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2015 DIGILAW 563 (DEL)

R. P. Sharma v. O. K. Kaushik

2015-02-24

HIMA KOHLI

body2015
JUDGMENT : IA No. 6610/2014(by the intervenors u/O I R 10 CPC) Hima Kohli, J.:- 1. The present application has been filed by three intervenors (two sons and one daughter of the defendant) praying inter alia for permission to be impleaded in the suit proceedings. 2. The plaintiff has instituted the present suit against the defendant (father of the applicants) praying inter alia for a decree of specific performance in respect of premises bearing No. A-9, 2nd Floor, with roof rights, CC Colony, Rana Pratap Bagh, Delhi. In the alternate, the plaintiff has sought a decree for a sum of Rs.28,00,000 against the defendant. 3. It has been averred in the application that the suit property was owned by Lt.Sh.Ram Kumar, grandfather of the applicants and the same is his self-acquired property. Upon Sh. Ram Kumar dying intestate, the suit property was inherited by the defendant and his siblings. It is further averred in para 4 of the application that the suit property was partitioned amongst the legal heirs of Lt.Sh.Ram Kumar, including the defendant herein by virtue of a Partition Decree dated 19.2.2002, passed in Suit No. 182/95, entitled Smt. Om Prabha & Anr. v. Smt. Savitri Devi & anr., whereafter, the second floor of the suit property came in the hands of the defendant, being his 1/4th share. 4. The applicants claim that they have a share in the suit property and the defendant has attempted to sell the same with malafide intentions. Aggrieved by this action, the applicant No. 1 had filed a suit for permanent injunction against the defendant which was pending adjudication before the Rohini Courts, Delhi. However, the defendant No. 1 had withdrawn the aforesaid suit in the year 2013. Now, the applicants seek impleadment in the present suit on the ground that they are necessary and proper parties as they too have inherited a share in the second floor of the suit property, which is the subject matter of the present suit. 5. Counsel for the defendant opposes the present application and submits that it is the case of the applicants themselves that the suit property was a self-acquired property of their grandfather, Lt. Sh.Ram Kumar and upon his demise, the defendant had acquired 1/4th share therein as one of his legal heirs. 5. Counsel for the defendant opposes the present application and submits that it is the case of the applicants themselves that the suit property was a self-acquired property of their grandfather, Lt. Sh.Ram Kumar and upon his demise, the defendant had acquired 1/4th share therein as one of his legal heirs. In such circumstances, the defendant had inherited his 1/4th share on per capita basis under Section 19 of the Hindu Succession Act and he is entitled in law to dispose of the said share in his individual capacity. 6. The law on the question as to whether in a suit for specific performance of a contract for sale of a property instituted by a purchaser against the vendor, a third party to the contract claiming to have an interest over the contracted property is entitled to be arrayed as a defendant in the suit, is well settled. As held in the case of Kasturi v. Iyyamperumal and others, reported as AIR 2005 SC 2813 the twin tests that must be satisfied for determining the question as to who is a necessary party in a suit for specific performance are that firstly, there must be a right to some relief against such a party in respect of the controversies involved in the proceedings and secondly, that no effective decree can be passed in the absence of such a party. 7. In the aforecited case, the Supreme Court had carefully considered the provisions of Section 19 of the Specific Relief Act and opined that the guiding principle is that the presence of a party is absolutely necessary to adjudicate the controversies involved in a suit for specific performance of a contract for sale, as, the only question that is required to be adjudicated in such a suit is the enforceability of the contract entered into between the contracting parties. An applicant whose interest is adverse to the defendant ought not to be impleaded in a suit for specific performance for the reason that if a person seeking addition is added in such a suit, it is natural that the scope of the said suit would be enlarged far beyond the relief sought by a contracting party. 8. An applicant whose interest is adverse to the defendant ought not to be impleaded in a suit for specific performance for the reason that if a person seeking addition is added in such a suit, it is natural that the scope of the said suit would be enlarged far beyond the relief sought by a contracting party. 8. As per the case set up by the applicants herein, they do not seek addition in the suit on the strength of a contract in respect of which the present suit for specific performance for the contract of sale has been instituted by the plaintiff. Instead, they base their claim on their independent interest as successors-in-title of the suit property. In the event, the applicants are impleaded in the present suit, it is natural that the scope of the suit will expand from a suit for specific performance, to a suit for partition and possession, which is impermissible in law. Therefore, permission cannot be granted to the applicants for being impleaded in the suit as it would entirely change the character of the suit. 9. Apart from the above, on a plain reading of the expression used in sub-rule (2) of Order I Rule 10 of the CPC which refers to “all the questions involved in the suit”, it is crystal clear that the controversies that are to be gone into in this suit are those that are raised between the parties in litigation and not those controversies that may arise between the applicants and the defendants. As a result, the question of impleading the applicants in this suit as successors-in-interest of Lt. Ram Kumar or entertaining their claim on the ground that the suit property is ancestral in nature, does not arise. Any permission granted to the applicants for impleadment would only lead to a complicated litigation, far beyond the scope of the suit instituted by the plaintiff. 10. The present application is accordingly dismissed with costs of 5,000, as it is clearly misconceived. The applicants are neither necessary, nor proper parties in a suit for specific performance instituted by the plaintiff. Their remedies against the defendant, if any, lie elsewhere, but certainly not in the present proceedings.