The above Civil Revision Petition is filed against the Orders dated 29.06.2007 passed in I.A.No.232 of 2007 in O.S.No.139 of 2004 on the file of the Additional District Judge (Fast Track Court No.II), Salem.
2. The third party in I.A.No.232 of 2007, in O.S.No.139 of 2004 on the file of the Additional District Judge (Fast Track Court No.II), Salem, is the revision petitioner before this court. She is aggrieved by the order of the trial court dated 29.6.2007, dismissing the application filed by her under Order I Rule 10 C.P.C. to implead herself as the 14th defendant in the suit.
3. The first respondent herein, as plaintiff filed O.S.No.139 of 2004, for a judgment and decree, directing the defendants in the suit namely respondents 2 to 14 herein to perform their part of the contract and to execute the registered sale deed with due measurement free from encumbrance by receiving the balance price within the time fixed by the court or in default permit the plaintiff to deposit the balance sale price and to produce non-judicial stamp papers within the time fixed by the court and the court itself to execute the sale deed in favour of the plaintiff. The plaintiff also prayed for an alternative relief directing the defendants to return the advance sum of Rs.21.0 lakhs with interest at 21% per annum from the date of the agreement till realisation and also to create a charge over the suit property till realisation of the amount claimed in the alternative relief.
4. Pending suit, the third party i.e. the revision petitioner herein filed I.A.No.232 of 2007 under Order I Rule 10 C.P.C. to implead her as the 14th defendant in the suit. In the affidavit filed in support of I.A.No.232 of 2007, the revision petitioner herein, stated that she married the first defendant in the suit, the second respondent herein and she was living with him till 2001. Thereafter, she was treated cruelly by the first defendant and she was also driven out of the family house. She filed a suit in O.S.No.286 of 2006 on the file of the First Additional District Munsif, Salem, against the first defendant and prayed for the creation of a charge over the suit schedule property for the due payment of the maintenance amount. Though summons was served on the first defendant in O.S.No.286 of 2006, he did not appear in the court and therefore, an ex-parte decree was passed creating a charge over the suit property, for the due payment of the maintenance amount. According to the third party/the revision petitioner herein, as her suit was decreed ex-parte, creating a charge over the suit property, she is a necessary party in the present suit, as the plaintiff and the defendants in the suit are creating encumbrance over the suit property to deprive of her lawful claim for maintenance. Hence, she filed I.A.No.232 of 2007 for the aforesaid relief.
5. The plaintiff as first respondent in I.A.No.232 of 2007 filed a counter stating that the revision petitioner has got every right to claim her maintenance amount by filing an execution petition against her husband before the Execution Court. Therefore, the present petition filed by her to implead is not enforceable in law because the suit of the plaintiff is based on a contract entered into between the buyer and the seller. That apart, the decree obtained by the third party revision petitioner as against the first respondent is collusive in nature with an intention to prevent the plaintiff from getting on with the trial and also to drag the proceedings of the suit. Hence, they prayed for the dismissal of the impleading petition.
6. The first defendant also filed a counter in I.A.No.232 of 2007 stating that he has taken steps to file an application to set aside the ex-parte decree passed in O.S.No.286 of 2006 and the petitioner who is his wife is not a necessary party to decide the lis in O.S.No.139 of 2004.
7. The trial court by order dated 29.6.2007, dismissed I.A.No.232 of 2007 and aggrieved by the same, the third party filed the above revision petition under
Article 227 of the Constitution of India.
8. Heard the learned counsel for the revision petitioner and Mrs.Hema Sampath, the learned Senior counsel for the first respondent/plaintiff. I have also gone through the entire documents available on record.
9. The learned counsel for the revision petitioner contended that in view of the decree passed in O.S.No.286 of 2006, directing the first defendant in the present suit to pay a sum of Rs.1000/- per month to the third party towards maintenance till her life time and in default creating a charge over the suit property, the revision petitioner is a necessary and proper party in O.S.No.139 of 2004 as she is a person interested in the suit schedule property. In support of his submissions, the learned counsel for the revision petitioner relied on the following decisions:
1. 2005 (6) SCC 733 (Kasturi Vs Iyyamperumal and others)
2. 1995 (3) SCC 147 (Anil Kumar Singh Vs Shivnath Mishra @ Gadasa Guru)
3. 2006 (5) SCC 532 (Bhogadi Kannababu and others Vs Vuggina Pydamma and others)
4. 2001 (4) C.T.C. 730 (S.G.Kannappan Vs S.Murugesan and another)
5. 2007 (10) SCC 82 (Sumtibai and others Vs paras Finance Co.)
