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2019 DIGILAW 1195 (GAU)

Makmodul Hoque Laskar v. Jahirul Haque Laskar

2019-11-05

PRASANTA KUMAR DEKA

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ORDER : 1. Heard Mr. I. Alam, learned counsel for the petitioner. Also heard Mr. N. Dhar, learned counsel for the respondent No. 1 and Ms. R.R. Bora, learned counsel for the respondent Nos. 2 and 3. 2. The order impugned in this revision petition was passed in T.S. No. 134/2012 by the learned Court of Munsiff No. 1, Cachar at Lakhipur dated 7.9.2019. The present petitioner as the plaintiff filed T.S. No. 134/2012 renumbered as T.S. No. 14/2016 pending in the court of learned Munsiff No. 1, Cachar at Lakhipur against the predecessor in interest Abdul Hai Laskar of the substituted defendant-respondent Nos. 2 and 3. The suit was for specific performance of contract in respect of an agreement or sale of a plot of land executed by the said Abdul Hai Laskar. The respondent No. 1-Jahirul Haque Laskar also filed T.S. No. 115/2014 pending in the court of learned Munsiff No. 1, Cachar at Lakhipur for specific performance of contract enforcing an agreement for sale of land against the said Abdul Hai Laskar and on his death the present respondent Nos. 2 and 3 were also made parties as defendants. The subject-matter in both the suits are same and identical plot of land. 3. The respondent No. 1 filed an application for impleadment in T.S. No. 134/2012 (T.S. No. 14/2016) seeking for his impleadment in the said suit on the ground that Abdul Hai Laskar entered into an agreement for sale with him on 23.4.2012 and as the subject agreement in T.S. No. 134/2012 was also executed by Abdul Hai Laskar on 11.6.2012 so in order to protect his interest in respect of the subject-matter of the agreement dated 23.4.2012, he sought for his impleadment in the suit otherwise it would lead to multiplicity of suits. The petitioner filed written objection. The learned court below after hearing the parties vide the impugned order allowed the application under order 1, rule 10(2) of the CPC impleading the respondent No. 1 as the defendant in the said T.S. No. 134/2012 (T.S. No. 14/2016). Being aggrieved by the said order the plaintiff/petitioner in T.S. No. 134/2012 (T.S. No. 14/2016) preferred this revision petition challenging the said order of impleadment. 4. Mr. Alam submits that the petitioner filed the suit for specific performance of contract. The learned court below without considering the nature of the suit allowed the application for impleadment. Being aggrieved by the said order the plaintiff/petitioner in T.S. No. 134/2012 (T.S. No. 14/2016) preferred this revision petition challenging the said order of impleadment. 4. Mr. Alam submits that the petitioner filed the suit for specific performance of contract. The learned court below without considering the nature of the suit allowed the application for impleadment. The fact that such impleadment would change the nature of the suit was not considered by the court below. It is his contention that the agreement which is the subject-matter in T.S. No. 134/2012 was executed by Abdul Hai Laskar, the vendor in favour of the petitioner. Nowhere the respondent No. 1 is involved nor any interest is created in favour of the respondent No. 1 by the said Abdul Hai Laskar and accordingly learned court below passed the order erroneously. Mr. Alam relies on the case law of Bharat Karsondas Thakkar v. Kiran Construction Co., (2008) 13 SCC 658 : AIR 2008 SC 2134 and Kasturi v. Iyyamperumal, (2005) 6 SCC 733 : AIR 2005 SC 2813 . 5. Mr. Dhar on the other hand submits that under order 1, rule 10(2) of the CPC the court has ample power to implead necessary/proper party in order to avoid multiplicity of proceedings. Drawing reference to the peculiarity of the factual matrix the learned court below rightly allowed the impleadment application after holding by the learned court below that the same was done in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. 6. I have heard the learned counsel. Order 1, rule 10(2) of the CPC stipulates that the court may at any stage of the proceedings, either upon or without the application of either party, order that the name of any party improperly joined as plaintiff or defendant be struck out and that the name of any person who ought to have been joined 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. Learned court below while deciding the said application for impleadment held as follows: “As it appears that there was two bianamas “agreements of sale” executed by the original defendant since deceased Abdul Hai Laskar in respect of the same land, hence, in my considered view the presence of the petitioner Jeherul Hoque is necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. That apart to avoid the multiplicity of the proceedings it is necessary to add the petitioner as defendant in the suit.” 7. Mr. Alam submits that the aforesaid observation of the court below is erroneous. But Mr. Dhar on the other hand supports the finding of the court below. Let me examine whether the court below had applied its jurisdiction which it ought not to have applied. 