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2012 DIGILAW 249 (PAT)

Parbati Devi v. Ram Sewak Singh

2012-02-09

SAMARENDRA PRATAP SINGH

body2012
ORDER The instant writ application has been filed against the order dated 24.05.2007 passed by Sub-Judge-IV, Arrah in Title Suit no. 156 of 2001, whereby the learned court was pleased to allow the intervention application of respondent no.4 in a suit for specific relief. 2. The petitioner is plaintiff of Title Suit no.156 of 2001 before Sub-Judge-1, Arrah for specific performance of Mahadnama executed by the defendant no.1/respondent no.1 on 18.12.2000 in his favour. Defendant nos. 2 and 3 in suit are formal parties, who are respondent nos.2 to 3 in the suit. 3. On 24.03.2007, respondent no.4 filed a petition under Order 1 Rule 10 of the C.P.C. read with Section 151 C.P.C. for being added as defendant no.4. Respondent no.4 in her petition stated that prior to filing of the suit, defendant no.1 had executed a registered sale deed in her favour on 23.12.2000, as such she would be a necessary party. The petition of respondent no.4 was opposed by the plaintiff. 4. The trial court on 24.05.2007 allowed the petition of intervener respondent for being impleaded a defendant in the suit. The trial court was of the view that as the intervener had purchased the suit property prior to filing of the suit, he would be a necessary party for disposal of the suit. The trial court also observed that addition of intervener as defendant would not change the nature of the suit and in fact his addition as party defendant would be in interest of plaintiff-petitioner herself. 5. The petitioner has assailed the impugned order on the ground that a stranger cannot be added as a party defendant in a suit for specific performance. In support of his submissions, learned counsel has placed reliance upon a full Bench decision of Madhya Pradesh High Court rendered in case of Panne Khushali and Ano. Vs. Jeewan Lal Mathoo Khatik & Ors., reported in A.I.R. 1976 M.P. 148. The petitioner argued that addition of respondent no.4 (intervener) as party defendant no.4 would lead to dispute regarding title, which cannot be gone into in a suit for specific performance. 6. On the other hand the contesting respondents, namely respondent no.4 supported the order of the trial court stating that she would be not stranger rather a necessary party for deciding the issues involved in the suit. 7. I have heard the learned counsel for the parties. 6. On the other hand the contesting respondents, namely respondent no.4 supported the order of the trial court stating that she would be not stranger rather a necessary party for deciding the issues involved in the suit. 7. I have heard the learned counsel for the parties. The facts of the case are in a narrow compass and substantially not in dispute. It is an admitted position that defendant no.1, who is respondent no.1 in this writ application, executed Mahadnama in favour of the plaintiff on 18.11.2000. Defendant no.1 transferred the suit land in favour of respondent no.4 on 23.12.2000 much prior to filing of the suit in 2001. 8. The issue is whether in a suit for specific performance, a purchaser of the suit property from its admitted owner before filing of the suit, is a necessary party or not and whether he / she should be added a party or not. 9. Before I examine the submissions of learned counsel for the parties, it would be necessary to notice the general principles governing impleadment of a party and the relevant laws. 10. Order 1 Rule 10 (2) of C.P.C. confers power on the court to strike out or add party. It provides that the court may at any stage of the proceedings, either upon or without the application of either party, may add a party as plaintiff or defendant, who may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. The provisions is quoted herein below: Order 1 Rule 10(2) of C.P.C. is quoted herein below:– “Court may strike out or add parties.– The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added”. 11. The Hon’ble Apex Court in case of Kasturi Vs. 11. The Hon’ble Apex Court in case of Kasturi Vs. Iyyamperumal, reported in 2005(6) SCC 733 , the three judges bench observed that necessary parties are those parties in whose absence no decree can be passed by the court or those persons against whom there is 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 persons. The learned judge observed that the following persons are to be considered as a necessary parties in a suit for Specific Performance; namely (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, (iii) A person, who has direct interest in the subject matter of the suit for a suit of Specific Performance of an agreement by a purchaser of the suit property consequent to the agreement would also be a necessary party, as he would be affected if he had purchased it with or without notice of a contract. However a person, who claims a title adverse to the defendant / vendor would not be a necessary party. 12. The provision vests power in a court to add a party as plaintiff or defendant, whose presence would be necessary in order to effectually and completely adjudicate upon or settle a question. 