THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO CIVIL REVISION PETITION No.4815 of 2012 Date: 16-07-2014 Between :- S.Babaiah.
… Petitioner.
And
1. S.Saraswathi and others.
… Respondents.
Counsel for the petitioner : Sri A.Chandra Sekhar Counsel for respondents : Sri K.Suresh Reddy This Court made the following :-
THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO CIVIL REVISION PETITION No.4815 of 2012 ORDER:
This Revision is filed challenging the order dt.27-08- 2012 in I.A.No.167 of 2012 in O.S.No.142 of 2008 on the file of the Junior Civil Judge, Penukonda.
2. The petitioner herein is plaintiff in the suit. He filed the suit for specific performance of an agreement of sale dt.26-12-2007 executed by 7th respondent in his favour. While so, respondent Nos.1 to 6, who are children of 7th respondent, filed an application I.A.No.167 of 2012 in the suit under Order I Rule 10 CPC to implead them as defendant Nos.2 to 7 in the suit. They contended that the plaint schedule property and some other properties are joint family properties of respondents and that respondent Nos.1 to 6 have 1/7th share therein. They also alleged that 7th respondent is addicted to vices and since 7th respondent had no authority to execute the agreement of sale, they ought to be impleaded in the suit.
3. Counter affidavit has been filed by petitioner opposing the impleadment of respondent Nos.1 to 6. He contended that there is collusion between respondent Nos.1 to 6 and 7th respondent and only with a view to harass the petitioner and for dragging on the matter, this application is filed. He asserted that plaint schedule property is self-acquired property of 7th respondent and 7th respondent had purchased it for Rs.3,500/- under a sale deed dt.25-02-1987 and therefore 7th respondent had every right to alienate the said property as it’s absolute owner. The other allegations made by respondent Nos.1 to 6 were also denied.
4. By order dt.27-08-2012, the Court below allowed I.A.No.167 of 2012 on payment of costs of Rs.150/- to petitioner observing that addition of parties would not cause any prejudice to petitioner and would avoid multiplicity of litigation and enable the Court to comprehensively examine the material and decide the rights of parties thereto.
5. Challenging the same, this Revision is filed.
6. Heard Sri A.Chandra Sekhar, learned counsel for petitioner and Sri K.Suresh Reddy, learned counsel for respondent Nos.1 to 6.
7. The learned counsel for petitioner contended that the order passed by the Court below is erroneous and the Court below ought not to have allowed the said application. He contended that this being a suit for specific performance, whether property is joint family property or self acquired property is a matter which cannot be adjudicated here. He also placed reliance on the decisions of Supreme Court in Anil Kumar Singh Vs. Shivnath Mishra @ Gadasa Guru[1] and Kasturi Vs.
Iyyamperumal and others
[2]
.
8. The learned counsel for respondent Nos.1 to 6, refuted the said contentions. He contended that the order passed by the Court below is correct and did not warrant any interference by this Court in exercise of its Revisional jurisdiction. He contended that respondent Nos.1 to 6 are children of 7th respondent and the plaint schedule property being joint family property, 7th respondent could not have executed the agreement of sale dt.26-12-2007 in favour of petitioner. He therefore contended that impleadment of respondent Nos.1 to 6 in the suit would avoid multiplicity of litigation.
9. I have noted the submissions of both sides.
10. There is no dispute that petitioner had filed a suit for specific performance of an agreement of sale dt.26-12-2007 against 7th respondent. It is true that under Order I Rule 10(2) CPC, the Court below has got the power to add a party to the suit, but the condition precedent for doing so is that it must be satisfied that the presence of the party to be added would be necessary in order to enable the Court to effectually and completely to adjudicate upon and settle all the questions involved in the suit. Normally in a suit for specific performance, only parties to the agreement of sale can be impleaded. If there is an interse dispute between the defendant in the suit for specific performance and others who are not the parties to the agreement of sale, impleadment of such parties would widen the scope of the suit and convert the suit for specific performance of a contract of sale into a suit for deciding the rights of such parties vis-à-vis the defendant.
11. In Anil Kumar Singh (1 supra), a person who had obtained a subsequent interest as a co-owner of the property which is subject matter of a suit for specific performance by virtue of a decree obtained through a Court sought to be impleaded in the suit. The Court held that he is neither a necessary party nor proper party to the suit and he is not liable to be impleaded therein. It held that the question before the Court in a suit for specific performance is whether the vendor had executed the document and whether the conditions prescribed in the provisions of the Specific Relief Act,1963 have been complied with for granting the relief of specific performance. It observed that order I Rule 10(2) CPC would enable the Court to consider impleadment of a party if it would facilitate the effectual and complete adjudication of all questions involved in the suit and therefore impleadment of a party, who is not a party to the agreement of sale, cannot be permitted since his presence is unnecessary and the dispute as to specific performance can be determined even in his absence.
12. Similar view is expressed in Kasturi (2 supra). In that case, a third party who had based his claim on independent title and possession sought to get himself impleaded in a suit for specific performance of an agreement of sale. The Court 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 in specific performance and the same cannot be turned into a regular title suit.
13. In view of the above authoritative pronouncements of the Supreme Court, I am of the opinion that the Court below has erred in allowing the impleadment of respondent Nos.1 to 6 in the suit. Therefore, the said order is set aside and the Civil Revision Petition is allowed. It is made clear that it is open for respondent Nos.1 to 6 to file a separate suit to agitate the rights, if any, claimed in the plaint schedule property. No costs.
14. Miscellaneous applications pending if any, in this Civil Revision Petition shall stand closed.
JUSTICE M.S.RAMACHANDRA RAO
Date: 16-07-2014
vsv
[1] (1995) 3 SCC 147
[2] 2005(4) ALT 19 (SC)