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2019 DIGILAW 13 (ORI)

Kesaba Behera v. Chinari Swapnarani Subudhi

2019-01-07

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 1.12.2018 passed by the learned Senior Civil Judge, Chatrapur, Ganjam in Civil Suit No.25 of 2018, whereby and whereunder, learned trial court has rejected the application of the petitioner for impleadment. 2. The plaintiff-opposite party no.1 instituted the suit for specific performance of contract impleading opposite party no.2 as defendant. The defendant filed written statement. While the matter stood thus, the petitioner filed an application under Order 1 Rule 10 CPC to implead him as a party. It was stated that he entered into one agreement for sale with the defendant. He is a necessary party to the suit. In view of the same, he may be impleaded as a party. 3. Heard Mr.Arijeet Mishra, learned Advocate for the petitioner. 4. The sole question that falls for determination before this Court as to whether in a specific performance of contract, 3rd party is a necessary or proper party ? 5. The subject of matter is no more res integra. An identical matter came up for consideration before this Court in the case of Monmohan Sahu Vs. Ashis Kumar Mandal & others, (2016) 2 OrissaLR 128. This Court held: "6. This is not a virgin ground in so far as the question is concerned. The subject-matter of dispute is no more res integra. 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 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. 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 inescapable conclusion is that the intervenor-the present petitioner is neither necessary party nor proper party to the suit." 6. The ratio in the case of Monmohan Sahu (supra) applies with full force to the facts of this case. 7. In view of the authoritative pronouncement of this Court in the case of Manmohan Sahu (supra), the petition, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.