Kuldeep Kumar vs Sewaram Virmani

Umesh Chandra Dhyani, J.—Applicant Kuldeep Kumar sought his impleadment as defendant in OS No. 13 of 2013, titled as Seva Ram Birmani and others vs. Smt. Gauri Khandelwal and another, which suit was instituted by the plaintiff for a decree of Specific Performance of Contract for directing the defendant to execute sale-deed as per agreement dated 16.08.2010. A prayer was also made for directing the defendants not go create third party interest in the suit property.

Learned Trial Court, relying upon various judgments, dismissed such an application holding that the position of the plaintiff was that of dominus litis. Aggrieved against the same, present Civil Revision is preferred.

The question is-who should be the defendant in a suit for Specific Performance of Contract ?

The object of Order 1 Rule 10 of the Code of Civil Procedure, 1908, is not to change the scope and character of suit by adding new parties or to enable them to litigate their own independent claims, but simply to help them to avoid litigation which might otherwise become necessary. There may arise cases where the court feels that in spite of the opposition of the plaintiff, it is necessary to add a person as defendant since in the absence of that person it finds itself helpless and unable to effectively and completely settle the matter in controversy and that it''s failure to do so will lead to multiplicity of proceedings.

The intendment and object of the provisions of Order 1, Rule 10 (2) C.P.C. to invest the Court with ample power and jurisdiction to strike out name of any party improperly joined or to add any person who ought to have been joined, or whose presence is necessary to enable the court to effectually adjudicate upon and settle the questions involved in the suit. The question, in the instant case, is-whether presence of third party (revisionist) is necessary or proper for an effective and final adjudication of a suit for specific performance of contract?

As a rule, the Court should not add a person as a defendant in a suit when the plaintiff is opposed to such option. The reason is that the plaintiff is dominus litis. He is the master of the suit. He cannot be compelled to fight against the person, against whom, he does not wish to fight or against whom he does not claim any relief. The theory of dominus litis should not however be over stretched.

It was held by Hon''ble High Court of Allahabad in Gauri Sharma and anther vs. Dinesh Chandra Gupta and another, 2002 (2) ARC 477, that the title or ownership of a party cannot be decided in a suit for Specific Performance of Contract.

It was held by the Hon''ble Apex Court in Bharat K. Thakkar vs. M/S. Kiran Constructions Company, 2008 (2) Supreme 919, that a third party does not fall within the category of ''parties to the agreement''. Scope of 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, therefore, could not be added so as to convert a suit of one character into a suit of a different character.

The contention of learned counsel for the revisionist is that the disputed property is the joint property of the revisionist and is his brother, who has died.

Learned counsel for the respondents, on the other hand, contended that the revisionist has also filed a suit for cancellation of agreement and he can get both the suits clubbed. Since it is not a title suit, therefore, efficacious remedy is available to the revisionist.

Learned counsel for the revisionist further contended that stay order was in operation against the present respondents for alienating the property. The seller was fully aware that he was not the sole owner of the property, which is a joint property. Even if such contention of the revisionist is accepted, the fact remains that the suit instituted by the plaintiff and others (respondents herein) is not a title suit. It is a suit for specific performance of contract, in which presence of the revisionist is not required. He has already filed as suit for cancellation of agreement and therefore, the appropriate remedy for him would be to move for consolidation of suits under Order IV-A (Uttar Pradesh Amendment) of the Code of Civil Procedure, 1908. There appears to be no infirmity in the impugned order dated 13.03.2014 passed by learned Civil Judge, Senior Division, Haridwar.

Civil Revision is accordingly dismissed summarily with the liberty to the revisionist to seek appropriate remedy available to him under Order IV-A, C.P.C. (U.P. Amendment) for consolidation of suits.