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Madhya Pradesh High Court · body

2018 DIGILAW 590 (MP)

Ram Kumar Katare v. Kalicharan

2018-07-04

SHEEL NAGU

body2018
ORDER 1. The supervisory jurisdiction of this Court is invoked to assail rejection of an application under Order 1 rule 10 CPC preferred by the petitioner contending that they are party to an agreement to sale executed on 28.12.2012 in respect of the suit property in regard to which litigation in shape of Second Appeal No. 120/10 is pending. 2. The trial Court found that the said agreement to sell dated 28.12.2012 though related to the suit property in the instant suit but since the said agreement has not transferred any right in favour of the petitioner, the application for impleadment was dismissed. 3. Learned counsel for the petitioner submits that if they are not impleaded as party, their rights would be jeopardÁed as they have entered into agreement to sale in respect of the said suit property. Reliance is placed on the decision of apex Court in the case of Kasturi v. Iyyamperumal and others, reported in (2005) 6 SCC 733 , to contend that a person want to be impleaded as a party may not have any subsisting right or interest over the suit property but if he establishes that he is likely to acquire interest therein in future, his impleadment becomes necessary. 4. On the other hand, learned counsel for the respondents by relying upon the decision of apex Court in the case of Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and others reported in (2010) 7 SCC 417 contends that mere exception as to of likelihood of conveyance, however well founded, does not create any interest on the party. It is submitted that discretion vested with the trial Court under Order 1 rule 10 is wide enough and no jurisdictional error is vested in the impugned order as the same is attended with cogent reasons. 5. Before proceedings ahead, it would be appropriate to produce few paragraphs of the judgment in the case of Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and others reported in (2010) 7 SCC 417 in which after considering three judges bench decision in the case of Kasturi v. Iyyamperumal and others, reported in (2005) 6 SCC 733 , the apex Court held thus : 13. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I rule 10(2) of Code of Civil Procedure (‘Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below : “10. (2) "Court may strike out or add parties. The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added." 14. The said provision makes it clear that a Court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the Court may be necessary in order to enable the Court to effectively and completely adjudicate upon and settle the question involved in the suit. In short, the Court is given the discretion to add as a party, any person who is found to be a necessary party or proper party. 15. A `necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a `necessary party' is not impleaded, the suit itself is liable to be dismissed. 15. A `necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a `necessary party' is not impleaded, the suit itself is liable to be dismissed. A `proper party' is a party who, though not a necessary party, is a person whose presence would enable the Court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the Court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance. 16. The learned counsel for the appellants relied upon the following observations of a two-Judge Bench of this Court in Sumtibai v. Paras Finance Co. [ (2007) 10 SCC 82 ] to contend that a person need not have any subsisting right or interest in the suit property for being impleaded as a defendant, and that even a person who is likely to acquire an interest therein in future, in appropriate cases, is entitled to be impleaded as a party : 9. "Learned counsel for the respondent relied on a threeJudge Bench decision of this Court in Kasturi v. Iyyamperuma [ (2005) 6 SCC 733 ]. He has submitted that in this case it has been held that in a suit for specific performance of a contract for sale of property a stranger or a third party to the contract cannot be added as defendant in the suit. In our opinion, the aforesaid decision is clearly distinguishable. In our opinion, the aforesaid decision can only be understood to mean that a third party cannot be impleaded in a suit for specific performance if he has no semblance of title in the property in dispute. Obviously, a busybody or interloper with no semblance of title cannot be impleaded in such a suit. That would unnecessarily protract or obstruct the proceedings in the suit. Obviously, a busybody or interloper with no semblance of title cannot be impleaded in such a suit. That would unnecessarily protract or obstruct the proceedings in the suit. However, the aforesaid decision will have no application where a third party shows some semblance of title or interest in the property in dispute..... 14....It cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. If C can show a fair semblance of title or interest he can certainly file an application for impleadment." 17. The learned counsel for the first respondent on the other hand submitted that the decision in Sumtibai is not be good law in view of an earlier decision of a three-Judge Bench decision of this Court in Kasturi v. Iyyamperumal [ (2005) 6 SCC 733 ]. 18. In Kasturi, this Court reiterated the position that necessary parties and proper parties can alone seek to be impleaded as parties to a suit for specific performance. This Court held that necessary parties are those persons in whose absence no decree can be passed by the Court or those persons against whom there is a right to some relief in respect of the controversy involved in the proceedings; and that proper parties are those whose presence before the Court would be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person. 19. Referring to suits for specific performance, this Court held that the following persons are to be considered as necessary parties: (i) the parties to the contract which is sought to be enforced or their legal representatives; (ii) a transferee of the property which is the subject matter of the contract. This Court also explained that a person who has a direct interest in the subject matter of the suit for specific performance of an agreement of sale may be impleaded as a proper party, on his application under Order 1 rule 10 CPC. This Court also explained that a person who has a direct interest in the subject matter of the suit for specific performance of an agreement of sale may be impleaded as a proper party, on his application under Order 1 rule 10 CPC. This Court concluded that a purchaser of the suit property subsequent to the suit agreement would be a necessary party as he would be affected if he had purchased it with or without notice of the contract, but a person who claims a title adverse to that of the defendant-vendor will not be a necessary party. 20. The first respondent contended that Kasturi held that a person claiming a title adverse to the title of defendant-vendor, could not be impleaded, but effect of Sumtibai would be that such a person could be impleaded; and that therefore, the decision in Sumtibai is contrary to the larger bench decision in Kasturi. 