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2016 DIGILAW 148 (ORI)

Prafullata Mohapatra v. Bijaya Ram Dash

2016-02-22

A.K.RATH

body2016
JUDGMENT Dr. A.K.RATH, J. - Challenging, inter alia, the order dated 22.9.2008 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in T.S. No.442 of 1994, the present application has been filed under Article 227 of the Constitution of India. By the said order, learned trial Court allowed the application filed by the opposite party no.1 under Order 1 Rule 10 CPC for impleadment. 2. This case has a chequered history. The petitioner as plaintiff instituted T.S. No.442 of 1994 in the Court of the learned Civil Judge (Senior Division), 1st Court, Cuttack for specific performance of contract impleading opposite party no.2 as defendant. The suit was dismissed. Thereafter, she filed RFA No.58 of 2003 in the Court of the learned District Judge, Cuttack. Learned District Judge reversed the judgment and decree of the learned trial Court and allowed the appeal. Thereafter, the defendant filed RSA No.183 of 2004 before this Court. On 16.5.2007, the same was dismissed. Thereafter, the petitioner deposited the balance consideration amount with cost of the stamp paper for execution of the registered sale deed in her favour. At this juncture, opposite party no.1 filed an application under Order 1 Rule 10 CPC to implead him as a party. It is stated that he has purchased the land measuring an area of Ac.0.40 dec. out of sabik plot no.2709, khata no.209 corresponding to Hal Plot No.149, khata No.514, which corresponds to mutation khata no.527/333, plot No.149/1728 by means of registered sale deed dated 19.7.2006 from the defendant for a consideration of Rs.1,20,000/-. After purchase, he constructed a residential house over the same. It is further stated that as the defendant was in need of money, he entered into an agreement with him on 1.10.1990 for sale of the said land for an amount of Rs.50,000/-. Defendant received an amount of Rs.10,000/- as advance and delivered the possession to him. In order to get more money at the instruction of the plaintiff and her husband, defendant subsequently executed another agreement on 22.12.1992 for sale of the land, which includes the land purchased by him. During pendency of the suit, defendant executed sale deed in his favour. Therefore, he has direct interest over the suit property and is a necessary party. The plaintiff filed an objection to the same contending that the intervenor is neither necessary nor proper party to the suit. During pendency of the suit, defendant executed sale deed in his favour. Therefore, he has direct interest over the suit property and is a necessary party. The plaintiff filed an objection to the same contending that the intervenor is neither necessary nor proper party to the suit. The intervenor claims to have purchased the property during pendency of the second appeal from the judgment-debtor. The appeal was dismissed on 16.5.2007. After dismissal of the appeal, the judgment-debtor filed two petitions under the Specific Relief Act in the trial Court as well as learned District Judge on the plea that the decree-holder has not complied with the terms of the decree for specific performance. The petitions had been rejected by the learned trial Court as well as learned District Judge. Thereafter, he filed two petitions before this Court, which had also been dismissed with an observation that the action of the judgment-debtor lacks bona fide and it is only to delay the matter of execution and registration of the sale deed. The alleged transfer is hit by the principle of lis pendens. Further, during pendency of the second appeal, the intervenor filed C.S. No.25 of 2007 in the Court of the learned Civil Judge (Senior Division), 1st Court, Cuttack against him for permanent injunction. The suit was dismissed for non-prosecution. He had also filed C.S No.416 of 2008 in the same Court for declaration of his right, title, interest and confirmation of possession. Learned trial Court allowed the application and impleaded the intervenor as a party to avoid multiplicity of litigation in future. 3. Mr. Pattnaik, learned counsel for the petitioner, submits that the intervenor is neither necessary nor proper party to the suit. Thus the learned trial Court has committed manifest illegality in allowing the application under Order 1 Rule 10 CPC. 4. Per contra Mr. Soumya Mishra, learned counsel on behalf of Mr. S.P. Mishra, learned Senior Advocate for the opposite party no.1, supports the order passed by the learned trial Court. He submits that the intervenor is necessary party to the suit. He has direct interest over the subject-matter of dispute inasmuch as opposite party no.1 has purchased the land by means of registered sale deed dated 19.7.2006 for a valid consideration and thereafter delivered possession. Further, the intervenor has constructed a residential house over the same. He submits that the intervenor is necessary party to the suit. He has direct interest over the subject-matter of dispute inasmuch as opposite party no.1 has purchased the land by means of registered sale deed dated 19.7.2006 for a valid consideration and thereafter delivered possession. Further, the intervenor has constructed a residential house over the same. In order to avoid multiplicity of proceeding, learned trial Court has rightly allowed the application. 5. The only question that arises for consideration is as to whether in a suit for specific performance of contract for sale of property, a stranger or a third party to the contract can be added as a defendant in the suit ? 6. An identical matter came up for consideration before this Court in the case of Atish Chandra Sinha and another v. Smt. Manjushree Dash and another (WP(C) No.11613 of 2004 disposed of on 27.1.2016). This Court held: “6. 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.” 7. 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 litus. 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. 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. 8. In view of the authoritative pronouncement of the apex Court in the decisions cited supra, the irresistible conclusion is that the 5 intervenor is neither necessary nor proper party to the suit. Learned trial Court fell into patent error in allowing the application.” 7. In view of the same, the impugned order dated 22.9.2008 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in T.S. No.442 of 1994 is quashed. The petition is allowed. No costs. Petition allowed.