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2012 DIGILAW 2958 (MAD)

R. Radha v. A. S. Ibrahim Rawather

2012-07-11

T.MATHIVANAN

body2012
Judgment :- 1. This application is filed under Order XIV Rule 8 of the Original Side Rules read with Order I Rule 10(2) of the Code of Civil Procedure to implead the applicant as the second defendant in the suit in C.S.No.506 of 2005. 2. The applicant is a third party to the suit in C.S.No.506 of 2005. According to the applicant, she had purchased the property, in respect of which the suit has been filed by the first respondent/plaintiff seeking the relief of specific performance, under a registered sale deed dated 30.11.2006 for a total sale consideration of Rs.79,20,000/-and the sale in her favour has been suppressed by the second respondent for the reasons best known to him. 3. The first respondent and the second respondent had entered into an agreement of sale dated 10.06.2002 in respect of the suit property for a total sale price of Rs.7,00,000/- and that the first respondent had paid a sum of Rs.5,00,000/-to the second respondent towards the advance amount. Since the second respondent had failed to execute the sale deed in favour of the first respondent, he has filed the suit against the second respondent for the relief of specific performance. Under this circumstance, this application has been brought before this Court by the applicant claiming that she has become the absolute owner for having purchased the same on 30.11.2006 under a registered sale deed and therefore she wants to implead himself as the second defendant in the suit. 4. The first respondent/plaintiff, in his counter, has contended that he had entered into an agreement of sale on 10.06.2002 with the second respondent/defendant in respect of the suit property and since the second respondent had committed breach of the terms of sale agreement, he has filed this suit for specific performance on 12.06.2005. 5. At the time of filing the suit, he had filed an application in O.A.No.601 of 2005, seeking the relief of an Order of interim injunction, against the second respondent and his men from encumbering, alienating or otherwise dealing with the property. 6. In that application, this Court was pleased to order on 01.09.2009 to maintain status-quo as regards the possession and enjoyment of the suit property till the disposal of the suit. 6. In that application, this Court was pleased to order on 01.09.2009 to maintain status-quo as regards the possession and enjoyment of the suit property till the disposal of the suit. Despite the Order of this Court, the second respondent, suppressing the fact that the existence of sale agreement dated 10.06.2002 entered into between him and the first respondent, had prepared the alleged sale deed in collusion with the applicant to create complication and frustrate the agreement of sale. 7. The second respondent/defendant has also contended that the trial was commenced in the suit and the evidence on the part of both the plaintiff as well as the defendant was completed. The case itself was posted for argument and the first respondent, who is the plaintiff in the suit, for the purpose of dodging the Court from giving finality, had introduced the applicant without any justification or reason to file this application in a suit of specific performance of contract. 8. The suit was filed in the year 2005 and was successfully dragged on till this date i.e., upto 2012. When the case had been slowly reaching the finality of the trial, the first respondent/plaintiff, with an oblique motive, had brought this applicant to interfere in the suit to protract the further proceedings of the suit and to create unnecessary issue as if there is some kind of right in favour of the applicant. 9. Heard Mr. T. K. S. Gandhi, learned counsel appearing for the applicant, Mr.C.Ramesh, learned counsel appearing for the first respondent/plaintiff and Mr.V.Manohar, learned counsel appearing for the second respondent/defendant. 10. On examination of the averments of the application as well as the counter affidavits filed on behalf of the respondents 1 and 2, the following issue has been arisen for the consideration of this Court: "Whether the applicant, who is a third party, is a necessary and proper party to the suit?" 11. "The court must be very circumspect in dealing with the application of a third party seeking leave to become party in the suit, when the plaintiff, who is the dominus litis of the suits is opposed to it. "The court must be very circumspect in dealing with the application of a third party seeking leave to become party in the suit, when the plaintiff, who is the dominus litis of the suits is opposed to it. If the consequence of such addition would involve a de novo trial the court should normally have disallowed the application." This proposition of law has been laid down by the Apex Court in Anokhe Lal vs. Radhamohan Bansal and others, reported in AIR 1997 SC 257 . 12. It is manifested from the records that the second respondent/defendant has been contesting the suit and the examination of witnesses have been completed and the suit has attained the stage of advancing of arguments on behalf of both sides. 13. Only under this circumstance, the applicant, who is a stranger to the suit, has come forward with this application seeking permission to implead herself as one of the defendant to put forth her claim. 14. Mr. T. K. S. Gandhi, learned counsel appearing for the applicant has submitted that on 30.11.2006 the applicant had purchased the property, which is the subject matter of the present suit, from the second respondent/defendant under a registered sale deed for a total sale consideration of Rs.79,20,000/-. 