/appellant and the defendants inter se or questions between the parties to the suit and a third party. In our view, therefore, the Court cannot allow adjudication of collateral matters so as to convert a suit for specific performance of contract for sale into a complicated suit for title between the plaintiff/appellant on one hand and Respondent Nos.2 and 3 and Respondent Nos.1 and 4 to 11 on the other. This addition, if allowed, would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit would have to be gone into. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of the respondent Nos.1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made herein earlier, the respondent Nos.1 and 4 to 11 would not, at all, be necessary to be added in the instant suit for specific performance of the contract for sale.” In giving such interpretation the apex Court also laid emphasis on the principle that the plaintiff is dominus litis and in a suit for specific performance of contract for sale, he cannot be forced to add party against whom he does not want to fight unless it is a compulsion of the rule of law. 6.This Court in the case of Panjum Bibi alias Ramjan Bibi (supra) has observed as follows : “7. While considering the application for impleadment under Order 1 Rule 10 CPC, the Court must keep in mind that plaintiff is the sole architect of his plaint and he has a right to choose his own adversary against whom he seeks relief. Mere apprehension of any party that the plaintiff and defendant of the suit may collusively get their suit decided remains unfounded as whatever may be the judgment and order in a suit it cannot be binding on him as he was not a party in the suit. Such judgment or order shall have no legal effect so far as the person who is not a party in the case is concerned. Impleadment may be necessary to avoid multiplicity of the suit, but it cannot be the sole ground. Facts and circumstances of the case must show that unless a person is impleaded in the suit there is likelihood of further litigation in the same matter on the same issues. Impleadment may be necessary to avoid multiplicity of the suit, but it cannot be the sole ground. Facts and circumstances of the case must show that unless a person is impleaded in the suit there is likelihood of further litigation in the same matter on the same issues. The plaintiff being the master of the suit cannot be compelled to file the same against whom he does not wish to fight and against whom he does not claim any relief. It is only in exceptional circumstances where the Court finds that addition of new party is absolutely necessary to enable it to adjudicate effectively and completely the matter in controversy between the parties it will added him as party. For the aforesaid observation the Division Bench placed reliance in the case of Kasturi (supra). 7.A Full bench of the Madhya Pradesh High Court in the decision reported in AIR 1976 M.P. 148 : Panne Khushali and another v. Jeewanlal Mathoo Khatik and another, have held that a non-contracting coparcener or co-owner of property cannot be added as a party to the suit for specific performance of contract for sale filed against the parties to the contract since such coparcener/co-owner is neither a necessary party nor a proper party to such suit. 8.In the case of Atul Sharma, (supra) cited by the learned counsel for the opposite party No.1 a single bench of Punjab and Haryana High Court allowed the petition for impletion of a coparcener as party to the suit for specific performance of contract for sale placing reliance in the decision reported in AIR 1964 S.C. 1385 (Balmukund v. Kamalawati and others). On perusal of Balmukund’s case it is found that the Supreme Court was not dealing with the question of addition of party to a suit for specific performance under Order 1 Rule 10(2) C.P.C.. That was a suit for specific performance filed against all the joint owners of property even though only one of the joint owners (karta) had contracted to sell. The non-contracting defendants resisted the suit on the ground that the agreement for sale was not for benefit of estate of the joint family. Parties having entered into such contest, the Courts were called upon to decide the question whether the contract for sale was for the benefit of estate of the joint family. The non-contracting defendants resisted the suit on the ground that the agreement for sale was not for benefit of estate of the joint family. Parties having entered into such contest, the Courts were called upon to decide the question whether the contract for sale was for the benefit of estate of the joint family. Rather in the said decision the Supreme Court in para 11 of the judgment have said that Pindidas (the Karta who entered into the contract) was bound by the contract and the plaintiff would have been entitled to relief to the extent of his share in accordance with the provision of Section 15 of the Specific Relief Act, 1877, which now corresponds to Section 12(3) of the present Act of 1963. 9.In the case in hand, the petitioner in his petition under Order 1 Rule 10 C.P.C. filed before the trial Court has not challenged the execution of the agreement for sale by opposite party Nos.2 to 5 on the ground that the proposed sale was not for benefit of estate of the family. Besides, the opposite party Nos.2 to 5 (defendants) in their written statement have altogether denied the execution of the agreement for sale by them. Assuming that the petitioner is the son of defendant No.1, his claim to have interest in a coparcenary property is independent of the claim of defendant No.1 and he does not claim under defendant No.1, as has been held by the Full Bench of M.P. High Court in (Panne Khushali & another (supra) and therefore, the decision of the Apex Court in Kasturi (supra) applies with full force to the facts of the case. The petitioner, therefore, being neither a necessary party nor a proper party to the suit for specific performance of contract for sale, the trial Court has erred in allowing impletion of the petitioner. On the foregoing analysis I allow the writ application and set aside the impugned order under Annexure-4. No costs. Application allowed.