The petitioner has filed this civil revision petition assailing the fair and decreetal order dated 16.09.2010 made in I.A.No.294 of 2010 in O.S.No.147 of 2009 on the file of the learned District Munsif Court, Ranipet.
2. The facts in a nutshell are as under: The petitioner herein is the plaintiff in the suit O.S.No.147 of 2009 filed, inter alia, seeking the following reliefs: (a) directing the fourth respondent (defendant) to execute the necessary sale deed in favour of the petitioner (plaintiff) on the basis of the agreement dated 29.6.2009; (b) to put the petitioner (plaintiff) in possession of the properties; (c) to permit the petitioner to deposit the balance sale consideration amount into Court; and (d) to restrain the fourth respondent by way of permanent injunction not to create any encumbrance over the properties.
3. The fourth respondent (defendant) filed a written statement refuting the plaint averments and prayed for dismissal of the suit.
4. Pending suit, the respondents 1 to 3, who are third parties to the agreement, filed I.A.No.294 of 2010 stating that after the demise of their father, who is the absolute owner of the property, the suit property was jointly inherited by the respondents 1 to 4 and the same is yet to be divided and the patta also jointly stands in the name of respondents 1 to 4 and, therefore, they prayed for their impleadment in the suit.
5. The Court below, by order dated 16.12.2010, allowed the application filed by respondents 1 to 3 seeking impleadment as party defendants to the suit.
6. Assailing the above said order, the present revision petition is filed by the petitioner plaintiff.
7. The learned counsel appearing on behalf of the petitioner plaintiff submitted that inasmuch as the suit is filed for specific performance of the sale agreement, there is no necessity to go into the title of the suit property and, therefore, the Court below erred in impleading respondents 1 to 3, more so, when the said respondents have not executed the suit sale agreement and no relief is sought against them. To fortify the said plea, he placed heavy reliance on a decision of this Court in Leelavathi v. Sri Venkateswara Finance and others, (2009) 7 MLJ 761.
8. I heard Mr.P.Mani, learned counsel for the petitioner and perused the documents available on record.
9. The point that arises for consideration is whether the trial Court was right in ordering impleadment of respondents 1 to 3 as defendants in the suit.
10. The grievance of respondents 1 to 3 before the trial Court was that the suit property jointly belongs to them and the fourth respondent. According to the respondents 1 to 3, for proper adjudication of the suit, respondents 1 to 3 are necessary parties and they will have to heard.
11. On the other hand, it is the plea of the petitioner that if really respondents 1 to 3 have any right over the suit property, they have to file separate proceedings and their alleged right cannot be decided in the present suit. Since respondents 1 to 3 were not parties to the suit agreement, there is no necessity to implead them as defendants in the suit.
12. I had an occasion to deal with an identical issue in Bagyalakshmi and others v. Kanagaraj and others, 2017 (1) MWN (Civil) 647, wherein, I have held as under:
22. On fair reading of the above said Judgments cited supra, for the impleadment of a Third party, in a Suit for Specific Performance, there must be a right to some relief against the party seeking impleadment, in respect of the controversies involved in the proceedings. Further, the following tests must be satisfied to implead a Third party in a Suit for Specific Performance:
(a) that there must be a right to some relief against such party in respect of the controversies involved in the proceedings; and
(b) that his presence should be necessary to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the Suit.
Impleadment of a Third party cannot be allowed to change the character or the nature of the Suit filed for Specific Performance of an Agreement for Sale. When the Plaintiff in the Suit for Specific Performance of the Agreement for Sale is the 'dominus litus' he cnanot be forced to add parties, against whom he does not seek any relief, unless it is a compulsion of the rule of law.
......
24. Apart from this, in a Suit for Specific Performance of a Contract for Sale the lis between the Purchaser and the Vendor shall only be gone into and it is also not open to the Court to decide whether the Third party have acquired any title and possession of the contracted property as that would not be germane for decision in the Suit for Specific Performance of the Contract for Sale. ...... (emphasis supplied)
13. In Bharat Karasondas Thakkar v. Kiran Construction Co. and others, reported in 2008 (5) MLJ 424 (SC), the Hon'ble Supreme Court held as follows:
A Third party or a stranger to a contract cannot be added as a party to a Suit for Specific Performance. The scope of a Suit for Specific Performance could not be enlarged to convert the same into a Suit for title and possession. A Third party or a stranger to the Contract could not be added so as to convert a Suit of one character into Suit for a different character. (emphasis supplied)
14. The Hon'ble Supreme Court in the case of Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd., (2010) 7 SCC 417 while dealing with an argument of a conflict between the decisions in Kasturi v. Iyyamperumal, reported in AIR 2005 SC 2813 and Sumtibai and others v. Paras Finance Co., Mankanwar, reported in 2007 (7) Supreme 2010, held as under:
"18. In Kasturi, this Court reiterated the position that necessary parties and proper parties can alone seek to be impleaded as parties to a suit for specific performance. This Court held that necessary parties are those persons in whose absence no decree can be passed by the court or those persons against whom there is a right to some relief in respect of the controversy involved in the proceedings; and that 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.