15. It is pertinent to note here that the agreement of sale, which is said to have been entered into between the first respondent/plaintiff and the second respondent/defendant is dated back to 10.06.2002. The first respondent/plaintiff has filed the suit for specific performance on 12.06.2005 alleging that the second respondent/defendant had refused to perform his part of contract. 16. It is also manifested that along with the suit the first respondent/plaintiff had filed an application seeking the relief of interim injunction against the second respondent/defendant to restrain him, his men, agents, servants or any other person acting on his behalf from encumbering alienating or otherwise dealing with the property. 17. The records are also revealed that this Court had ordered status quo on 01.09.2009 directing the first respondent/plaintiff and the second respondent/defendant to maintain status quo as regards the possession and enjoyment of the suit property till the disposal of the suit. 18. As per the contention of the applicant, she has purchased the property on 30.11.2006 under the registered sale deed from the second respondent/defendant during the pendency of the suit. 19. In this connection, Mr. 18. As per the contention of the applicant, she has purchased the property on 30.11.2006 under the registered sale deed from the second respondent/defendant during the pendency of the suit. 19. In this connection, Mr. C. Ramesh, learned counsel appearing for the first respondent/plaintiff has canvassed that at the time of passing of the Order in the application in O.A.No.601 of 2005 i.e., on 01.09.2009 the second respondent/defendant could have very well disclosed the fact about the alleged sale in favour of the applicant. But, he had miserably failed to do so. 20. He has added further that the averments of the affidavit filed in support of this application itself would disclose the fact that the applicant had knowledge about the agreement of sale in favour of the first respondent/plaintiff. 21. Mr. C. Ramesh, learned counsel, during the course of his argument, has taken this Court through the testimony of the defendant (D.W.1), wherein he has stated as under: ".....the suit property is a shallow pit containing water and thorns and bushes. There is no proper thar road to the suit property. Plaintiff already owns the property adjacent to the suit property. Since there is no other access to the suit property, the plaintiff is the person who can enjoy the property better since he has already access from his property." Referring this portion of evidence, given by D.W.1, he would submit that the applicant could not be in possession as claimed by her and that the applicant is bound by the Order of status quo since she is claiming right over the property under the defendant. 22. He has also submitted that the applicant is neither a necessary nor a proper party to the suit and has urged that she could not be allowed to defeat the rights of the first respondent/plaintiff accrued through the agreement of sale dated 10.06.2002. 23. Mr. V. Manohar, learned counsel appearing for the second respondent/defendant has fairly conceded, during the course of his argument, saying that the evidence on the part of both the plaintiff as well as the defendant was completed and that the case was posted for argument. He would further submit that knowing fully well that he could not succeed in the suit, the first respondent/plaintiff had introduced the applicant herein without any justification or reason to file this application to cause trammel to the progress of the trial proceedings. He would further submit that knowing fully well that he could not succeed in the suit, the first respondent/plaintiff had introduced the applicant herein without any justification or reason to file this application to cause trammel to the progress of the trial proceedings. 24. Mr. V. Manohar, has also argued that this suit is based on the agreement of sale alleged to have been entered into between the first respondent/plaintiff and the second respondent/defendant. The questions, to be decided in the suit, are as to whether the first respondent/plaintiff has justified his claim of specific performance and as to whether a decree for specific performance could be passed in favour of the first respondent/plaintiff as against the second respondent/defendant. 25. He has also submitted that apart from these questions, no other issue is involved in this case either for the first respondent/plaintiff or for the applicant to interfere in the suit. He has also adverted to that there is no purpose or reason for the applicant to file this application, after waiting for nearly about seven long years at the stage of argument to be advanced before this Court. 26. It is significant to note here that the alleged sale deed dated 30.11.2006 appears to have been executed during the pendency of the suit. The first respondent/plaintiff herein is the dominus litis. When the suit is about to attain the final stage of argument, the applicant has filed this application seeking permission to implead herself as one of the defendants. Her application seems to be an obstacle to the suit i.e., at the fag end of trial proceedings. Infact, there is no dispute or controversy between the first respondent/plaintiff and applicant, who claims herself to be the transferee of the property, which is the subject matter of the suit. 27. If at all she wants to establish her right and interest over the property, she should have proceeded against the second respondent/defendant. It is imperative on the part of this Court to place it on record that the second respondent/defendant has totally denied the alleged execution of the sale deed dated 30.11.2006 in favour of the applicant. 28. As rightly argued by Mr.V.Manohar, learned counsel appearing for the second respondent/defendant, this application has been brought out by the applicant after six years. It is imperative on the part of this Court to place it on record that the second respondent/defendant has totally denied the alleged execution of the sale deed dated 30.11.2006 in favour of the applicant. 28. As rightly argued by Mr.V.Manohar, learned counsel appearing for the second respondent/defendant, this application has been brought out by the applicant after six years. The averments of the affidavit filed in support of her application would disclose that the applicant was having knowledge about the existence of the sale agreement dated 10.06.2002 entered into between the first respondent/plaintiff and the second respondent/defendant. 29. Under this circumstance, it may be very relevant to extract the proviso to sub-rule (2) to Rule 10 of Order I of the Code of Civil Procedure. It reads as under: (2) 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. 30. In sub-rule (2) to Rule 10 of Order I C.P.C., the word 'at any stage of the proceedings' has been employed by the lawmakers to enable the Court or either party with or without application to implead a person as plaintiff or as defendant, at any stage of the proceedings of the suit. 31. The term 'at any stage of the proceedings' cannot be taken advantage by the applicant. As observed herein before, after the completion of evidence on both sides, the suit stood posted for advancing arguments on behalf of both sides. Only under this circumstance, the applicant has filed this application taking advantage of the term 'at any stage of the proceedings'. 32. Mr. As observed herein before, after the completion of evidence on both sides, the suit stood posted for advancing arguments on behalf of both sides. Only under this circumstance, the applicant has filed this application taking advantage of the term 'at any stage of the proceedings'. 32. Mr. T. K. S. Gandhi, learned counsel appearing for the applicant has submitted that the sale agreement dated 10.06.2002 was totally suppressed by the second respondent/defendant at the time of execution of the registered sale deed in favour of the applicant on 30.11.2006 and that this fact was let known to the applicant only recently and therefore she was constrained to file this application to get herself impleaded as one of the defendant to have her right established over the suit property. 33. In support of his contention, he has placed reliance upon the decision in Kasturi vs. Iyyamperumal and others, reported in (2005) 6 SCC 733 . In this case, the Apex Court has held that: "The question of jurisdiction of the court to invoke Order 1 Rule 10 C.P.C., to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct and legal interest in the controversy involved in the suit. A person is legally interested in the answers to the controversies only if he can satisfy the court that it may lead to a result that will affect him legally. A bare reading of Order 1 Rule 10(2) C.P.C., would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead, their legal representatives as also a person who had purchased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. Two tests are to be satisfied for determining the question who is a necessary party. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. Two tests are to be satisfied for determining the question who is a necessary party. Tests are (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party. In a suit for specific performance the first test can be formulated in the following manner, that is, to determine whether a party is a necessary party there must be a right to the same relief against the party claiming to be a necessary party, relating to the same subject matter involved in the proceedings for specific performance of contract for sale." 34. It is also to be highlighted that in the above cited decision, the Three Judges Bench of the Hon'ble Apex Court has held that: "Proper party to a suit for specific performance of the contract is a party, whose presence is necessary to adjudicate the controversies involved in the suit. Hence, parties claiming independent title and possession adverse to title of vendor, and not on basis of the contract, are not proper parties, for if such parties are impleaded scope of the suit for specific performance shall be enlarged to a suit for title and possession, which is impermissible. A third party or stranger to the contract cannot be added in a suit for specific performance merely in order to find out who is in possession of the contracted property or to avoid multiplicity of suits." 35. A third party or stranger to the contract cannot be added in a suit for specific performance merely in order to find out who is in possession of the contracted property or to avoid multiplicity of suits." 35. It is also to be pointed out that the Hon'ble Apex Court has also observed that: "From a plain reading of the expression 'all the questions involved in the suit' used in Order 1 Rule 10(2) C.P.C., it is abundantly clear that the legislature clearly meant that only the controversies raised as between the parties to the litigation must be gone into, 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 plaintiffs or the defendants inter se or questions between the parties to the suit and a third party." 36. On coming to the instant case on hand, it is crystallised that during the pendency of the suit, the alleged sale deed dated 30.11.2006 is said to have been executed in favour of the applicant by the second respondent/defendant. 7. The alleged transaction itself would go to show that it is hit by the doctrine of lispendence, as contemplated under Section 52 of the Transfer of Property Act. 38. As rightly observed by the Hon'ble Apex Court, the controversy between the applicant and the second respondent/defendant cannot be adjudicated in the suit. In other words, this Court would say that the applicant is not supposed to establish her alleged right over the subject matter of the suit property at the costs of the first respondent/plaintiff in this suit. Order I Rule 10(2) of the Code of Civil Procedure does not allow a stranger to get himself impleaded as a defendant for the purpose of setting at right the controversies with the defendant(s) against whom the suit is filed by the plaintiff. 