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2022 DIGILAW 507 (KAR)

C. D. Sanjay Raj v. N. Anandha Krishnan

2022-04-08

H.B.PRABHAKARA SASTRY

body2022
ORDER 1. The present respondents No.1, 2, and 3, as plaintiffs, have instituted a suit in O.S.No.104/2010, against the present respondents No.4 and 5 arraigning them as defendant Nos. 1 and 2 in the Court of the learned II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru (hereinafter for brevity referred to as 'the Trial Court') for the relief of specific performance with respect to sale of an immovable property. 2. During the pendency of the suit, the present petitioner, claiming himself as another agreement holder for sale dated 16-05-2008 of the very same suit schedule property in his favour by the defendants No.1 and 2, filed an interlocutory application, i.e. I.A.No.4 under Order I Rule 10(2) of the Code of Civil Procedure, 1908 (hereinafter for brevity referred to as 'the CPC') seeking his impleadment in the suit as defendant No.3. The Trial Court, vide its order dated 24-03-2016, rejected the said interlocutory application. Aggrieved by the same, the impleading applicant (petitioner herein) in the Trial Court has preferred this writ petition. 3. Learned Senior Counsel appearing for the petitioner, in his argument submitted that, the present petitioner is a necessary party for the adjudication of the dispute in O.S.No.104/2010. After entering into a registered sale agreement dated 16-05-2008 (Annexure C) for purchase of immovable property from the defendants 1 and 2, the present petitioner has also paid the balance amount of the sale consideration through a supplementary agreement dated 02-07-2008 (Annexure D) and also has obtained a registered irrevocable power of attorney (Annexure E) in his favour. Thus, the said registered agreement at Annexure C has acted as a public notice. Therefore, the plaintiffs are supposed to have the knowledge of the said transaction, as such, should have impleaded the present petitioner also as a party in the original suit filed by them. Contending that the ratio of law laid down by the Hon'ble Apex Court in the case of Gurmit Singh Bhatia Vs. Kiran Kant Robinson and others reported in (2020) 13 Supreme Court Cases 773 would not come in the way of the petitioner herein getting himself impleaded in the original suit filed by the plaintiffs, the learned Senior Counsel relied upon few reported judgments of the Hon'ble Apex Court, which would be referred to herein afterwards at the appropriate stages. 4. Kiran Kant Robinson and others reported in (2020) 13 Supreme Court Cases 773 would not come in the way of the petitioner herein getting himself impleaded in the original suit filed by the plaintiffs, the learned Senior Counsel relied upon few reported judgments of the Hon'ble Apex Court, which would be referred to herein afterwards at the appropriate stages. 4. Learned counsel for the respondents No.1 to 3 (plaintiffs) in his brief argument submitted that, since the time was the essence of the contract under the alleged agreement of sale held by the present petitioner in their support, and due to efflux of the said time, the petitioner's agreement has come to a close. Further, the petitioner's right to sue for specific performance also has stood extinguished. Learned counsel further submitted that, in the circumstance of the case, it is Gurmit Singh Bhatia's case (supra) which holds the field and the Trial Court has rightly exercised its discretion with reasons which does not warrant any interference at the hands of this Court. 5. The present petitioner contends that with respect to the very same suit schedule property, which is the subject matter in O.S.No.104/2010, he too has an agreement for sale in his favour executed by the very same vendors on date 16-05-2008, a copy of which he has produced at Annexure 'C'. It is his further contention that the balance sale consideration was also paid by him through the supplementary agreement dated 02-07-2008 (Annexure D) and has obtained an irrevocable power of attorney executed by the vendors in his favour as per Annexure E, as such, he is a necessary party in O.S.No.104/2010. 6. Learned Senior Counsel for the petitioner contending that the present petitioner has a direct interest in the suit transaction, as such, he is a necessary party, relied upon the judgment of the Hon'ble Apex Court in the case of Razia Begum Vs. Sahebzadi Anwar Begum and others reported in AIR 1958 SUPREME COURT 886. In the said judgment, with respect to Order I Rule 10(2) of the CPC, the Hon'ble Apex Court in para-13 of its judgment was pleased to observe as below: '13........ Sahebzadi Anwar Begum and others reported in AIR 1958 SUPREME COURT 886. In the said judgment, with respect to Order I Rule 10(2) of the CPC, the Hon'ble Apex Court in para-13 of its judgment was pleased to observe as below: '13........ (1) That the question of addition of parties under R.10 of O.1 of the Code of Civil Procedure, is generally not one of initial jurisdiction of the court, but of judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case; but in some cases, it may raise controversies as to the power of the court, in contradistinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in S.115 of the Code; (2) That in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subjectmatter of the litigation;...........' According to the learned Senior Counsel, since the present petitioner is a holder of a registered agreement of sale, though it is subsequent to the alleged agreement of sale in favour of the plaintiffs, still, he (petitioner herein) has a direct interest in the litigation, as such, he is a necessary party. 7. Learned counsels from both side also relied upon another judgment of the Hon'ble Apex Court in the case of Kasturi Vs Iyyamperumal and others reported in (2005) 6 Supreme Court Cases 733, where the Hon'ble Apex Court was pleased to prescribe a 'Test' to ascertain as to who is a necessary party in a litigation. In the said case, in para.7 of its judgment, the Hon'ble Apex Court while dealing with Order I Rule 10(2) of the CPC, was pleased to observe as below: '7. In our view, a bare reading of this provision, namely, second part of Order 1 Rule 10 sub-rule (2) CPC would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead, their legal representatives as also a person who had purchased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are - (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party.' 8. Learned Senior Counsel for the petitioner also relied upon one more judgment of the Hon'ble Apex Court in the case of Vidur Impex and Traders Pvt. Ltd. and Ors Vs. Tosh Apartments Pvt. Ltd. and others reported in 2012 AIR SCW 4677, wherein, the Hon'ble Apex Court in para.36 of its judgment was pleased to lay down certain broad principles which should govern the disposal of an application for impleadment, in the following terms: '36....... 