6. 1983 (1) SCC 18 (Khemchand Shankar Choudhari Vs Vishnu Hari Patil and others)
7. A.I.R. 1958 SC 394 (Saila Bala Dassi Vs Smt.Nirmala Sundari dassi and another)
10. Per contra, the learned Senior counsel for the first respondent contended that in a suit for specific performance of the sale agreement, executed between the parties, what is to be decided is whether there is a valid execution of a sale agreement and whether the plaintiff is always ready and willing to perform their part of the contract. To decide these issues, the revision petitioner is neither a necessary nor a proper party. Therefore, according to the learned Senior counsel, the revision petitioner could not be impleaded in the suit to enlarge its scope and her remedy lies elsewhere and not in this suit. Hence, the learned Senior counsel prayed for the dismissal of the revision petition.
11. I have considered the rival submissions carefully with regard to facts and citations.
12. In 2005(6) SCC 733 (cited supra), the Hon'ble Supreme Court held as under:
"7. In our view, a bare reading of this provision, namely, second part of order 1 Rule 10 sub-rule (2) C.P.C. 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 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 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.
9. We have carefully considered sub-sections (a) to (e) of
Section 19 of the Act. From a careful examination of the aforesaid provisions of clause (a) to (e) of the Specific Relief Act we are of the view that the parsons seeking addition in the suit for specific performance of the contract for sale who were not claiming under the vendor but they were claiming adverse to the title of the vendor do not fall in any of the categories enumerated in sub-sections (a) to (e) of
Section 19 of the Specific Relief Act.
10. That apart, from plain reading of
Section 19 of the Act we are also of the view that this section is exhaustive on the question as to who are the parties against whom a contract for specific performance may be enforced.
11. As noted hereinearlier, 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 Takser V.Small made the following observations:
"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."
13. In 1995(3) SCC 147 (cited supra), the Hon'ble Supreme Court held as under:
"8. The question is whether the person who has got his interest in the property declared by an independent decree but not a party to the agreement of sale, is a necessary and proper party to effectually and completely adjudicate upon and settle all the questions involved in the suit. The question before the court in a suit for the specific performance is whether the vendor had executed the document and whether the conditions prescribed in the provisions of the Specific Relief Act have been complied with for granting the relief of specific performance.
9. Sub-rule (2) of Rule 10 of Order 1 provides that the Court may either upon or without an application of either party add any party whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit. Since the respondent is not a party to the agreement of sale, it cannot be said that without his presence the dispute as to specific performance cannot be determined. Therefore, he is not necessary party."
14. In 2006(5) SCC 532 (cited supra), the Hon'ble Supreme Court observed as under:
"10. So far as the first submission of the learned counsel for the appellants is concerned, it is on record that the application for impleadment was allowed by the High Court which was affirmed by this Court by rejecting a special leave petition, which relates to impleadment of respondents 2 and 3 in the revision case. In an application for impleadment under Order 1 Rule 10 of the C.P.C., the only question that needs to be decided is whether the presence of the applicant 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 proceedings. Therefore, according to the learned counsel for the appellants, even if respondents 2 and 3 were added as parties, but by such addition it cannot be said that they were also entitled to succeed to the properties in question of late Suryanarayana and therefore entitled to evict the appellants.
11. It is true, as noted hereinabove, that in an application for impleadment under Order 1 Rule 10 C.P.C. the court would only decide whether the presence of the applicant 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 proceedings. But in the facts and circumstances of the present case, we are of the view that the question of strict proof whether respondents 2 and 3 were also entitled to evict the appellants from the properties may not be germane for decision of this case.
15. In 2001(4) C.T.C. 730 (cited supra), this Court observed as under:
"12. As stated already, the suit was filed for specific performance of agreement of sale entered into between the petitioner and the respondent herein and the issue to be decided in the suit is, whether the petitioner/plaintiff is entitled to the relief of specific performance as per the provisions of the Specific Relief Act and the defendant is liable to execute the sale deed. The relief sought for in the suit in the prayer portion is also for a decree in favour of the plaintiff for specific performance of an agreement of sale deed dated 27.11.1994 in his favour and for directing the defendant to execute the sale deed in favour of the plaintiff in respect of the suit property on receiving the balance sale consideration of Rs.15,000 from the plaintiff. For the issue to be resolved, the parties necessary are the parties to the agreement only.
13. In the given set of facts, as stated above, it cannot be said that without the presence of the proposed respondent, the dispute as to the specific performance cannot be determined and as such, he is not a necessary party. It is to be pointed out that the trial court has gone in elaboration as to the scope of
Section 52 of the Transfer of Property Act and the doctrine of lis pendens to the effect that the result of the suit binds not only the parties to the suit, but also the party, who purchased the property, pendente lite and relying on the decision reported in 1993(2) MLJ 395 held that the transfer pendent lite would be void or atleast voidable at the instance of the decree holder in a specific performance suit.
