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2018 DIGILAW 3263 (MAD)

P. Gopal v. P. Muralikrishnan

2018-09-26

M.S.RAMESH

body2018
JUDGMENT M.S. Ramesh, J. The present revision has been filed by the petitioner challenging the order passed by the learned Principal Sub-ordinate Judge, Coimbatore in I.A.No.918 of 2013 in O.S.No.248 of 2012 dated 21.01.2016. 2. Heard Mr.Siddharth, learned counsel for the petitioner and Mr.S.Gunalan, learned counsel appearing on behalf of the first respondent. 3. The learned counsel for the petitioner submitted that the petitioner, who is the plaintiff in the suit in O.S.No.248 of 2012 filed for the relief of specific performance wherein, the first respondent herein is a third party to the proceedings in the above suit. He submitted that the first respondent had filed an application in I.A.No.918 of 2013 under Order 1 Rule 1 of the Code of Civil Procedure to implead himself as a party in the above suit. According to the learned counsel for the petitioner, the first respondent had filed an earlier suit seeking for the relief of declaration and permanent injunction before the learned I Additional District Munsif, Coimbatore in O.S.No.1292 of 2007 and the petitioner/plaintiff in the present suit in O.S.No.248 of 2012 and the defendants were all parties in the earlier suit viz., O.S.No.1292 of 2007. The learned counsel further submitted that since the suit is one for specific performance and the first respondent herein is not a party to the sale agreement dated 18.05.2007, he is not entitled to be impleaded as a defendant since he is a stranger to the agreement. In support of this, the learned counsel relies upon the judgment of the Hon'ble Apex Court in the case of Bharat Karsondas Thakkar vs. Kiran Construction Co., (2008) 13 SCC 658 . The learned counsel for the petitioner submitted that the first respondent herein was not a party to the sale agreement dated 18.05.2007 which was entered into between the third defendant in the suit with the plaintiff and the fourth defendant. As such, the learned counsel submits that the trial Court had erred by allowing the impleading petition and hence, prays to set aside the order passed by the Court below. 4. The learned counsel for the first respondent on the other hand submitted that the sale deed dated 28.08.2006 through which the first respondent herein claims right over the properties is the subject matter in the earlier suit and hence, he claims to be a proper and necessary party in the present suit also. 4. The learned counsel for the first respondent on the other hand submitted that the sale deed dated 28.08.2006 through which the first respondent herein claims right over the properties is the subject matter in the earlier suit and hence, he claims to be a proper and necessary party in the present suit also. The learned counsel further submitted that since the judgment to be passed in the present suit might have an impact on his rights over the suit property, he has to be impleaded as a party to the suit and therefore, the Court below has rightly allowed the application by impleading the first respondent. 5. I have given careful consideration to the submissions made by the respective counsels. 6. Before going into the contentions of either side, the core question involved in the present revision that requires to be answered as to whether the third party to an agreement for sale, can claim right to be impleaded in the suit for specific performance. This issue came up before the Hon'ble Apex Court for consideration and while holding that the scope of consideration for specific performance cannot be converted into one for a title suit, the Hon'ble Apex Court in the case of Bharat Karsondas Thakkar vs. Kiran Construction Co., (2008) 13 SCC 658 had held that a stranger to an agreement cannot fall within the category of parties to the agreement. The relevant portion of the said order reads as follows: "28. Along with that is the other question, which very often raises its head in suits for specific performance, that is, whether a stranger to an agreement for sale can be added as a party in a suit for specific performance of an agreement for sale in view of Section 15 of the Specific Relief act, 1963. The relevant provision of Section 15 with which we are concerned is contained in clause (a) thereof and entitles any party to the contract to seek specific performance of such contract. Admittedly, the appellant herein is a third party to the agreement and does not, therefore, fall within the category of "parties to the agreement" the appellant also does not come within the ambit of Section 19 of the said Act, which provides for relief against parties and persons claiming under them by subsequent title. This aspect of the matter has been dealt with in detail in Kasturi case1. This aspect of the matter has been dealt with in detail in Kasturi case1. While holding that the scope of a suit for specific performance could not be enlarged to convert the same into a suit for title and possession, their Lordships observed that a third party or a stranger to the contract could not be added so as to convert a suit of one character into a suit of a different character." 7. In the instant case, it is not in dispute that the first respondent herein was not a party to the sale agreement based on which the suit for specific performance has been filed. Just because the first respondent herein had instituted a suit in O.S.No.1292 of 2007, wherein the parties in the present suit were made parties therein, it may not give right to him to be automatically impleaded in the present suit, particularly, when the suit is one for specific performance. It is also brought to my notice that the said suit in O.S.No.1292 of 2007 has also been dismissed for default. 8. It is also brought to my notice that the said suit in O.S.No.1292 of 2007 has also been dismissed for default. 8. Section 15 of the Specific Relief Act enables any party under a contract to seek for specific performance in terms of such contract, which reads as follows : "Who may obtain specific performance.- Except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by (a) any party thereto; (b) the representative in interest or the principal, of any party thereto: Provided that where the learning, skill solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not be assigned, his representative in interest or his principal shall not be entitled to specific performance of the contract, unless such party has already performed his part of the contract, or the performance thereof by his representative in interest, or his principal, has been accepted by the other party; (c) where the contract is a settlement on marriage, or a compromise of doubtful rights between members of the same family, any person beneficially entitled thereunder; (d) where the contract has been entered into by a tenant for life in due exercise of a power, the remainderman; (e) a reversioner in possession, where the agreement is a covenant entered into with his predecessor in title and the reversioner is entitled to the benefit of such covenant; (f) a reversioner in remainder, where the agreement is such a covenant, and the reversioner is entitled to the benefit thereof and will sustain material injury by reason of its breach; (g) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation; (h) when the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company, and such contract is warranted by the terms of the incorporation, the company: Provided that the company has accepted the contract and has communicated such acceptance to the other party to the contract." 9. When the first respondent herein is a third party and not a party to the sale agreement, it goes without saying that he cannot be termed as a party to the agreement to can claim a relief under Section 15 of the Specific Relief Act. When the first respondent herein is a third party and not a party to the sale agreement, it goes without saying that he cannot be termed as a party to the agreement to can claim a relief under Section 15 of the Specific Relief Act. As observed by the Hon'ble Apex Court, impleading a third party in a suit for specific performance would effectively convert such a suit into one of a title suit which is not permissible. As such, the Court below ought not to have allowed the first respondent's application seeking for impleading himself as a party defendant in view of the aforesaid proposition. 10. In the light of the above observations, I am of the view that the petitioner is entitled to succeed. Consequently, the order dated 21.10.2016 passed by the learned Principal Subordinate Judge, Coimbatore in I.A.No.918 of 2013 is set aside. 11. Accordingly, the Civil Revision Petition stands allowed. Consequently, connected Miscellaneous Petition is closed. No costs.