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Judgment
Md. Shabbar Rashidi, J.:-
The instant Civil Revision, at the behest of plaintiff in Other Suit No. 189 of 2018, is in assailment of Order No. 13 dated November 16, 2019 passed in connection with Other Suit No. 10 of 2019.
By the impugned order the learned 3rd Civil Judge (Senior Division), Midnapore, refused the prayer of the petitioner to be added as a party defendant in Other Suit No. 10 of 2019 and dismissed the petition filed on behalf of the present petitioner in this regard.
Facts giving rise to the instant proceeding is that Plot No. 544/956 appertaining to Mouza Cantonment Barpathar within Medinipur police station, originally belonged to one Ananta Chandra Bag and others. The said Ananta Chandra Bag and others granted a long term lease of the said properties to one Anil Kumar Sarkar by dint of registered ‘Patta’ dated September 5, 1950 and in such way, Anil Kumar Sarkar became absolute owner of the aforesaid properties.
In turn, Anil Kumar Sarkar sold out the aforesaid properties in favour of Shrimati Basanti Chattopadhyay for valuable consideration under a registered deed of sale dated November 12, 1957. The possession of the demised properties was handed over to the purchaser and Shrimati Basanti Chattopadhyay became absolute owner of such properties. After such purchase, Shrimati Basanti Chattopadhyay constructed a one storeyed building over the purchased property and her name was duly mutated in respect of such property. The said Shrimati Basanti Chattopadhyay died leaving behind her daughter Shrimati Suniti Ghosh nee Chattopadhyay as her only legal heir and successor. Shrimati Basanti Chattopadhyay also executed a will in respect of Plot No. 544/956 as well as other properties. Shrimati Suniti Ghosh nee Chattopadhyay applied for and was granted a letter of administration in respect of will executed by Shrimati Basanti Chattopadhyay by an order passed on December 14, 1977 by learned District Delegate, Medinipur in Letter of Administration Case No. 114 of 1972. In such way, Shrimati Suniti Ghosh nee Chattopadhyay acquired absolute right, title, interest and possession over Suit Plot No. 544/956.
The said Shrimati Suniti Ghosh nee Chattopadhyay, in turn, sold out the said properties to Ajit Kumar Bandhopadhyay for valuable consideration by dint of a registered sale deed dated October 22, 1981. Upon such purchase, the foresaid properties were duly mutated in the name of Ajit Kumar Bandhopadhyay in the revenue records of Medinipur municipality and he possessed the same by paying taxes in respect of Plot No. 544/956.
Plot No. 544/866 is situated adjacent east to the disputed plot. It belonged to one Sankar Prasad Mukhopadhyay. With a view to straighten the uneven boundary between the two plots, Ajit Kumar Bandhopadhyay and Sankar Prasad Mukhopadhyay exchanged certain portions of the two plots by a registered deed of exchange dated May 9, 1988. By such exchange, Ajit Kumar Bandhopadhyay received 104 Sq. Ft. of land in plot no. 544/866 whereas Sankar Prasad Mukhopadhyay received 104 Sq. Ft. in plot no. 544/956, as depicted in a map appended to such deed of exchange.
Proforma defendant nos. 6 and 7 in Other Suit No. 189 of 2018 are the legal heirs of Ajit Kumar Bandopadhyay, who died on August 24, 1994. Defendant nos. 1 and 2 in such suit, are the legal heirs of Sankar Prasad Mukhopadhyay. Proforma defendant nos. 6 and 7 in Other Suit No. 189 of 2018, acquired the land in dispute by way of a long term settlement given by the Government of West Bengal.
While in possession of the land in dispute, proforma defendant nos. 6 and 7 in Other Suit No. 189 of 2018 sold the same in favour of the petitioner/plaintiff in such suit for valuable consideration by dint of a registered sale deed dated September 26, 2013 and since purchase, the petitioner has been possessing the said lands by paying taxes etc. the property so purchased by the petitioner appertains to LR Plot No. 1414.
According to the case made out by the petitioner, owing to certain disputes and differences cropped up while cutting trees standing on the properties described in Schedule B of the plaint in Other Suit No. 189 of 2018, the petitioner came to know that defendant nos. 1 and 2 in such suit had entered into agreement for sale of B Schedule properties to defendant nos. 3, 4 and 5. The petitioner also came to know that under such agreement, property sought to be sold, appertained to plot no. 1414 which belongs to the petitioner. The petitioner allegedly tried to persuade defendant nos. 1 and 2 in such suit, but failed. Ultimately, the petitioner filed Other Suit No. 189 of 2018 seeking declaration of his right, title and interest over the properties described in Schedule ‘A’ of the plaint of such suit coupled with a decree for permanent injunction restraining defendant nos. 1 and 2 from transferring such properties to any third party more specifically defendant nos. 3, 4 and 5 in such suit.
In Other Suit No. 10 of 2019 filed by the opposite party no. 1, upon hearing of an application under Order 39 Rule 1 & 2 read with Section 151 of the Civil Procedure Code, 1908 and by an order passed on June 13, 2019, the defendants in such suit were restrained from transferring the suit properties to any other person till July 18, 2019. Subsequently, such order stood extended from time to time. Other Suit No. 10 of 2019 was filed by and between the parties to an agreement for sale, seeking specific performance of agreement of sale.