1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit. 2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court. 3. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made. 4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff. 5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 6. 5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment.' The principle laid down by the Hon'ble Apex Court as above, in those judgments will be borne in mind in considering the prayer of the petitioner in the present petition. 9. Though learned Senior Counsel for the petitioner also relied upon a judgment of the Hon'ble Apex Court in the case of Durga Prasad and another Vs Deep Chand and others reported in AIR 1954 SUPREME COURT 75, since the said judgment deals with Section 27 of the Specific Relief Act, more particularly, regarding the proper form of drawing up of a decree in a contract of sale where there are more than one purchaser claiming their right for purchase, the said judgment would not enure to the benefit of the present petitioner in the instant case, wherein he has questioned the rejection of his application for impleading as defendant No.3 in the original suit filed by the plaintiffs. 10. The learned Senior counsel for the petitioner also relied upon a judgment of the Hon'ble Apex Court in the case of Thomson Press (India) Limited Vs. Nanak Builders and Investors Private Limited and others reported in (2013) 5 Supreme Court Cases 397 wherein with respect to Order I Rule 10(2) of the CPC, while reiterating the principle for impleading of a party in the suit, the Hon'ble Apex Court was pleased to observe that, Order 1 Rule 10(2) of the CPC empowers the Court to add any person as party at any stage of the proceedings if the person whose presence before the Court is necessary or proper for effective adjudication of the issue involved in the suit. It is manifest that Order I Rule 10 of the CPC gives a wider discretion to the Court to meet every case or defect of a party and to proceed with a person who is either a necessary or a proper party whose presence in the Court is essential for effective determination of the issues involved in the suit. 11. In the light of the above judgments, if the application of the present petitioner seeking his impleading in the suit as defendant No.3 is considered, the applicant (petitioner) claims himself to be a subsequent agreement holder for the purpose of the very same suit schedule property for a valuable consideration. Admittedly, the suit is instituted by the plaintiffs therein for the relief of specific performance of an agreement contending that the defendants therein have agreed to sell the suit schedule property in their favour for a valuable consideration. Undisputedly, the alleged agreement in favour of the plaintiffs is older in time compared to that of the impleading applicant's (petitioner herein). 12. Though the plaintiffs in the Trial Court have not filed their Statement of Objections to the impleading application filed by the present petitioner, however, they opposed the said application. The Trial Court, relying upon the judgment of the Hon'ble Apex Court in Gurmit Singh Bhatia's case (supra) has rejected the application filed by the impleading applicant (petitioner herein). 13. In Gurmit Singh Bhatia's case (supra), the Hon'ble Apex Court in para 5.5 of its judgment was pleased to observe as follows: '5.5. It is further observed and held by this court in Kasturi Vs. Iyyamperumal (2005) 6 SCC 733 that if the plaintiff who has filed a suit for specific performance of the contract to sell, even after receiving the notice of claim of title and possession by other persons (not parties to the suit and even not parties to the agreement to sell for which a decree for specific performance is sought) does not want to join them in the pending suit, it is always done at the risk of the plaintiff because he cannot be forced to join the third parties as party defendants in such suit. The aforesaid observations are made by this court considering the principle that the plaintiff is the dominus litis and cannot be forced to add parties against whom he does not want to fight unless there is a compulsion of the rule of law.' With the above observation, considering its previous decision in Kasturi's case (supra), the Hon'ble Apex Court held that the appellant (applicant) cannot be impleaded as a defendant in the suit filed by the original plaintiffs for specific performance of the contract between the original plaintiffs and the original defendant No.1 and in a suit for specific performance of the contract to which the appellant was not a party and that too against the wish of the plaintiffs. It further observed that the plaintiffs cannot be forced to add a party against whom he does not want to fight. If he does so, in that case, it will be at the risk of the plaintiffs. 14. In the instant case also, admittedly, the present petitioner was not a party in the agreement between the present respondents No.1 to 3 with present respondents No.4 and 5, who are the original parties in original suit in O.S.No.104/2010. Even though the plaintiffs have not filed their Statement of Objections to the interlocutory application filed by the petitioner herein under Order I Rule 10(2) of the CPC in the Trial Court, but they have opposed the said application both in the Trial Court as well before this Court. In such a circumstance, the plaintiffs who are dominus litis, cannot be forced to add parties against whom they do not want to fight unless there is a compulsion of the rule of law. In the facts and circumstances of the case, there is no compulsion of the rule of law for impleading the present petitioner as defendant No.3 in O.S.No.104/2010. Therefore, the plaintiffs cannot be forced to add a party against whom they do not want to fight. 15. Even in Vidur Impex and Traders Pvt. Ltd. case also (supra), which was relied upon by the learned counsel for the petitioner herein, the Hon'ble Apex Court was pleased to observe that, if a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff. 16. 16. Since in the instant case, there is no compulsion of the rule of law that the present petitioner is a necessary party and must be impleaded as defendant No.3 in O.S.No.104/2010 filed by the plaintiffs (respondents No.1 to 3 herein), the plaintiffs cannot be forced to implead the present petitioner as a defendant when they are ready to face the further consequence, if any, that may follow due to non-impleading of the present petitioner. Thus, I do not find any illegality or infirmity or error in the impugned order warranting its setting aside or quashing. Accordingly, I proceed to pass the following: O R D E R The Writ petition stands dismissed as devoid of merits.