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2018 DIGILAW 3492 (MAD)

R. Ravi v. V. Bose

2018-10-04

P.T.ASHA

body2018
JUDGMENT P.T. Asha, J. This Civil Revision Petition is filed challenging the order passed by the learned II Assistant Judge, City Civil Court, Chennai in I.A.No.16700 of 2011 in O.S.No.14644 of 2010, allowing an application seeking to implead the revision petitioners as proposed defendants 5 and 6 in the suit. 2. The facts, in brief, are as follows: The property which is the subject matter of the suit in O.S.No.14644 of 2010 was originally a vacant site, in respect of which, the revision petitioners' father one Rajappan had entered into an agreement on 25.09.1958 with the original owner, the second respondent herein. It is seen that there was a suit in O.S.No.7704 of 1977 filed by the said Rajappan against the second respondent herein, for permanent injunction and the said suit was decreed by judgment dated 27.12.1979. This decree was taken up on appeal to the file of the learned VII Additional Judge, City Civil Court, Chennai in A.S. No. 81 of 1981. The said Appeal Suit was compromised in the following manner:- "MEMO OF COMPROMISE FILED BY BOTH PARTIES- The appellant and respondent in the above appeal have agreed to settle their disputes amicably in the following terms. 1. The respondent/plaintiff has agreed to pay totally a sum of Rs. 5,000/- (Rupees five thousands only) to the respondent apart from the payments already made and the same shall be paid in two equal instalments, the first being on or before the end of February 1982 and the second and final instalment payments will be on or before the 30th day of June 1982. 2. After such full payment of Rs. 5,000/- (Rupees five thousand only) the appellant/defendant shall execute the sale deed relating to suit property described hereunder the register the same at the expenses of the respondent/plaintiff failing which the respondent/plaintiff shall have the right to specifically enforce the contract. 3. Both parties shall bear their own costs in this appeal. Both parties pay that this Hon'ble Court may be pleased to pass orders in terms of Memo of Compromise." 3. A Judgment and Decree recording this memo of compromise came to be passed on 13.11.1981. It is seen that in the interregnum period, the said Rajappan had put up constructions on the above property. Both parties pay that this Hon'ble Court may be pleased to pass orders in terms of Memo of Compromise." 3. A Judgment and Decree recording this memo of compromise came to be passed on 13.11.1981. It is seen that in the interregnum period, the said Rajappan had put up constructions on the above property. The said Rajappan died and thereafter, the second respondent, through his Power Agent, the fifth respondent herein had filed a suit in O.S.NO.4109 of 2000 on the file of the learned XI Assistant Judge, City Civil Court, Chennai, against the revision petitioners for recovery of possession and permanent injunction restraining the revision petitioners from interfering with his peaceful possession and enjoyment of the suit property. By judgement and decree dated 21.06.2011, the learned XI Assistant Judge, City Civil Court, Chennai has dismissed the said suit. The learned Judge has clearly held that the revision petitioners herein and their predecessors in title have been in possession and enjoyment of the suit property for a very long time. It appears that pending the suit, the revision petitioners herein had entered into a sale deed with the respondents 2 to 4 herein on 29.10.2010. 4. In the mean while, the first respondent herein had filed a suit in O.S.No.14644 of 2010 for specific performance of an agreement dated 28.09.2006 executed by the fifth respondent herein as the Power Agent of respondents 2 to 4 herein. The said suit was laid with reference to the house and building constructed upon the land. The respondents 2 to 4 herein had filed written statement in which, they had stated that they sold the property to the revision petitioners herein and that they are in possession of the same. They have stated that these revision petitioners are necessary parties to the proceedings. 5. Thereafter, the first respondent/plaintiff has taken out an Interlocutory Application in I.A.No.16700 of 2011 in O.S.No.14644 of 2010 to implead the revision petitioners as defendants 5 and 6 in the said suit. Reasons for seeking to implead them have been narrated in paragraphs 6,7 and 10 of the affidavit filed in support of the impugned Interlocutory Application, which for reasons of brevity are not extracted herein. 6. Reasons for seeking to implead them have been narrated in paragraphs 6,7 and 10 of the affidavit filed in support of the impugned Interlocutory Application, which for reasons of brevity are not extracted herein. 