14. In the light of the above discussion and in view of the decision of the Supreme Court on the point in issue reported in 1995(3) SCC 147 which has taken into consideration not only Order 1, Rule 3 and 10(3) of the C.P.C., but also Order 22, Rule 10 and
Sections 15 and
16 of the Specific Relief Act and ultimately held that in a suit for specific performance, the subsequent purchaser is neither a necessary nor a proper party. I am of the considered view that the order of the trial court requires interference from this Court while exercising the revision jurisdiction under section 115 of the C.P.C."
16. In 2007(10) SCC 82 (cited supra), the Hon'ble Supreme Court held as under:
"4. The appellants are the legal representatives of late Kapoor Chand. A suit was filed by the respondent herein against Kapoor Chand for specific performance of a contract for sale. It was alleged that Kapoor Chand had entered into an agreement to sell the property in dispute to the respondent-plaintiff, M/s.Paras Finance Co. In that agreement Kapoor Chand stated that the property in dispute was his self-acquired property. During the pendency of the suit Kapoor Chand died and his wife, sons, etc. applied to be brought on record as legal representatives. After they were impleaded they filed an application under Order 22 Rule 4(2) read with order 1 Rule 10 C.P.C. praying, inter alia, that they should be permitted to file additional written statement and also be allowed to take such pleas which are available to them. The trial court rejected this application against which a revision was filed by the appellant which was also dismissed by the High Court. Hence this appeal by special leave.
5. We are of the opinion that a party has a right to take whatever plea he/she wants to take, and hence the view taken by the High Court does not appear to be correct."
17. In 1983(1) SCC 18 (cited supra), the Hon'ble Supreme Court held that "during pendency of a partition suit, transferee pendente lite of an interest in a part of the suit property, inspite of not being mentioned in the preliminary decree for partition, has a right to be impleaded as a party and has locus standi to claim equitable partition before the Collector in final decree proceedings under Sec.54 of the Transfer of Property Act, 1882".
18. In A.I.R. 1958 SC 394 (cited supra), the Hon'ble Supreme Court observed that as a purchaser pendente lite, a person will be bound by the proceedings taken by the party in whose favour the decree is passed in execution of her decree and justice requires that she should be given an opportunity to protect her rights.
19. In the light of the above judgments of the Hon'ble Supreme Court and this Court, if the facts of the present case are considered, I am of the considered view that the trial court has rightly dismissed the application filed by the revision petitioner.
20. Admittedly, the suit has been filed for the Specific performance of the sale agreement, dated 24.7.1997 and in that suit what is to be decided is:
1. Whether the sale agreement has been validly executed?
2. Whether the sale agreement is enforceable ?
3. Whether the plaintiff is ready and willing to perform their part of contract ? and
4. Whether the plaintiff is entitled to the equitable remedy of Specific performance ?
21. To decide these issues, as rightly pointed out by the learned Senior counsel for the first respondent, the revision petitioner is neither a necessary nor a proper party. The only contention of the revision petitioner is that, in a suit filed by her in O.S.No.286 of 2006 for maintenance against the first defendant, an ex-parte decree was passed creating a charge over the suit property and therefore, she is a necessary party in the present suit. I do not find any merits in the contention of the revision petitioner as the suit for the Specific performance has nothing to do with her suit and the present suit's scope cannot be enlarged by impleading the revision petitioner as a party. If at all the revision petitioner is aggrieved, it is open to her to agitate her rights in a separate proceedings in a manner known to law and she cannot be impleaded in the suit filed by the plaintiff for Specific performance.
S.RAJESWARAN,J vaan
22. Hence, I do not find any merits in the above revision petition and accordingly, the same is dismissed. No cost. Consequently, M.P.No.1 of 2007 for stay is also dismissed.
01.04.2009 Index: Yes/No Internet:Yes/No vaan To The Additional District Judge (Fast Track Court No.II), Salem.
Pre-Delivery Order in C.R.P.PD.No.2996 of 2007 and M.P.No.1 of 2007 Dated: 01.04.2009 26.08.2008 Per contra, the learned counsel for the respondent submits that the applications to re-open and recall could be filed at any time and even after the suit was posted for passing judgment. He submitted that the trial court exercised its discretion by allowing the applications in the interest of justice and also for complete adjudication of the disputes. He also pointed out that a cost of Rs.500/- was also imposed in each of the application and therefore, the orders of the trial court need not be interfered with under
article 227 of the Constitution of India as no grave injustice has been caused to the plaintiff/revision petitioner.
8. I have considered the rival submissions carefully with regard to facts and citations.