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Allahabad High Court · body

2019 DIGILAW 2497 (ALL)

Mohd Ansaar Alias Teepu v. Dildar

2019-11-07

MANOJ KUMAR GUPTA

body2019
JUDGMENT : Manoj Kumar Gupta, J. The instant petition is directed against the order dated 28.5.2019, whereby the trial court has granted leave to respondent no. 7, to be arrayed as a party defendant, being assignee of the interest of defendants 1, 2, 3 and 4, during pendency of the partition suit. The petitioner has also challenged the order of revisional court dated 1.7.2019, dismissing the revision as not maintainable. 2. Learned counsel for the petitioner submitted that respondent no. 7, who has been granted leave to contest the suit, is not a necessary and proper party. In support of his submission, he has placed reliance on a recent judgment of Supreme Court in Gurmit Singh Bhatia vs. Kiran Kant Robinson and others, 2019 SCCOnlineSC 912. 3. The suit instituted by the plaintiff-petitioner is for partition of a building, bearing Municipal No. 638. Defendants 3 and 4 in their written statement, categorically took the plea that they had sold their undivided share to respondent no. 7 by sale deed dated 21.10.2014. The execution of sale deed dated 5.9.2014 by defendants 1 and 2 in respect of their share, in favour of respondent no. 7, is also not in dispute. Order 22 Rule 10 CPC empowers the court in case of assignment of any interest during pendency of a suit to grant leave to the assignee to prosecute/contest the suit, as the case may be. 4. The Supreme Court has permitted impleadment of the assignee of the interest of parties during pendency of litigation in the following cases: - 1. Khemchand Shankar Chaudhary vs. Vishnu Hari Patil, (1983) 1 SCC 18 ; 2. Amit Kumar Shaw vs. Farida Khatoon, (2005) 11 SCC 403 ; 3. Savita Devi vs. D.J. Gorakhpur, (1999) 2 SCC 577 ; 4. Dhan Lakshmi vs. P. Mohan, (2007) 10 SCC 719 ; 5. Thomson Press (India) Ltd. vs. Nanak Builders and Investers (Pvt) Ltd., (2013) 5 SCC 397 5. In Gurmit Singh Bhatia (supra), cited by learned counsel for the petitioner, the suit was for specific performance of an agreement for sale. An order of temporary injunction was operating in the suit, restraining the first defendant from alienating the suit property. In violation of the said injunction order, he executed sale deed in favour of third party, who thereafter sought impleadment in the suit, alleging that he is in possession of the suit property. An order of temporary injunction was operating in the suit, restraining the first defendant from alienating the suit property. In violation of the said injunction order, he executed sale deed in favour of third party, who thereafter sought impleadment in the suit, alleging that he is in possession of the suit property. In the said backdrop, the Supreme Court did not permit impleadment of the third party, observing thus: - "15. As discussed herein earlier, whether Respondents 1 and 4 to 11 were proper parties or not, the governing principle for deciding the question would be that the presence of Respondents 1 and 4 to 11 before the court would be necessary to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit. As noted herein earlier, 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 appellant and Respondents 2 and 3 and whether contract was executed by the appellant and Respondents 2 and 3 for sale of the contracted property, whether the plaintiffs were ready and willing to perform their part of the contract and whether the appellant is entitled to a decree for specific performance of a contract for sale against Respondents 2 and 3. It is an admitted position that Respondents 1 and 4 to 11 did not seek their addition in the suit on the strength of the contract in respect of which the suit for specific performance of the contract for sale has been filed. Admittedly, they based their claim on independent title and possession of the contracted property. It is, therefore, obvious as noted herein earlier that in the event, Respondents 1 and 4 to 11 are added or impleaded in the suit, the scope of the 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 not permissible in law. In the case of Vijay Pratap v. Sambhu Saran Sinha, (1996) 10 SCC 53 this Court had taken the same view which is being taken by us in this judgment as discussed above. In the case of Vijay Pratap v. Sambhu Saran Sinha, (1996) 10 SCC 53 this Court had taken the same view which is being taken by us in this judgment as discussed above. This Court in that decision clearly held that 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, in our view, a 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. As discussed above, in the event any decree is passed against Respondents 2 and 3 and in favour of the appellant for specific performance of the contract for sale in respect of the contracted property, the decree that would be passed in the said suit, obviously, cannot bind Respondents 1 and 4 to 11. It may also be observed that in the event, the appellant obtains a decree for specific performance of the contracted property against Respondents 2 and 3, then, the Court shall direct execution of deed of sale in favour of the appellant in the event Respondents 2 and 3 refusing to execute the deed of sale and to obtain possession of the contracted property he has to put the decree in execution. As noted herein earlier, since Respondents 1 and 4 to 11 were not parties in the suit for specific performance of a contract for sale of the contracted property, a decree passed in such a suit shall not bind them and in that case, Respondents 1 and 4 to 11 would be at liberty either to obstruct execution in order to protect their possession by taking recourse to the relevant provisions of CPC, if they are available to them, or to file an independent suit for declaration of title and possession against the appellant or Respondent 3. On the other hand, if the decree is passed in favour of the appellant and sale deed is executed, the stranger to the contract being Respondents 1 and 4 to 11 have to be sued for taking possession if they are in possession of the decretal property. 16. On the other hand, if the decree is passed in favour of the appellant and sale deed is executed, the stranger to the contract being Respondents 1 and 4 to 11 have to be sued for taking possession if they are in possession of the decretal property. 16. That apart, from a plain reading of the expression used in sub-rule (2) Order 1 Rule 10 CPC "all the questions involved in the suit" it is abundantly clear that the legislature clearly meant that the controversies raised as between the parties to the litigation must be gone into only, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiff-appellant and the defendants inter se or questions between the parties to the suit and a third party. In our view, therefore, the court cannot allow adjudication of collateral matters so as to convert a suit for specific performance of contract for sale into a complicated suit for title between the plaintiff-appellant on one hand and Respondents 2 and 3 and Respondents 1 and 4 to 11 on the other. This addition, if allowed, would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit would have to be gone into. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of Respondents 1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made herein earlier, Respondents 1 and 4 to 11 would not, at all, be necessary to be added in the instant suit for specific performance of the contract for sale." 6. It is clear from the law laid down by the Supreme Court that a third party, who seeks to raise question of title, cannot be permitted to be impleaded in a suit for specific performance. A suit for specific performance, it was held, cannot be permitted to be converted into a complicated title suit between the plaintiff, the defendants and the third parties. A suit for specific performance, it was held, cannot be permitted to be converted into a complicated title suit between the plaintiff, the defendants and the third parties. However, in the instant case, there is no dispute relating to title of the defendants to the suit property, as it was a suit for partition. The only dispute was regarding extent of share of the defendants and the manner in which property is to be divided. These questions can only be effectively decided, if the assignee of the interest of the defendants is permitted to be brought on record, as has been done by the court below. It is noteworthy that in Khemchand Shankar Chaudhary (supra), Amit Kumar Shaw (supra), Savita Devi (supra), Dhan Lakshmi (supra) and Thomson Press (India) Ltd. (supra), the Supreme Court permitted impleadment of assignee at the stage of preparation of final decree in partition suit. 7. Accordingly, this court finds no illegality in the impugned orders, so as to warrant interference in exercise of power under Article 227 of the Constitution. 8. The petition lacks merit and is dismissed.