Eshwari Developers vs Sadashivareddy and Others

A.V. Chandrashekara, J—Heard the learned counsel for the parties. The matter is taken up for final hearing with their consult. The petitioners have been impleaded as defendants 4 and 5 in a suit in O.S. 2828/09 pending on the file of City Civil Judge, Bengaluru. The 1st respondent is the 1st plaintiff in the said suit filed for the relief of specific performance on the basis of agreement of sale stated to have been executed on 18-7-2008 by the 1st defendant-Ramesh Reddy in his favour. Respondents 2 and 3 are defendants in the said suit. These defendants have been brought on record on the ground that they have entered into a joint development agreement and all co-sharers of land bearing No. 7/3 of Kothnur village.

The learned Judge has allowed the said application of the ground that the joint development agreement was executed in favour of these petitioners during the pendency of the suit in O.S. 2828/09.

Per contra, learned counsel for the petitioner has opposed mainly on the ground that the scope of a suit filed for specific performance cannot be enlarged by adding persons who have independent title over the property. A suit had been filed by Shyamala, wife of Krishna Reddy-3rd defendant against defendants 1 to 3 and three ladies, viz. Sarojamma, Parvathamma and Hemavathi was dismissed, the regular appeal ended in a compromise between the parties. Therefore it is argued that the lis insofar as the present petitioners and vendors in question has come to an end. He has relied on a decision rendered by a Bench of three Judges of the Hon''ble Supreme Court in the case of Kasturi Vs. Iyyamperumal and Others, AIR 2005 SC 2813 : (2005) 2 CTC 676 : (2005) 4 JT 565 : (2005) 141 PLR 326 : (2005) 6 SCC 733 : (2005) 3 SCR 864 . What is held in the said decision is that in a suit for specific performance of a contract, the third party/stranger claiming independent title is neither a necessary party nor a proper party and therefore he is not entitled to be joined as defendant.

As could be seen from the facts of the said case, a third party wanted to come on record as additional defendant and that was opposed by the plaintiff. Ultimately it is held that third parties cannot come in a suit for specific performance and enlarge the scope of the suit. The said principle enunciated in the decision is aptly applicable to the facts of the present case. Therefore the approach of the trial Court in allowing the application is incorrect and improper and the same needs to be corrected by this Court. In the result, the petition is allowed. The order of the trial Court impleading the petitioners as defendants 4 and 5 is set aside.