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2016 DIGILAW 69 (ORI)

Atish Chandra Sinha v. Manjushree Dash

2016-01-27

A.K.RATH

body2016
JUDGMENT : A.K. Rath, J. Challenging, inter alia, the order dated 17.9.2004 passed by the learned Additional Civil Judge (Sr. Divn.), Puri in T.S. No.46 of 1993-I allowing the application filed by the intervenor under Order 1 Rule 10 C.P.C., the petitioners have filed this application under Article 227 of the Constitution of India. 2. The opposite party no.1 as plaintiff instituted T.S. No.46 of 1993 in the court of the learned Additional Civil Judge (Sr. Divn.), Puri for specific performance of contract impleading the petitioners as defendants. During pendency of the suit, the opposite party no.2 filed an application under Order 1 Rule 10 C.P.C. for impleadment. It is stated that the plaintiff has filed the suit in respect of the area Ac.0.046 dec. appertaining to Plot No.475 and 473/1360 under Khata No.6 in mouza-Balukhanda Khas Mahal. He is in possession of the suit property with house standing thereon as a tenant. On 26.11.1967, he has paid an amount of Rs.5,001/-to the defendants. Pursuant to the instruction of the defendants, the Tahasildar had executed an agreement in his favour acknowledging the receipt of money. It is further stated that as per the agreement, it was agreed upon between the parties that in the event the petitioner or any of his nominee would purchase the suit property, an amount of Rs.5,001/-is to be adjusted towards consideration. According to him, his presence is necessary for effectual adjudication of the lis. The defendants filed objection challenging the maintainability of the petition. It is stated that the intervenor is the third party and has no locus standi to file the application. Further the petitioner is the husband of the plaintiff and residing in the house jointly. He has filed a separate suit against the defendants. The petitioner is neither necessary nor proper party to the suit. 3. Learned trial court came to hold that the petitioner claims that he is in possession of the suit land. The petitioner being the husband of the plaintiff is necessary party to the suit and no prejudice will be caused to the defendants if he is added as a party. Held so, learned trial court allowed the application on 17.9.2004. 4. Heard Mr. B. Senapati, learned counsel for the petitioners. None appears for the opposite parties. 5. The petitioner being the husband of the plaintiff is necessary party to the suit and no prejudice will be caused to the defendants if he is added as a party. Held so, learned trial court allowed the application on 17.9.2004. 4. Heard Mr. B. Senapati, learned counsel for the petitioners. None appears for the opposite parties. 5. The sole question that hinges for consideration is as to whether in a suit for specific performance of a contract for sale of property a stranger or a third party to the contract can be added as defendant in the suit. The subject matter of dispute is no more res integra. 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. 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. 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 intervenor is neither necessary nor proper party to the suit. Learned trial court fell into patent error in allowing the application. 9. Accordingly, the order dated 17.9.2004 passed by the learned Additional Civil Judge (Sr. Divn.), Puri in T.S. No.46 of 1993-I is quashed. The petition is allowed.