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Rajasthan High Court · body

2015 DIGILAW 929 (RAJ)

Kuldeep Singh Rathor v. Jalam Singh

2015-04-24

J.K.RANKA

body2015
JUDGMENT : 1. Instant writ petition is directed against order dt.25/02/2015 whereby the Court of Additional District Judge No.3, Beawar has rejected the application of the petitioners under Order 1 Rule 10 read with Section 151 CPC for impleading them as parties-respondents in the Suit No.21/2012, titled as Jalam Singh & ors. Vs. Moti & ors. 2. Ld. counsel for the petitioners submitted that the trial court committed a grave error in rejecting the application of the petitioners. The petitioners were necessary and proper parties and ought to be impleaded as defendants in the suit. He contended that the suit for specific performance is a product of conspiracy between the plaintiffs-respondents and the defendants-respondents and the suit property vests in the petitioners by virtue of registered sale deed dt.19/09/2014 executed by the defendants-respondents in furtherance of agreement dt.07/10/2009. Thus, according to the ld. counsel, the petitioners, being owners of the suit property, were necessary and proper parties and without their presence, the controversy in the suit could not have been resolved. In support of his submission, counsel relied upon the judgments rendered in the case of Amit Kumar Shaw & Anr. Vs. Farida Khatoon and Anr.: AIR 2005 (SC) 2209 ; Thomson Press (India) Ltd. V. Nanak Builders and Investors P. Ltd. And Ors.: AIR 2013 (SC) 2389 and A. Nawab John & Ors. V. V.N. Subramaniyam: 2012 DNJ (SC) 720. 3. Per-Contra, ld. counsel for the respondents, supporting the impugned order, contended that the suit for specific performance cannot be converted into a title suit and the petitioners were neither necessary nor proper parties in the suit. They further submitted that the petitioners were fully aware of the suit proceedings right from the inception and participating in the suit as power of attorney holders of defendants No. 6 to 8 and the application was highly belated. In support of contention, counsel for the respondents relied upon the judgments rendered in the case of Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil: 2010(8) SCC 329 ; Ambeshwar Grih Nirman Sahakari Samiti Ltd. Vs. Babu lal & ors.: 2012(4) RLW 2984; Chittar Lal and ors. Vs. Additional District and Sessions Judge and ors.: 2012 (2) WLN 559; Narendra Kumar & ors. Vs. Addl. District Judge (Fast Track) No.7 & ors.: 2013 (3) CDR 1186 (Raj.); Bibi Zubaida Khatoon Vs. Rajendra Shankar Patil: 2010(8) SCC 329 ; Ambeshwar Grih Nirman Sahakari Samiti Ltd. Vs. Babu lal & ors.: 2012(4) RLW 2984; Chittar Lal and ors. Vs. Additional District and Sessions Judge and ors.: 2012 (2) WLN 559; Narendra Kumar & ors. Vs. Addl. District Judge (Fast Track) No.7 & ors.: 2013 (3) CDR 1186 (Raj.); Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb and Anr.: 2004 AIR (SC) 173 and Arun Kr. Jain Vs. Smt. Chhoti Devi, SB Civil Writ petition No.9247/2014, decided on 26/11/2014 by the coordinate Bench of this Court at Jaipur. 4. Heard counsel for the parties and carefully perused the material available on record. 5. The question that falls for determination is whether the petitioners are entitled to be impleaded as partiesdefendants in the suit No.21/2012 on the ground that during pendency of the suit, they had purchased the property from defendants No.6 to 8 on 19/09/2014. 6. Order 1 Rule 10(2) CPC empowers the court to delete or add parties to a suit 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, whether as plaintiff or defendant or whose presence before the Court may be necessary in order to enable the Court to effectively or completely adjudicate upon and settle all the questions involved in the suit. 7. In the case of Ramesh Hirachand Kundanmal V. Municipal Corporation of Greater Bombay: (1992) 2 SCC 524 , the Hon'ble Apex Court interpreted the aforesaid provision and held: “Sub-rule (2) of Rule 10 gives a wide discretion to the Court to meet every case of defect of parties and is not affected by the inaction of the Plaintiff to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touchstone of Order 1 Rule 10 which provides that only a necessary or a proper party may be added. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. The addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case.” 8. In Anil Kumar Singh V. Shivnath Mishra: (1995) 3 SCC 147 , the Hon'ble Apex Court interpreted the Order 1 Rule 10(2) in the following manner:- “By operation of the above-quoted rule though the court may have power to strike out the name of a party improperly joined or add a party either on application or without application of either party, but the condition precedent is that the court must be satisfied that the presence of the party to be added, would be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit. To bring a person as party-defendant is not a substantive right but one of procedure and the court has discretion in its proper exercise. The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject-matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid multiplicity of proceedings” 9. In the case of Mumbai International Airport (P) Ltd. V. Regency Convention Centre and Hotels (P) Ltd.: (2010) 7 SCC 417 , the Hon'ble Apex Court considered the scope of Order 1 Rule 10 (2) CPC and observed: “The general rule in regard to impleadment of parties is that the Plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure ('the Code', for short), which provides for impleadment of proper or necessary parties. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure ('the Code', for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below: 10. (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. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: ( a ) any person who ought to have been joined as plaintiff or defendant, but not added; or ( b ) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party. A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. A "proper party" is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. A "proper party" is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the Plaintiff. The fact that a person is likely to secure aright/interest in a suit property, after the suit is decided against the Plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance. Let us consider the scope and ambit of Order 1 Rule 10(2) Code of Civil Procedure regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a Plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice” 10. In the case of Kasturi V. Iyyamperumal : (2005) 6 SCC 733 , the Hon'ble Apex Court considered the question whether a person who sets up independent title and claims possession of the suit property is entitled to be impleaded as party to a suit for specific performance of contract entered into between the Plaintiff and the Defendant. In that case, the trial Court allowed the application for impleadment on the ground that respondent Nos. In that case, the trial Court allowed the application for impleadment on the ground that respondent Nos. 1 and 4 to 11 were claiming title and possession of the contracted property and, therefore, they will be deemed to have direct interest in the subject matter of the suit. The High Court dismissed the revision filed by the appellant and confirmed the order of the trial Court. While allowing the appeal and setting aside the orders of the trial Court and the High Court, the Hon'ble Apex Court referred to Order 1 Rule 10(2) Code of Civil Procedure and observed: “In our view, a bare reading of this provision, namely, second part of Order 1 Rule 10 Subrule (2) Code of Civil Procedure 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. From the above, it is now clear that 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. 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. 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. Lord Chancellor Cottenham in Tasker v. Small made the following observations: It is not disputed that, generally, to a bill for a specific performance of a contract of sale, the parties to the contract only are the proper parties; and, when the ground of the jurisdiction of Courts of Equity in suits of that kind is considered it could not properly be otherwise. The Court assumes jurisdiction in such cases, because a court of law, giving damages only for the non-performance of the contract, in many cases does not afford an adequate remedy. But, in equity, as well as at law, the contract constitutes the right, and regulates the liabilities of the parties; and the object of both proceedings is to place the party complaining as nearly as possible in the same situation as the defendant had agreed that he should be placed in. It is obvious that persons, strangers to the contract, and, therefore, neither entitled to the right, nor subject to the liabilities which arise out of it, are as much strangers to a proceeding to enforce the execution of it as they are to a proceeding to recover damages for the breach of it. The aforesaid decision in Tasker was noted with approval in De Hoghton V. Mone. The aforesaid decision in Tasker was noted with approval in De Hoghton V. Mone. Turner, L.J. Observed: Here again this case is met by Tasker in which case it was distinctly laid down that a purchaser cannot, before his contract is carried into effect, enforce against strangers to the contract equities attaching to the property, a rule which, as it seems to me, is well founded in principle, for if it were otherwise, this Court might be called upon to adjudicate upon questions which might never arise, as it might appear that the contract either ought not to be, or could not be performed.” 11. In the case of Vidur Impex and Traders Pvt. Ltd. And others Vs. Tosh Apartments Pvt. Ltd. and others (2012) 8 SCC 384 , the Hon'ble Apex Court laid down the broad principles governing the impleadment of a party in a suit and held as under:- “41.1 The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as Plaintiff or Defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit. 41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court. 41.3. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made. 41.4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the Plaintiff. 41.5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 41.6. 41.5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment.” 12. In the light of the legal principles enshrined in the above precedents, if the facts of the instant case are scrutinized, it transpires that the trial court did not commit any error in dismissing the petitioners' application for impleadment as parties to the Suit No.21/2012, titled as Jalam Singh & ors. Vs. Moti & ors.. The petitioners are neither necessary nor proper parties to such suit. The petitioners are strangers to the agreement for which suit for specific performance has been filed by the plaintiffs-respondents. Ordinarily, in a suit for specific performance, title is not germane for the resolution of the dispute involved therein. The scope of the suit is to decide the enforceability of the contract entered into between the parties to the contract. It has transpired that the petitioners were aware of the institution of the suit from inception. In fact, the petitioners were participating in the suit as power of attorneys of defendants- Mohan, Khima & Smt. Kamali. The petitioners allege execution of the agreement dt.07/10/2009 in their favour and the application for impleadment is filed on 13/02/2015 after a lapse of more than six years which cannot be termed as reasonable and moreso, when they had knowledge of the pending litigation. Thus, in the facts and circumstances, their presence was not required so as to enable the court to completely, effectively and properly adjudicate upon the matters and issues involved in the suit. They cannot derive better rights than defendants No. 6 to 8 from which they alleged to have purchased the suit property and as such, this Court is of the opinion that the trial court was correct in concluding that the petitioners were neither necessary nor proper parties in the suit and rightly rejected their application for impleadment. 13. They cannot derive better rights than defendants No. 6 to 8 from which they alleged to have purchased the suit property and as such, this Court is of the opinion that the trial court was correct in concluding that the petitioners were neither necessary nor proper parties in the suit and rightly rejected their application for impleadment. 13. Resultantly, the instant petition, being devoid of merit, is dismissed. No order as to costs.