6. The revision petitioners had resisted the above application by stating that in the suit for specific performance, they are not necessary parties as they are not transferees for value subsequent to the contract entered into between the first respondent and the respondents 2 to 4 herein through their Power Agent, the fifth respondent. On the contrary, the revision petitioners were claiming right under an agreement entered into by their father with the respondents 2 to 4 as early as in the year 1958 and therefore, by no stretch of imagination, it can be held that they are necessary parties in the suit for specific performance which was filed against the original owners by a subsequent agreement holder. 7. Heard Mr.Kannan, learned counsel for the petitioners; Mr.K.Lavan, learned counsel for the first respondents and Mr. A.KU. Valayapathe, learned counsel for the respondents 2 to 4. There is no representation for the fifth respondent. 8. The learned counsel for the first respondent would bring to the notice of the Court, the following judgments of this Court:- "(i) P.Bakkiammal and 12 others v. R.Ramalakshmi and 40 others, (2007) 3 LW 14 and (ii) Ashok Kumar v. K.Sabarinathan & others, (2008) 2 LW 185 ." 9. The learned counsel for the first respondent has put forward his arguments that as per the law laid down in P.Bakkiammal and 12 others v. R.Ramalakshmi and 40 others (cited supra), when a party is having substantial interest, he can be impleaded as party and when alienations have been made before filing of the suit, they can be impleaded. 10. The other judgment relied on by the learned counsel for the first respondent is the one reported in Ashok Kumar v. K.Sabarinathan & others (cited supra) wherein, it was stated that a necessary party is one, without whom, no order can be effectively made and an appropriate party is one, who is necessary for final decision of the question involved in the proceeding and addition of parties would be depend upon the facts and circumstances of the case coupled with the relief sought for in the case. The learned counsel would therefore argue that considering the fact that the proposed parties/revision petitioners have entered into an agreement with the Power Agent (the fifth respondent) of the respondents 2 to 4 and hence, they are definitely necessary and proper parties to the proceedings. 11. Heard the submissions made by the learned counsel for the petitioners and the learned counsel for the first respondent and also perused the records. 12. To decide the issue involved in this petition, it is useful to extract Section 19(b) & (c) of the Specific Relief Act (hereinafter referred to as 'the said Act'), which reads as follows:- "19. Relief against parties and persons claiming under them by subsequent title Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against - (a).......... (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract; (c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant." 13. Therefore, it is clear that the person who is to be a party to a specific performance suit is one who has purchased the property subsequent to the agreement entered into between the person seeking specific performance and the person against whom the specific performance is sought for. In the instant case, though the sale deed has come into existence after filing of the suit by the first respondent, however, the sale deed is pursuant to an agreement which has been entered into as early as in the year 1958 much prior to the first respondent coming into the scene. Therefore, the revision petitioners would not have come within the ambit of Section 19(b) of the said Act. The Judgments cited by the 1st respondent has no application to the facts of the instant case. 14. The first respondent has to work out his remedy only against the respondents 2 to 4, under whom he claims a right. Therefore, the revision petitioners would not have come within the ambit of Section 19(b) of the said Act. The Judgments cited by the 1st respondent has no application to the facts of the instant case. 14. The first respondent has to work out his remedy only against the respondents 2 to 4, under whom he claims a right. The learned Judge, City Civil Court, Chennai by allowing the Interlocutory Application in I.A.No.16700 of 2011 has committed an error inasmuch as he is impleading the revision petitioners to a fresh round of litigation when the revision petitioners rights & possession have already been confirmed in an earlier suit in O.S.No.4109 of 2000 and they have purchased the property pursuant to agreement entered into by their late father in the year 1958. The order of the Learned Judge, City Civil Court, Chennai suffers from infirmity and is liable to be set aside. 15. In the result, the Civil Revision Petition is allowed and the order passed by the learned Judge, City Civil Court, Chennai, in I.A.No.16700 of 2011 in O.S.No.14644 of 2010 dated 13.02.2012 is set aside. No costs. Consequently, connected miscellaneous petition is closed.