Shri Meer Singh Vs. Shri Amar Singh - Court Judgment

Excerpt:
- - number of cases are pending adjudication between the children of the defendant inter se as well as inter se the defendants. 7. thus, by virtue of the abovesaid provision of law, the court at any stage of the proceedings can order either upon or without the application of either party and on such terms as may appear to the court to be just to add the name of a person whether as plaintiff or defendant, if the court is of the view that the presence of such persons before the court is necessary in order to enable it to effectively and completely adjudicate upon and settle all the questions involved in the suit. such addition of their names would lead to a complicated litigation and the court would have to go into the trial and decision of serious questions, which would be totally outside the purview of the suit and would also unnecessary prolong the adjudication of the case, as addition of such like persons in the array of defendants could continue without a final decision of the suit. 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. from the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. 11. as noted herein earlier, two tests are required to be satisfied to determine the question who is a necessary party, let us now consider who is a proper party in a suit for specific performance of a contract for sale. but, in equity, as well as at law, the contract constitutes the right, and regulates the liabilities of the parties; 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. ..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 18. that apart, there is another principle which cannot also be forgotten.aruna suresh, j.ia no. 9718/2006 and 12698/2006 (order 1 rule 10 cpc) in cs (os) no. 831/2006 1. vide this order i shall dispose of two applications one filed by naresh kumar, son of the defendant and other filed by smt. raj rani, wife of shri jai kishan, deceased son of the defendant seeking impleadment as defendants in this case. 2. the facts giving rise to filing of these two applications are that the property in suit i.e. khasra no. 8/1, 8/2, 311, 309, 321, 322, 323, portion of house no. vi, measuring 42 sq.yds. in length and 11 yards in width on the ground floor, two kothas and two bhukharies, half portion of property no. 168 (measuring 3 biswas), khasra no. 7/1, 7/2, 247/2, 248/275 and two kothies of poli a house no. 6 and other portion of plot no. 166 measuring 3 biswas towards west, khasra no. 276, 277 and a kotha on first floor towards west side and khasra no. 278 and one kotha on first floor of house no. vi towards east side, etc. (hereinafter referred to as 'suit property') was owned by mam chand, father of the defendant. after his death, the properties of mam chand were succeeded by his legal heirs, including the defendant. there has been a chain of litigation between the parties. a suit for partition was filed in between legal heirs of deceased mam chand. the said suit was compromised. in the suit, the defendant had given an undertaking that the shares of naresh and jai kishan would be fully protected after the partition was effected. both the applicants claim themselves to be co-sharers in their own right, in the suit premises which amar singh agreed to sell to the plaintiff. number of cases are pending adjudication between the children of the defendant inter se as well as inter se the defendants. since both the applicants claim their share in the suit property in their own right, these applications have been filed for their impleadment in the array of the defendants. 3. both the applications have been contested by the plaintiff contending inter alia that applicants are neither the bhumidar nor in possession of the land in dispute. hence, they are neither necessary nor proper party to the present suit, that the applications have been filed by the applicants in collusion with the defendant, to avoid execution of the sale deed in favour of the plaintiff. applicants, not being the bhumidar of the land of the defendant, have no right, title, interest or possession in the land in dispute in view of section 50 of delhi land reforms act. that the factum of said compromise was never disclosed by the defendant to the plaintiff and it was between the applicants and defendant and other family members, further he is not a party to any of the litigation between the applicants, the defendant and other family members, that as per the compromise in civil writ petition no. 279/89, suit property fell to the share of the defendant. after the said compromise, share of the defendant was mutually partitioned between the defendant and his sons and certain portion of the suit property had fallen to the share of naresh kumar and smt. raj rani. therefore, the applicants are neither necessary nor proper party to the present suit for its effective adjudication. hence, the applications deserve dismissal. 4. it is submitted by mr. ratnesh bansal, learned counsel for the applicants that since the interest of the applicants in the immoveable property are jeopardized because of the execution of the impugned agreement to sell by the defendant in favour of the plaintiff, to which he had no right, therefore, they are necessary and proper party to the present suit. 5. mr. rajiv k. garg, learned counsel for the plaintiff has argued that the question that needs to be decided in these applications is whether in a suit for specific performance of a 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 and since the applicants are claiming independent title in the suit property, they are neither necessary nor proper party to the present suit, and an effective decree can be passed in their absence as relief claimed by the plaintiff in the suit cannot be claimed against the applicants. he has submitted that under the circumstances, in view of order 1 rule 10 sub-rule (2) code of civil procedure (hereinafter referred to as 'cpc'), applications deserve dismissal. 6. order 1 rule 10 sub-rule (2) cpc reads as follows:(2) court may strike out or add parties.- the court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether 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.7. thus, by virtue of the abovesaid provision of law, the court at any stage of the proceedings can order either upon or without the application of either party and on such terms as may appear to the court to be just to add the name of a person whether as plaintiff or defendant, if the court is of the view that the presence of such persons before the court is necessary in order to enable it to effectively and completely adjudicate upon and settle all the questions involved in the suit. 8. plaintiff has filed a suit for specific performance of agreement to sell dated 26.11.2005 executed by the defendant in his favour for a total consideration of rs. 28,75,616/-. plaintiff claims that he has paid a sum of rs. 6,50,000/- at the time of execution of the agreement to sell by way of a receipt. the defendant had agreed to sell the suit property to the plaintiff claiming himself to be the bhumidar/absolute owner, occupier and in peaceful physical possession of the same. 9. the applicants have claimed their rights in the suit property as coparceners. they are stranger to the impugned agreement to sell. the question of jurisdiction of the court to invoke order 1 rule 10 cpc to add person who has not been made a party in the suit by the plaintiff, not arise unless the party proposes to be added, has direct legal interest in the dispute involved in the suit. a person can be legally interested in the answers to the controversies only if he can satisfy the court that it may lead to a result that will affect him legally. in a suit for specific performance, the court has to see that plaintiff has a right to claim the relief as claimed in the suit as against the applicants relating to the same subject matter i.e. the agreement to sell. the issue which is involved in a suit for specific performance, which needs to be adjudicated upon by the court is the enforceability of the contract entered into between the purchase and the vendor for sale of the contracted property and whether the vendor was ready and willing to perform its part of contract and whether the purchaser under the circumstances of the case is entitled to a decree of specific performance for a contract of sale against the vendor. 