39. Order I Rule 10(2) of the Code of Civil Procedure does not allow a stranger to get himself impleaded as a defendant for the purpose of setting at right the controversies with the defendant(s) against whom the suit is filed by the plaintiff. 39. It may be emphasised here that Mr.T.K.S.Gandhi, learned counsel appearing for the applicant has argued that the applicant had purchased the property for the total sale consideration of Rs.79,20,000/- under a registered sale deed and that the execution of the sale deed was followed by the transfer of possession in respect of the property in favour of the applicant and at present the applicant had been in possession and enjoyment of the suit property and that if the applicant was not added as a party to the suit then she would be put to great loss and hardship and on the other hand the respondents viz., the plaintiff and the defendant would not be harmed in any manner. 40. As observed by this Court in the foregoing paragraphs, the averments of the application itself would go to show that the applicant was having knowledge about the suit sale agreement dated 10.06.2002 entered into between the respondents 1 and 2 viz., the plaintiff and the defendant and having been known the fact of existence of sale agreement, the applicant had not only purchased the suit property, but also the litigation. 41. The claim of the applicant has been vehemently objected to by the first respondent/plaintiff saying that he has filed the suit to enforce the contract of sale entered into between the defendant and he is not having any controversy over the applicant and not only that but he has also not sought for any relief against the applicant. 42. When the first respondent/plaintiff himself has opposed the addition of the applicant as one of the defendant in the suit, it is not permissible under Order I Rule 10(2) of the Code of Civil Procedure to allow the application permitting the applicant to implead in the suit. 43. As a rule the Court should not add a person as a defendant in a suit when the plaintiff is opposed to such addition. The reason is that the plaintiff is the dominus litis. He is the master of the suit. 43. As a rule the Court should not add a person as a defendant in a suit when the plaintiff is opposed to such addition. The reason is that the plaintiff is the dominus litis. He is the master of the suit. He cannot be compelled to fight against a person against whom he does not wish to fight and against whom he does not claim any relief. 44. In Banarsi Dass Durga Prashad vs. Panna Lal Ram Richhpal Oswal and others, reported in AIR 1969 Punjab & Haryana 57 (V56 C10), it has been held that: "The word 'may' in sub-rule (2) imports a discretion. In exercising that discretion, the Courts will invariably take into account the wishes of the plaintiff before adding a third person as a defendant to his suit. Only in exceptional cases, where the Court finds that the addition of the new defendant is absolutely necessary to enable it to adjudicate effectively and completely the matter in controversy between the parties, will it add a person as a defendant without the consent of the plaintiff." 45. In the present case on hand also, the first respondent/plaintiff does not want to fight against the applicant. He does not seek any claim against the applicant. It is also pertinent to note here that the second respondent/defendant himself has denied the execution and registration of the sale deed in favour of the applicant. When such being the case, how the applicant could be permitted to implead herself in the suit to sort out the controversy with the second respondent/defendant. If at all, she is having right or interest over the property under the alleged sale deed dated 30.11.2006, she should have agitated against the second respondent/defendant and her controversies with the second respondent/defendant cannot be sorted out at the costs of the first respondent/plaintiff. 46. In order to add an additional strength to the view of this Court, Mr.C.Ramesh, learned counsel appearing for the first respondent/plaintiff has placed reliance upon the following decisions: i. Krishnan vs. P. Palanisamy and four others, reported in 2010-3-L.W.67, and ii. Saivasamy Thevar (died) & four others vs. Rajasekaran and three others, reported in 2008-4-L.W.49. 47. Court's wide discretion to add parties cannot be exercised for mere asking. Such party must be proper and necessary one for decision in suit. Saivasamy Thevar (died) & four others vs. Rajasekaran and three others, reported in 2008-4-L.W.49. 47. Court's wide discretion to add parties cannot be exercised for mere asking. Such party must be proper and necessary one for decision in suit. In sofar as the present suit viz.C.S.No.506 of 2005 is concerned, the applicant is not a necessary or proper party for taking better decision in the suit as the real controversy is between the first respondent and the second respondent as they being the plaintiff and the defendant. 48. This Court, on meticulous analysis of the related facts and circumstances, is of considered view that the application is devoid of any merits and is liable to be dismissed. 49. Considering the averments of the affidavit filed in support of this application, this Court also finds that since the first respondent/plaintiff is the dominus litis and he objects the inclusion of the applicant in the suit, if the applicant is added as one of the defendants, the consequence of such addition would involve de novo trial. 50. In the result, the application is dismissed.