8. The respondent No. 1 is a stranger to the agreement for sale entered into by the petitioner and Abdul Hai Laskar executed on 11.6.2012. On the other hand though the respondent No. 1 had filed T.S. No. 115/2014 for specific performance of contract against the vendor Abdul Hai Laskar. The respondent No. 1 sought for his impleadment in T.S. No. 134/2012 (T.S. No. 14/2016) on the ground that the said vendor also executed an agreement for sale of land on 23.4.2012 in his favour but in respect of the same plot of land promised subsequently to be sold to the petitioner. A suit for specific performance of contract has its foundation on a valid lawful contract. Either of the parties to the contract can move the court for its enforcement. The court on the other hand has to consider as to the entitlement of the plaintiff for enforcing the contract against the defendant. This is because of the fact that the court presumes that plaintiff and the defendant in the suit were ad-idem to the terms of the contractual obligations and due to non-performance of any of the stipulations in the agreement the aggrieved person is before the court. Thus, a stranger to the contract is not a necessary/proper party in the suit and as such the scope of the court in such a suit is also limited. 9. Thus, a stranger to the contract is not a necessary/proper party in the suit and as such the scope of the court in such a suit is also limited. 9. In Kasturi v. lyyamperumal, AIR 2005 SCW 2368 : (2005) 6 SCC 733 : AIR 2005 SC 2813 , a three-judge Bench of the hon'ble Apex Court held while deciding the question who is a proper party in a suit for specific performance as follows: “10…… [F]or deciding the question who is a proper party in a suit for specific performance the guiding principle is that the presence of such a party is necessary to adjudicate the controversies involved in the suit for specific performance of the contract for sale. Thus, the question is to be decided keeping in mind the scope of the suit. The question that is to be decided in a suit for specific performance of the contract for sale is to the enforceability of the contract entered into between the parties to the contract. If the person seeking addition is added in such a suit, the scope of the suit for specific performance would be enlarged and it would be practically converted into a suit for title ………” 10. Finally it was held by the hon'ble Apex Court necessary parties in a suit for specific performance of contract are persons in whose absence no decree can be passed by the court or that there must be a right to some relief against some party in respect of the controversy involved in the proceeding. Proper parties are those whose presence before the court would be necessary in order to enable the court effectively to adjudicate upon and settle all the questions involved in the suit though no relief in the suit was claimed against such person. 11. Keeping in view the aforesaid ratio let me take into consideration section 19 of the Specific Relief Act, 1963 which is reproduced herein below: “19. 11. Keeping in view the aforesaid ratio let me take into consideration section 19 of the Specific Relief Act, 1963 which is reproduced herein below: “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) either party thereto; (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; (d) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation; (e) 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 communicated such acceptance to the other party to the contract.” 12. The statement made in the application for impleadment allegedly there was an agreement for sale entered into by the respondent No. 1 with the vendor prior to the one entered into by the petitioner-plaintiff in T.S. No. 134/2012 (T.S. No. 14/2016). The vendor subsequently wanted to dishonour his promise made in the said agreement for sale with respondent No. 1 by entering into another agreement for sale with the petitioner in respect of the same land which the vendor promised to sell to the respondent No. 1. Now if we read section 19(c) of the Specific Relief Act, 1963 coupled with the ratio laid down by the hon'ble Apex Court hereinabove stated, the respondent No. 1 even if not a necessary party but is a proper party to the suit filed by the petitioner in order to decide and settle all the questions involved in the suit. Similarly considering the scope of order 1, rule 10(2) of the CPC the respondent No. 1 is a proper party and the court below rightly impleaded the respondent No. 1 in the suit filed by the petitioner. 13. Accordingly this revision petition is devoid of merit and is dismissed but without any cost. Similarly considering the scope of order 1, rule 10(2) of the CPC the respondent No. 1 is a proper party and the court below rightly impleaded the respondent No. 1 in the suit filed by the petitioner. 13. Accordingly this revision petition is devoid of merit and is dismissed but without any cost. Interim order passed earlier stands vacated.