10. the applicants admittedly have based their claim on independent title of the contracted property. therefore, if the applicants are allowed or are added or impleaded in the suit as defendants, the scope of the said specific performance of the contract for sale would be enlarged from the suit for specific performance to a suit for title and possession, which is not permissible in law. such addition of their names would lead to a complicated litigation and the court would have to go into the trial and decision of serious questions, which would be totally outside the purview of the suit and would also unnecessary prolong the adjudication of the case, as addition of such like persons in the array of defendants could continue without a final decision of the suit. 11. the applicants, under the circumstances, being the stranger to the contract, cannot be allowed to be added so as to change the nature of suit from specific performance to a suit of different character, may be suit for title and possession. what is important for the court to look into the present suit is lis between the parties and the court is not empowered to decide if the applicants have acquired any title in the contracted property because, that is not the germane for just decision of this case i.e. for specific performance of the contract for sale. 12. a decree for specific performance of the contract for sale as passed would not affect the right, title or interest of the applicants in respect of the contracted property. therefore, the applicants are neither necessary nor proper party to be added in the present suit. besides, plaintiff cannot be forced to add party against whom he does not want to fight, unless it is a compulsion of the rule of law. 13. in kasturi v. iyyamperumal : (2005) 6 scc 733, in similar circumstances, wherein a suit for specific performance of a contract was filed by the applicant kasturi against respondents no. 2 and 3 for enforcement of agreement for sale, respondents no. 1, 4 to 11 filed applications claiming independent title and possession over the contracted property, to get themselves added in the suit as defendants, the apex court while allowing the appeal dismissed the applications for impleadment as defendants under order 1 rule 10 cpc, supreme court considered the scope of order 1 rule 10(2) cpc in extensor and observed: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. 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. 11. as noted herein earlier, two tests are required to be satisfied to determine the question who is a necessary party, let us now consider who is a proper party in a suit for specific performance of a contract for sale. for 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. therefore, for effective adjudication of the controversies involved in the suit, presence of such parties cannot be said to be necessary at all. lord chancellor cottenham in tasker v. small 1834 (40) er 848 made the following observations: (er pp.850-51) it is not disputed that, generally, to a bill for a specific performance of a contract of sale, the parties to the contract only are the proper parties; and, when the ground of the jurisdiction of courts of equity in suits of that kind is considered it could not properly be otherwise. the court assumes jurisdiction in such cases, because a court of law, giving damages only for the non- performance of the contract, in many cases does not afford an adequate remedy. but, in equity, as well as at law, the contract constitutes the right, and regulates the liabilities of the parties; and the object of both proceedings is to place the party complaining as nearly as possible in the same situation as the defendant had agreed that he should be placed in. it is obvious that persons, strangers to the contract, and, therefore, neither entitled to the right, nor subject to the liabilities which arise out of it, are as much strangers to a proceeding to enforce the execution of it as they are to a proceeding to recover damages for the breach of it. 13. from the aforesaid discussion, it is pellucid that necessary parties are those 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 proceedings and proper parties are those whose presence before the court would be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person.15. ...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....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 18. that apart, there is another principle which cannot also be forgotten. the appellant, who has filed the instant suit for specific performance of the contract for sale is dominus litis and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law, as already discussed above.... 14. section 19 of the specific relief act (hereinafter referred to as 'act') provides relief against parties and persons claiming under them by subsequent title. the applicants who seek addition as defendants in the suit for specific performance of the contract for sale are claiming independent title in the suit property and are not claiming any right under the defendant and therefore they do not fall in the category as enumerated in sub-section (a) to (e) of section 19 of the act. in other words, section 19 of the act is exhaustive on the point as to who are the parties against whom a contract for specific performance may be enforced. 15. the applicants not being a party to the agreement to sell cannot be a party to a suit for specific performance of the contract for sale. a decree if passed in this suit would not be binding on them and the applicants would be at liberty, either to obstruct the execution in order to protect their title and possession by taking recourse to the relevant provision of cpc, if they are available to them, or, file an independent suit for declaration and title of possession against the parties to the suit. if a decree for specific performance of the contract is passed in favour of the plaintiff and the sale deed is executed, he will have to sue the applicants for taking possession if they are in possession of the decretal property. 16. it is relevant to state here that the defendant, the applicants and defendants. other family members are litigating with each other in respect of the properties which fell to the share of defendant after partition of the property of mam chand in a suit for partition where the defendant and his brothers compromised their disputes. 17. hence, i find no merits in the applications and the same are accordingly dismissed. cs (os) no. 831/2006 case be listed before the regular bench for further directions on 13th january, 2010. parties are directed to appear before the concerned court on the date fixed.