According to the case made out by the petitioner, opposite party no. 1 in collusion with opposite party no. 2 and her mother, by filing a separate suit being Other Suit No. 10 of 2019 has been striving to frustrate the claim of the petitioner in Other Suit No. 189 of 2018. The properties involved in the two suits are one and the same. In such circumstances, the present petitioner filed an application under Order I Rule 10 (2) of Civil Procedure Code, 1908 praying for being impleaded in Other Suit No. 10 of 2019. Such prayer of the petitioner was contested by opposite party no.1 by filing written objection to the petition filed by the petitioner. Upon hearing, the learned trial court, by the impugned order, rejected the petition so filed on behalf of the petitioner, refusing his prayer to be added as a party in Other Suit No. 10 of 2019.
At the time of hearing, learned advocate for the petitioner submitted that as a matter of general law, it is well settled principle of law that in a litigation for specific performance of contract, only the parties to contract, sought to be specifically enforced, are necessary and proper parties in such suit. Anyone, not a party to such contract, cannot apply to be added as a party in such proceeding. However, according to learned advocate for the petitioner such proposition of law is not applicable in the facts and circumstances of the case. His case is an exception to the general rule. It is submitted that the suit being Other Suit No. 10 of 2019 is a collusive suit filed with a view to upset the claim of the present petitioner in Other Suit No. 189 of 2018 having a bearing on his right, title and interest over the properties involved in both the suits.
Learned advocate for the petitioner further contended that the petitioner being purchaser of the suit property without notice of contract of sale and enjoying vested interest in the subject matter of the suit is a necessary party in a proceeding for specific performance. No effective order can be passed in such suit, in absence of the petitioner. In support of such contention, learned advocate for the petitioner relied upon (2005) 6 Supreme Court Cases 733 (Kasturi vs. Iyyamperumal and Others) and 2025 SCC OnLine SC 1015 (J.N. Real Estate vs. Shailendra Pradhan and Others).
Learned advocate for the petitioner also submitted that for the aforesaid reasons, learned trial court failed to consider the true perspective of the legal principles on the subject and came to an erroneous finding. The learned trial court was not justified in refusing the prayer of the petitioner to be added as a party in Other Suit No. 10 of 2019. As such, the impugned order is liable to be set aside.
On the other hand, learned advocate for the opposite party No. 1 submitted that one Bharati Mukherjee and Madhurima Roy Mukherjee entered into an agreement for sale of immoveable properties with opposite party no. 1 on May 22, 2019. However, the said Bharati Mukherjee and Madhurima Roy Mukherjee failed to perform their obligations in the agreement within the stipulated time. For such reason, opposite party no. 1 instituted Other Suit No. 10 of 2019 against them seeking specific performance of the contract of sale against the said Bharati Mukherjee and Madhurima Roy Mukherjee. Learned advocate for opposite party no. 1 admitted that prior to such suit; the present petitioner had filed Other Suit No. 189 of 2018 against the said Bharati Mukherjee and Madhurima Roy Mukherjee as well as others, with a prayer for declaration and injunction, which suit is still pending.
Learned advocate for opposite party no. 1 further submitted that the petitioner being a stranger to the agreement for sale dated May 22, 2019, has no locus to be impleaded in suit for specific performance of such contract. The said agreement was exclusively between opposite party no. 1, on one hand and Bharati Mukherjee and Madhurima Roy Mukherjee on the other. In Other Suit no. 10 of 2019, filed on behalf of opposite party no. 1 for specific performance of the agreement for sale dated May 22, 2019, the petitioner took out an application under Order I Rule 10 (2) of Civil Procedure Code for being impleaded as a party. According to learned advocate for opposite party no. 1, such an action on the part of the petitioner was a desperate attempt to stall the proceeding initiated by opposite party no. 1 in order to exasperate his claims in such proceeding i.e. Other Suit no. 10 of 2019.
Learned advocate for opposite party no. 1 also submitted that the petitioner is admittedly not a party in the agreement of sale dated May 22, 2019, sought to be specifically enforced in Other Suit no. 10 of 2019. The petitioner has also not been able to demonstrate his interest in the suit property involved in Other Suit no. 10 of 2019. The right, title and interest of the petitioner in such suit properties is yet to be decided in Other Suit no. 189 of 2018. In such view of the facts, according to learned advocate for opposite party no. 1, the petitioner is neither a necessary nor a proper party in Other Suit no. 10 of 2019. He contends that the learned trial court rightly rejected the application under Order I Rule 10 (2) of Civil Procedure Code, 1908 filed on behalf of the petitioner and rejected his prayer for being impleaded in such suit. Learned advocate for opposite party no. 1 stood by the impugned order. In support of his contentions, learned advocate for opposite party no. 1, placed reliance upon (2005) 6 Supreme Court Cases 733 (Kasturi vs. Iyyamperumal and Others), (2008) 13 Supreme Court Cases 658 (Bharat Karsondas Thakkar vs. Kiran Construction Company and Others), (1995) 3 Supreme Court Cases 147 (Anil Kumar Singh vs. Shivnath Mishra) and 2010 SCC OnLine Cal 2010 [Shew Prasad Jaiswal (dead) and Others vs. Mihir Kr. Sarkar (dead) and Others].
From the rival submissions made on behalf of the petitioner as well as opposite party no.1 and upon consideration of the materials placed before this court, it is evident that the present petitioner has filed Other Suit No. 189 of 2018 praying for a decree of declaration of his right and title coupled with that of permanent injunction over the suit properties, more specifically described in Schedule ