G. Rethinaraj vs B. Vellaiammal

Sanjay Kishan Kaul, C.J.—The appellant before us is the first defendant in a suit for specific performance being the owner of the property. There is a prior history of litigation qua the suit property inasmuch as the appellant had availed of a loan against the said property, but failed to clear the loan. However, the appellant filed a suit seeking relief of redemption of simple mortgage, being C.S. No. 131 of 1999, in which a preliminary decree was passed on 25.02.2003. The appellant, thereafter, sought permission of the learned Single Judge for depositing the balance amount payable under the preliminary decree and for passing of the final mortgage redemption decree.

On the other hand, the mortgagee filed an application for setting aside the preliminary decree with an application to condone the delay in filing the same. Those applications are stated to have been dismissed by an order dated 14.03.2006, while granting permission to the appellant for depositing the balance amount of Rs. 7,96,496.32 as determined by the Advocate Commissioner appointed in the suit. The mortgagee, however, aggrieved by that order, filed O.S.A. Nos. 299 and 300 of 2006 and succeeded in the same vide a common order dated 11.01.2008. Now, it was the turn of the appellant to be aggrieved, who preferred Special Leave Petitions before the Hon''ble Supreme Court. Leave is stated to have been granted and Civil Appeals are still pending. Thus, as to whether the amount due under the mortgage stands finally satisfied or not is still in question before the Supreme Court.

Insofar as the present suit proceedings are concerned, the mortgagee has been arrayed as second defendant, though no relief is claimed except to the extent that if any amounts are found payable to the said mortgagee, the original plaintiff/first respondent has expressed willingness to pay the amount out of the balance sale consideration payable to the appellant.

Issues have been framed and one of the issues framed arises from the plea of the appellant that there is improper joinder of the second respondent before us as the second defendant in the suit, as they are not privy to the transaction. The appellant wanted this issue to be tried as a preliminary issue and sought the deletion of the second respondent from the array of parties. It is these two applications filed for the said purpose which have been dismissed by the common impugned order dated 21.04.2013.

We heard the learned counsel for the appellant and are surprised that it is not the second defendant who has filed any application for deletion from the array of parties, but the appellant, as first defendant, who has filed that application. This is, in the context of normally the plaintiff, being the dominus litus, for whom it is open to implead any necessary or proper party to the suit. In that sense, it is not the appellant who is the aggrieved party, but the second respondent who could have claimed that relief.

Learned counsel for the appellant contends that the impleadment of the second respondent is improper and it is a collusive act between the two respondents (being the plaintiff and the original second defendant) and the endeavour is only to embarass the appellant.

We fail to appreciate the aforesaid contention for the reason that undisputedly there is a cloud cast on the title of the property on account of proceedings initiated by the second respondent and the final settlement of accounts under the decree coming into question on account of the order of the Division Bench of this Court, which has been assailed by the appellant before the Hon''ble Supreme Court. If the appellant wanted to put a quietus to that issue, the appellant should have first moved for disposal of that appeal, which alone could put that controversy to rest. If the appellant could have succeeded, naturally impleadment of the second respondent becomes completely unnecessary. The first respondent as plaintiff has acted with caution to ensure that she does not get a paper decree in the suit for specific performance, in view of the alleged dues of the second respondent, who sought to re-open the issue of satisfaction of the claim under mortgage, as payable by the appellant.

Not only that, it is not as if the plea of the appellant has not been taken note of, but, in fact, the issue has been framed, that issue can be decided at the stage of trial. Whether, in such circumstances, an issue should be treated as a primary issue or not is really within the discretion of the trial Court and ought not to have given rise to the present appeals.

We are of the view that the judgment relied upon by the learned counsel for the appellant in Bharat Karsondas Thakkar Vs. Kiran Construction Co. and Others, , would, thus, not be applicable to the facts of the present case, which is a law for the proposition that in a suit for specific performance, the third party or a stranger to the contract cannot be impleaded by seeking amendment to the suit. In the facts of that case, in a suit for specific performance, endeavour was made to add parties in the partnership suit, who were found to be not necessary to be impleaded as that would completely change the nature and character of the suit from being a suit for specific performance of an agreement to one for declaration of title and possession, followed by prayer for specific performance of an agreement for sale entered into between the two parties.

The only circumstance in which we could have understood and appreciated the endeavour of the appellant to seek deletion of the second respondent as a party would have been in the eventuality of the appellant succeeding in the civil appeals before the Hon''ble Supreme Court and that course of action is always available to the appellant, if he so succeeds.

We, thus, dismiss the appeals with the aforesaid observations. No costs.