21. On a careful consideration, we find that there is no conflict between the two decisions. The two decisions were dealing with different situations requiring application of different facets of sub-rule (2) of rule 10 of Order 1. This is made clear in Sumtibai itself. It was observed that every judgment must be governed and qualified by the particular facts of the case in which such expressions are to be found; that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision and that even a single significant detail may alter the entire aspect; that there is always peril in treating the words of a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. The decisions in Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay [ (1992) 2 SCC 524 ] and Anil Kumar Singh v. Shivnath Mishra [ (1995) 3 SCC 147 ], also explain in what circumstances persons may be added as parties. 22. Let us consider the scope and ambit of Order 1 of rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the Court to strike out or add parties at any stage of a proceeding. 22. Let us consider the scope and ambit of Order 1 of rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the Court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo moto or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The Court can strike out any party who is improperly joined. The Court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the Court deems fit to impose. In exercising its judicial discretion under Order 1 rule 10(2) of the Code, the Court will of course act according to reason and fair play and not according to whims and caprice. 23. This Court in Ramji Dayawala and Sons (P) Ltd. v. Invest Import (1981) 1 SCC 80 , reiterated the classic definition of `discretion' by Lord Mansfield in R. v. Wilkes - 1770 (98) ER 327, that `discretion' when applied to Courts of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, `but legal and regular'. 24. We may now give some illustrations regarding exercise of discretion under the said Sub-Rule. 24.1 If a plaintiff makes an application for impleading a person as a defendant on the ground that he is a necessary party, the Court may implead him having regard to the provisions of rules 9 and 10(2) of Order I. If the claim against such a person is barred by limitation, it may refuse to add him as a party and even dismiss the suit for non-joinder of a necessary party. 24.2 If the owner of a tenanted property enters into an agreement for sale of such property without physical possession, in a suit for specific performance by the purchaser, the tenant would not be a necessary party. 24.2 If the owner of a tenanted property enters into an agreement for sale of such property without physical possession, in a suit for specific performance by the purchaser, the tenant would not be a necessary party. But if the suit for specific performance is filed with an additional prayer for delivery of physical possession from the tenant in possession, then the tenant will be a necessary party in so far as the prayer for actual possession. 24.3 If a person makes an application for being impleaded contending that he is a necessary party, and if the Court finds that he is a necessary party, it can implead him. If the plaintiff opposes such impleadment, then instead of impleading such a party, who is found to be a necessary party, the Court may proceed to dismiss the suit by holding that the applicant was a necessary party and in his absence the plaintiff was not entitled to any relief in the suit. 24.4 If an application is made by a plaintiff for impleading someone as a proper party, subject to limitation, bonfides etc., the Court will normally implead him, if he is found to be a proper party. On the other hand, if a non-party makes an application seeking impleadment as a proper party and Court finds him to be a proper party, the Court may direct his addition as a defendant; but if the Court finds that his addition will alter the nature of the suit or introduce a new cause of action, it may dismiss the application even if he is found to be a proper party, if it does not want to widen the scope of the specific performance suit; or the Court may direct such applicant to be impleaded as a proper party, either unconditionally or subject to terms. For example, if `D' claiming to be a co-owner of a suit property, enters into an agreement for sale of his share in favour of `P' representing that he is the co-owner with half share, and `P' files a suit for specific performance of the said agreement of sale in respect of the undivided half share, the Court may permit the other coowner who contends that `D' has only one-fourth share, to be impleaded as an additional defendant as a proper party, and may examine the issue whether the plaintiff is entitled to specific performance of the agreement in respect of half a share or only one-fourth share; alternatively the Court may refuse to implead the other co-owner and leave open the question in regard to the extent of share of the vendordefendant to be decided in an independent proceeding by the other co-owner, or the plaintiff; alternatively the Court may implead him but subject to the term that the dispute, if any, between the impleaded co-owner and the original defendant in regard to the extent of the share will not be the subject matter of the suit for specific performance, and that it will decide in the suit, only the issues relating to specific performance, that is whether the defendant executed the agreement/contract and whether such contract should be specifically enforced. 25. In other words, the Court has the discretion to either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party. 26. If the principles relating to impleadment, are kept in view, then the purported divergence in the two decisions will be found to be non- existent. The observations in Kasturi and Sumtibai are with reference to the facts and circumstances of the respective case. In Kasturi, this Court held that in suits for specific performance, only the parties to the contract or any legal representative of a party to the contract, or a transferee from a party to the contract are necessary parties. In Sumtibai, this Court held that a person having semblance of a title can be considered as a proper party. Sumtibai did not lay down any proposition that anyone claiming to have any semblance of title is a necessary party. In Sumtibai, this Court held that a person having semblance of a title can be considered as a proper party. Sumtibai did not lay down any proposition that anyone claiming to have any semblance of title is a necessary party. Nor did Kasturi lay down that no one, other than the parties to the contract and their legal representatives/transferees, can be impleaded even as a proper party.” 6. After indepth interpretation of the provision of Order 1 rule 10 CPC the apex Court laid down aforesaid principle. 7. When the impugned order is tested on the anvil of the above said principle, it is seen that the trial Court had held that the agreement dated 28.12.2012 did not vest any title with the petitioner. As such the petitioner was treated as a proper party but not a necessary party in regard to whom trial Court had discretion to either allow or disallow the prayer for impleadment. The reasons assigned by the trial Court does not appear to be unjustified and illegal as it may not be the most appropriate decision taken in the given facts and circumstances but the trial Court while doing so, has not exceeded its jurisdiction or cannot be attributed with failure to exercise jurisdiction vested in it. The contention of learned counsel for the petitioner may be a view which is lawful but the one taken by the trial Court cannot be said to be unlawful and is one of the possible views which could have been taken in the attending facts and circumstances. Just because another view is possible, interference in the limited supervisory jurisdiction of this Court under Article 227 of the Constitution of India is not warranted. Consequently, the present petition deserves to be and is hereby rejected sans cost.