19. Referring to suits for specific performance, this Court in Kasturi, held that the following persons are to be considered as necessary parties:
(i) the parties to the contract which is sought to be enforced or their legal representatives;
(ii) a transferee of the property which is the subject matter of the contract. This Court also explained that a person who has a direct interest in the subject-matter of the suit for specific performance of an agreement of sale may be impleaded as a proper party on his application under Order 1 Rule 10 CPC. This Court concluded that a purchaser of the suit property subsequent to the suit agreement would be a necessary party as he would be affected if he had purchased it with or without notice of the contract, but a person who claims a title adverse to that of the defendant vendor will not be a necessary party.
20. The first respondent contended that Kasturi held that a person claiming a title adverse to the title of defendant vendor, could not be impleaded, but the effect of Sumtibai would be that such a person could be impleaded; and that therefore, the decision in Sumtibai is contrary to the larger Bench decision in Kasturi.
21. On a careful consideration, we find that there is no conflict between the two decisions. The two decisions were dealing with different situations requiring application of different facets of sub-rule (2) of Rule 10 of Order 1. This is made clear in Sumtibai itself. It was observed that every judgment must be governed and qualified by the particular facts of the case in which such expressions are to be found; that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision and that even a single significant detail may alter the entire aspect; that there is always peril in treating the words of a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. The decisions in Ramesh Hirachand Kundanmal v. Municipal Corpn. of Greater Bombay (1992) 2 SCC 524 and Anil Kumar Singh v. Shivnath Mishra (1995) 3 SCC 147 also explain in what circumstances persons may be added as parties.
22. Let us consider the scope and ambit of Order 1 Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice.
......
26. If the principles relating to impleadment are kept in view, then the purported divergence in the two decisions will be found to be non-existent. The observations in Kasturi (2005) 6 SCC 733 and Sumtibai (2007) 10 SCC 82 are with reference to the facts and circumstances of the respective cases. In Kasturi (2005) 6 SCC 733 this Court held that in suits for specific performance, only the parties to the contract or any legal representative of a party to the contract, or a transferee from a party to the contract are necessary parties. In Sumtibai (2007) 10 SCC 82 this Court held that a person having semblance of a title can be considered as a proper party. Sumtibai (2007) 10 SCC 82 did not lay down any proposition that anyone claiming to have any semblance of title is a necessary party. Nor did Kasturi (2005) 6 SCC 733 lay down that no one, other than the parties to the contract and their legal representatives/transferees, can be impleaded even as a proper party."
(emphasis supplied)
15. Even if respondents 1 to 3 have a semblance of right over the suit property, as far as the present suit is concerned, they are third parties, being strangers to the contract. If respondents 1 to 3 were added as defendants in the suit, definitely the character and/or nature of the suit filed by the petitioner for specific performance of an agreement for sale would be changed. Since the present suit being one for specific performance, the only issue to be decided is about the enforceability of the agreement in question. The alleged right of the respondents 1 to 3 pertaining to the suit property is altogether a different matter to be agitated by them in appropriate proceedings. Such being the position, this Court is of the view that the Court below had committed a serious error in impleading respondents 1 to 3 as parties to the suit.
16. For the foregoing reasons, the order of the trial Court allowing the application for impleadment of respondents 1 to 3 in the pending suit for specific performance of contract for sale is liable to be set aside.
In the result, the revision is allowed the order dated 16.09.2010 made in I.A.No.294 of 2010 in O.S.No.147 of 2009 by the learned District Munsif, Ranipet, is set aside. No costs. Consequently, connected miscellaneous petition is closed.
21.02.2017 vs Note:Issue order copy on 28.09.2018 Index : Yes/No To The District Munsif, Ranipet.
M.V.MURALIDARAN, J.
vs C.R.P.(PD) No.884 of 2011 and M.P.No.1 of 2011 21.02.2017