13. A Full Bench of M.P. High Court (FB) in case of Panne Khushali (supra) reported in AIR 1976 M.P. 148 , while drawing clue from principles in “Corpus Juris Secundum” observed that necessary parties or indispensable parties are those without whom the Court will not proceed to any decree, even as to the parties before it. This class includes all persons who have an interest in the controversy of such a nature that a final decree cannot be made without either affecting their interests or leaving the controversy in such a condition that its final determination may be wholly inconsistent with the equity and good conscience. 14. This class includes all persons who have an interest in the controversy of such a nature that a final decree cannot be made without either affecting their interests or leaving the controversy in such a condition that its final determination may be wholly inconsistent with the equity and good conscience. 14. The Full Bench observed that persons whose interests will necessarily be affected by any decree that can be rendered are necessary and indispensable parties, though the object rather than the subject of the suit must be looked to, and only those are necessary parties whose rights are involved in the purpose of bill. Further more, the prayer for relief is also important in determining the requisite parties, as one need not be made a party against whom no relief is demanded. 15. Section 19 (b) of the Specific Relief Act, 1963 requires to be noticed, as it would be relevant in the conflict of the dispute, which is quoted herein below:– “19. Relief against parties and persons claiming under them by subsequent title.-Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against– (a) either party thereto; (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;” 16. The Section provides that if the plaintiff is able to prove that the second purchaser purchased the suit land covered under an agreement to sell, he can enforce his relief against such parties as well. It is thus in the interest of plaintiff that such persons are added as a party and if the former objects to such addition of the party once he has knowledge of the consequent registered sale, the suit for specific performance would itself fail for non-joinder of necessary party. Thus, a person, who does not claim a title adverse to that of the defendant vendor through whom the plaintiff is claiming, will not alter the nature of the suit or introduce a new cause of action. 17. The Hon’ble Apex Court in case of Kasturi (supra) held that in a suit for specific performance, only the party to the contract or any legal representative of a party to the contract or a transferee of a party to the contract are necessary party. 17. The Hon’ble Apex Court in case of Kasturi (supra) held that in a suit for specific performance, only the party to the contract or any legal representative of a party to the contract or a transferee of a party to the contract are necessary party. The decision rendered by Full Bench of Hon’ble M.P. High Court in case of Panne Khushali & Ano (supra) would be of no help to plaintiff, rather the same would support the case of defendant-respondent no.4. One of the main issues framed in the case is as follows:– “Whether in a suit for specific performance of a contract for sale, a third person intervener, who contends that the suit property is joint property of the applicant and he is also the co-owner of that property, would be made a party (defendant)” 18. Where a 3rd person/intervener claims that he purchased the suit land from a co-owner, he in effect disputes the ownership of the person through whom plaintiff is claiming. In such circumstances, the Full Bench of Hon’ble M.P. High Court observed that strangers to the contract making a claim adverse to the title of vendor - defendant came to be added a party in a suit for specific performance. But the facts of the instant case is otherwise; here the intervener did not dispute the title of the vendor through whom the plaintiff was claiming on which petitioner has relied itself in paragraph 11. 19. The M.P. (F.B) approvingly quoted judgment of D.B. of the Calcutta High Court in case of Prem Sukh Gulgulia Vs. Habib Ullah, reported in 1945 Cal. 355. The relevant paotions are quoted herein below:– “The necessary parties in a suit for specific performance of contract for sale are the parties to the contract, or if they are their dead their legal representatives, as also a person who had purchased the property from the vendor after the contract”. 20. The Full Bench of M.P. High Court, on which plaintiff relied, observed that a person who had purchased the property from the vendor through whom, plaintiff is claiming is a necessary party The judgment in fact supports the case of defendant-respondent no.4. 21. 20. The Full Bench of M.P. High Court, on which plaintiff relied, observed that a person who had purchased the property from the vendor through whom, plaintiff is claiming is a necessary party The judgment in fact supports the case of defendant-respondent no.4. 21. In view of the discussions made above, I find that the trial court rightly allowed the application of respondent no.4 for being added as a party/defendant under Order1 Rule 10, as he was purchaser from the defendant/vendor through whom the plaintiff was also claiming and as such would be a necessary party. The addition of defendant no.4 would neither change the nature of case or bring a new cause of action. 22. In the result, this application is dismissed but there would be no order as to costs.