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2016 DIGILAW 142 (ORI)

Manmohan Sahu v. Ashis Kumar Mandal

2016-02-19

AKSHAYA KUMAR RATH

body2016
JUDGMENT : Akshaya Kumar Rath, J. 1. The sole question that hinges for consideration is as to whether in a suit for specific performance of contract for sale of the property, a stranger or a third party to a contract can be added as a defendant? Opposite party No. 1 as plaintiff instituted C.S. No. 628 of 2004 in the court of the learned Civil Judge (Senior Division), Balasore for specific performance of contract impleading opposite parties 2 to 10 as defendants. The present petitioner filed an application under Order 1 Rule 10 CPC for impleadment. It is stated that the suit schedule property was originally acquired by the American Baptist Foreign Mission in the year 1891 for utilisation of the same for educational, religious and social development of the members of Baptist communities of Balasore. In course of time, several educational institutions had been established by the missionaries on and around the suit land for imparting education particularly Baptist communities. In the record-of-right of the sabik settlement of the year 1927, the suit land and the other adjoining lands were recorded in the name of American Baptist Mission, which is the registered company of the U.S.A. No person has any right to alienate the land or any portion thereof or right to utilise the properties in any other purposes except the purpose for which it was created. Defendants 1 and 2 have no semblance of right, title and interest over the property. In the year 2002-03, they tried to transfer the suit land and other properties in favour of the plaintiff and others. The intervenor and three others being the representatives of the local Baptist Christians instituted T.S. No. 578/02-I in the court of the learned Civil Judge (Senior Division), Balasore for a declaration that defendants 1 and 2 have no right, title, interest and possession over the suit land and other lands covered in the said khata and for a declaration that the defendants 1 and 2 have no right to alienate or sell the land in any manner and for permanent injunction Defendants 1 and 2 entered contest in the said suit. It is further stated that he has direct interest over the suit land and unless he is impleaded, the whole Baptist communities of Balasore will sustain irreparable loss and injury. By order dated 15.12.2009, learned trial court rejected the application. It is further stated that he has direct interest over the suit land and unless he is impleaded, the whole Baptist communities of Balasore will sustain irreparable loss and injury. By order dated 15.12.2009, learned trial court rejected the application. The instant application under Article 227 of the Constitution is to lacinate the said order. 2. Heard Mr. D.P. Mohanty, learned counsel for the petitioner and Mr. Ashok Mohanty, learned Senior Advocate for the opposite party No. 2. None appeared for the opposite parties 1, 3 to 10 In spite of valid service of notice. 3. Mr. D.P. Mohanty, learned counsel for the petitioner, argued with vehemence that the intervenor is a necessary party to the suit inasmuch as he has direct interest over the suit land. He submitted that the intervenor along with three others instituted T.S. No. 578 of 2002-1 in the court of the learned Civil Judge (Senior Division), Balasore seeking declaratory reliefs in respect of the suit schedule property. Defendants 1 and 2 have no semblance of right, title and interest over the suit property. They have clandestinely executed an agreement of sale in respect of a portion of the suit property in favour of the plaintiff. The suit property belongs to Baptist community of Balasore. Thus to safeguard the interest of the Baptist Christians, the intervenor be added as a party to the suit. 4. Per contra, Mr. Ashok Mohanty, learned Senior Advocate appearing for the opposite party No. 2, supported the order passed by the court below. He submitted that the intervenor is neither a necessary party nor proper party to the suit. 5. This is not a virgin ground in so far as the question is concerned. The subject-matter of dispute is no more res integra. In Anil Kumar Singh v. Shivnath Mishra @ Gadasa Guru, (1995) 3 SCC 147 , the apex Court held that since the applicant who sought for his addition is not a party to the agreement for sale, it cannot be said that in his absence, the dispute as to specific performance cannot be decided. In paragraph 9 of the report, it is stated that: "Since the respondent is not a party to the agreement of sale, it cannot be said that without his presence the dispute as to specific performance cannot be determined. Therefore, he is not a necessary party." 6. In paragraph 9 of the report, it is stated that: "Since the respondent is not a party to the agreement of sale, it cannot be said that without his presence the dispute as to specific performance cannot be determined. Therefore, he is not a necessary party." 6. In Kasturi v. Iyyamperumal and others, AIR 2005 SC 2813 , the apex Court held that in a suit for specific performance of a contract for sale, the plaintiff cannot be forced to add as a party. He does not want to fight unless it is compulsion of the rule of law. He is a dominus litis. In a suit for specific performance of a contract for sale, the issue to be decided is the enforceability of the contract entered into between the parties and whether the plaintiff was/is ready and willing to perform his part of the contract and whether he is entitled to a decree for specific performance of a contract against the defendants. The scope of suit for specific performance of the contract for sale shall be enlarged from the suit for specific performance to a suit for title and possession which is impermissible in law. To decide the right, title and interest in the suit property of the stranger to the contract is beyond the scope of the suit for specific performance of the contract and the same cannot be turned into a regular title suit. Therefore, the third party or a stranger to the contract cannot be added so as to convert a suit of one character into a suit of different character. 7. In view of the authoritative pronouncement of the apex Court in the decisions cited supra, the inescapable conclusion is that the intervenor the present petitioner is neither necessary party nor proper party to the suit. The view taken by the learned trial court cannot be said to be perfunctory or flawed. In view of the same, the petition is dismissed. No costs.