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2013 DIGILAW 989 (MAD)

P. Mahalingam v. V. Sagayarani

2013-02-18

M.VENUGOPAL

body2013
JUDGMENT 1. The Petitioner/Plaintiff has filed the present Civil Revision Petition as against the order dated 23.08.2011 in I.A.No.293 of 2010 in O.S.No.95 of 2010 dated 23.08.2011 passed by the Learned Principal Subordinate Judge, Cuddalore. 2. The Learned Principal Subordinate Judge, Cuddalore, while passing the order in I.A.No.293 of 2010 in O.S.No.95 of 2010 on 23.08.2011, has categorically observed that 'The 5th respondent in the objection raised has not claimed any right over the property. The main objection of the 5th respondent is that he is a necessary party to the suit. Since the suit is one for specific performance and the proposed 5th respondent is a third party who is not claiming any right has come to the conclusion that the petitioner (plaintiff) is not entitled to the relief sought for' and consequently, dismissed the application. 3. The Learned Counsel for the Petitioner/Plaintiff submits that the trial Court has failed to note that the 5th Respondent is a necessary party to the suit, especially to settle all the questions involved in the main suit for specific performance in O.S.No.95 of 2010 and for a complete and comprehensive adjudication in regard to the controversies in full, the 5th Respondent/Proposed Party is a proper and necessary party to the suit. 4. Lastly, it is the plea taken on behalf of the Petitioner/Plaintiff that the 1st Respondent/1st Defendant has created some interest over the property in favour of the 5th Respondent (Proposed Party) and as such, the 5th Respondent is a necessary and proper party for adjudication of controversies involved in the main suit in O.S.No.95 of 2010 on the file of the trial Court. Unfortunately, this vital aspect of the matter has not been borne in mind by the trial Court, which has resulted in an erroneous order being passed in I.A.No.293 of 2010 in O.S.No.95 of 2010 much to the detriment of the Revision Petitioner/Plaintiff. 5. It is not in dispute that the Petitioner/Plaintiff has filed the main suit O.S.No.95 of 2010 against the 1st Respondent/1st Defendant and 3 others, who are arrayed as D.2 to D.4 seeking the relief of specific performance of sale agreement dated 04.02.2008 directing the 1st Respondent to receive the balance of sale consideration of Rs.50,000/-and execute the sale deed in favour of the Plaintiff etc. Also, a relief of permanent injunction has been sought for by the Revision Petitioner/Plaintiff against the 1st Respondent/1st Defendant, her men, heirs and agents from alienating the suit property to anybody else in any manner and from registering the same with the 2nd Defendant. 6. The Learned Counsel for the 1st Respondent/ 1st Defendant submits that the sale agreement, which the Petitioner/Plaintiff relies upon is a piece of rank forgery and that she never entered into any agreement with the Revision Petitioner/Plaintiff on 04.02.2008 or on any other date etc. 7. In the affidavit in I.A.No.293 of 2010 in O.S.No.95 of 2010, the Revision Petitioner/Plaintiff has sought permission of the trial Court to implead the 5th Respondent/Proposed Party viz., Gopalakrishnan as 5th Defendant in the suit because of the fact that he is an unlawful possession of the suit property without any right and further based upon the unregistered document, he is wrongly claiming right over the suit property and also contacted him in person and threatened to withdraw the suit. 8. Interestingly, the 1st Respondent/ 1st Defendant, though filed written statement in the main suit, has not filed any counter to I.A.No.293 of 2010 (in Impleading Petition) before the trial Court. Only the 5th Respondent/Proposed Party [Proposed 5th Defendant] has filed his objections before the trial Court, inter alia, stating that he is neither a necessary party nor a proper party to the suit. Further, he has stated that Section 19 of the Specific Relief Act, specifically mentions the parties alone can be sued and further, the Revision Petitioner/Plaintiff has made out a case to implead him as a party to the suit. 9. A scrutiny of the petition in I.A.No.293 of 2010 in O.S.No.95 of 2010 shows that the Revision Petitioner/Plaintiff has filed the same under Order 1 Rule 10 of Civil Procedure Code. At this stage, this Court relevantly points out that Order 1 Rule 10 (2) speaks of the addition of (a) necessary parties and (b) of proper parties. In Law, necessary parties are those 'who ought to have been joined', that is, parties necessary to the filing of the very suit, without whom a Court of Law cannot pass a decree at all. In Law, necessary parties are those 'who ought to have been joined', that is, parties necessary to the filing of the very suit, without whom a Court of Law cannot pass a decree at all. In order that a litigant may be considered as a necessary party defendant, two essential features are to be satisfied; first there must be a right to some relief against him/her in respect of the subject matter involved in the suit. In short, a necessary party is one without whom no effective decree can be passed by a Court of Law. On the other hand, a proper party is one in whose absence, an effective order can be passed, but whose presence is necessary for a complete and final decision on the question involved in the proceeding. Failure to implead a necessary/proper party to the suit/other proceedings may be fatal. 10. In a case of suit for specific performance agreement, the second agreement holder or subsequent agreement holder is not a necessary party to the main suit where the Plaintiff has sought the relief of specific performance against the Defendant [the 1st person/vendor who has agreed to sell the property to the Petitioner/Plaintiff. As per the ingredients of Section 19 of the Specific Performance Act, 1963, this Court is of the categorical view that only parties to the particular contract can sue or be sued. A third person not a party to the original contract, nor deriving any obligation or right out of the said contract is not a proper party. Further, even in a case if a third party pleads sale agreement in his/her favour by the Defendant is not to be impleaded in a suit for specific performance as per decision in Lakhasingh V. Gurdarshan Singh, 1999 AIHC 2605 at page 2606 (P & H) 11. Admittedly, the 5th Respondent/Proposed Party is not a party/ privy to the sale agreement dated 04.02.2008 the Petitioner/Plaintiff in part of the Plaint has clearly averred that the 1st Respondent/ 1st Defendant offer to sell the property to him and further he accepted the offer and entered into sale agreement with her on 04.02.2008 for agreed sale price of Rs.6,00,000/-and also that the 1st Respondent/ 1st Defendant has received a sum of Rs.5,50,000/-etc. Therefore, it is patently and candidly clear that the contract in respect of sale agreement dated 04.02.2008 is only between the Revision Petitioner/ Plaintiff and the 1st Respondent/1st Defendant. Nowhere, the 5th Respondent/Proposed Party comes into picture in respect of the sale agreement dated 04.02.2008, which is a subject matter of dispute between the Revision Petitioner/Plaintiff and the other Defendants in the suit. 12. Be that as it may, in view of the fact that the impleading of a party under Order 1 Rule 10 of Civil Procedure Code is not a matter of law but only a matter of fact and taking note of the fact that the 5th Respondent/Proposed Party is not a necessary Defendant to decide the controversies in O.S.No.95 of 2010 on the file of the trial Court between the parties concerned, this Court comes to an inevitable conclusion that the 5th Respondent is neither a necessary nor a party and even in his absence, this Court opines that the suit can be proceeded with and the issues involved between the parties can be decided by the trial Court in a complete and comprehensive way and even without his presence, the issues can be decided one way or other. Viewed in that perspective, the Civil Revision Petition fails. 13. In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. Consequently, connected Miscellaneous Petition is closed.