Research › Search › Judgment

Andhra High Court · body

2024 DIGILAW 263 (AP)

Y. Dorababu Naidu v. DPMR Developers, Tirupati

2024-02-16

R.RAGHUNANDAN RAO

body2024
ORDER : (R. Raghunandan Rao, J.) The petitioner herein had filed O.S.No.1 of 2023 in the Court of the Senior Civil Judge, Srikalahasthi, against the 2nd respondent for specific performance of an agreement of sale dated 30.04.2016 for purchasing Ac.8.64 cents of land situated in Thimmasamudram Village for a consideration of Rs.43,20,000/-. 2. During the pendency of the suit, the 1st respondent moved I.A.No.486 of 2023 to implead himself under Order I Rule 10 CPC. The case of the 1st respondent was that the 2nd respondent had entered into an agreement of sale with the 1st respondent on 18.10.2022 in respect of Ac.43.14 cents of land in Timmasamudram Village for a consideration of Rs.6,90,24,000/- and received Rs.4,90,00,000/- as advance. The 1st respondent contended that the Ac.8.64 cents, which is the subject matter of O.S.No.1 of 2023 is part of Ac.43.14 cents of land which is to be transferred in favour of the 1st respondent. The 1st respondent further contended that the alleged agreement of sale dated 30.04.2016 is a fabrication prepared by the petitioner for the purpose of obtaining illegal benefit to himself and the same cannot be accepted as the petitioner has neither the capacity nor the ability to pay Rs.35,00,000/- claimed in the suit and that the consideration 43,20,000/- for Ac.8.64 cents is below the market rate and no prudent man would sell the land at such a rate. 3. The petitioner herein opposed the said application contending that respondents 1 and 2 had colluded with each other and had fabricated the agreement of sale dated 18.10.2022 as a defence to the case of the petitioner against the 2nd respondent. 4. The trial Court, after hearing both sides, had allowed the application by an order dated 09.10.2023 whereby the 1st respondent was to be added as 2nd defendant in the suit. Aggrieved by the said order, the present revision petition has been filed by the petitioner. 5. Sri M.Pitchaiah, learned counsel appearing for the petitioner relied upon the judgments in Kasturi vs. Iyyamperumal and Ors., 2005(6) SCC 733 and Taddi Chinnayya and Ors., vs. Tekumalla Purushottam Rao and Ors., 2015(4) ALD 501 to contend that an agreement of sale holder cannot seek to implead himself into the suit filed by a third party for specific performance of the agreement of sale held by the third party. 6. 6. Sri M.L.Ali, learned counsel appearing for the 1st respondent contends that the 1st respondent has sufficient interest in the land and no decree can be passed without the presence of the 1st respondent due to which the order of the trial Court permitting the 1st respondent to implead itself as a defendant cannot be faulted. He relies upon the judgments of this Court reported in Taddi Chinnayya and Ors., vs. Tekumalla Purushottam Rao and Ors., (2 supra) and the judgment of the High Court of Telangana repotted in B.A.S.Devi Prasad vs. Telangana Cooperative Tribunal, Rep. by its Registrar and Ors., 2020(5) ALD212 (TS). Learned counsel would also rely upon the judgment of the Hon'ble Supreme Court in Pankajbhai Rameshbhai Zalavadia vs. Jethabhai Kalabhai Zalavadiya (deceased) thr. LRs. And Ors., 2018(2) ALD 82 (SC) and Sumtibai and Ors., vs. Paras Finance Co., and Ors., 2007(10) SCC 82 . 7. The case of the 1st respondent is that the 1st respondent has an agreement of sale dated 18.10.2022 under which the 1st respondent has a right and claim over the property and no order can be passed without hearing the 1st respondent. 8. The judgments cited by Sri M.Pitchaiah, learned counsel for the petitioner, have been set out above. In Kasturi vs. lyyamperumal and Ors., 2005(6) SCC 733 , and Sumtibai and Ors., vs. Paras Finance Co., and Ors. the Hon'ble Supreme Court framed the question before it in the following manner. 2. The only question that needs to be decided in this case is whether in a suit for specific performance of contract for sale of a property instituted by a purchaser against the vendor, a stranger or a third party to the contract, claiming to have an independent title and possession over the contracted property, is entitled to be added as a party-defendant in the said suit. 9. After framing the aforesaid question, a three Judge Bench of the Hon'ble Supreme Court, after reviewing the law in question, including the provisions of the Specific Relief Act, and certain judgments of the Court of Chancellor and the Hon'ble Supreme Court had held as under: "15. 9. After framing the aforesaid question, a three Judge Bench of the Hon'ble Supreme Court, after reviewing the law in question, including the provisions of the Specific Relief Act, and certain judgments of the Court of Chancellor and the Hon'ble Supreme Court had held as under: "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. 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 th scope of e suit for specific performance of the contract and the same cannot be turned into a regular title suit. 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 th scope of e 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 e that in the vent, 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 1 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." 10. However, this judgment came to be distinguished by the Hon'ble Supreme Court in Sumtibai and Ors., vs. Paras Finance Co., and Ors., which reads as under: 9. Learned counsel for the respondent relied on a three-Judge Bench decision of this Court in Kasturi v. Iyyamperumal, 2005(6) SCC 733 . However, this judgment came to be distinguished by the Hon'ble Supreme Court in Sumtibai and Ors., vs. Paras Finance Co., and Ors., which reads as under: 9. Learned counsel for the respondent relied on a three-Judge Bench decision of this Court in Kasturi v. Iyyamperumal, 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. However, the aforesaid decision will have no application where a third party shows some semblance of title or interest in the property in dispute. In the present case, the registered sale deed dated 12.08.1960 by which the property was purchased shows that the shop in dispute was sold in favour of not only Kapoor Chand, but also his sons. Thus prima facie it appears that the purchaser of the property in dispute was not only Kapoor Chand but also his sons. Hence, it cannot be said that the sons of Kapoor Chand have no semblance of title and are mere busybodies or interlopers. 14. In view of the aforesaid decisions we are of the opinion that Kasturi case [ (2005) 6 SCC 733 ] is clearly distinguishable. In our opinion 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 can never be impleaded in that suit. In our opinion, if C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced. 11. In view of the ratio laid down by the Hon'ble Supreme Court, there may not be any necessity to go into the other judgments cited before this Court as the ratio laid down in ail the other judgments would have to give way to the ratio laid down by the Hon'ble Supreme Court in the aforesaid two cases. 12. The ratio that can be deduced from the aforesaid two judgments of the Hon'ble Supreme Court is that a person, who can raise a claim over the property, and where a decree cannot be passed, without his/her presence would be a necessary party, who would be entitled to invoke the provisions of Order I Rule 10 for impleading himself/herself in the suit. 13. In the present case, both conditions have been fulfilled. Therefore, there are no grounds on which this Court can interfere with the decision of the trial Court. 14. Accordingly, the civil revision petition is dismissed. There shall be no order as to costs. As a sequel, pending miscellaneous petitions. if any, shall stand closed.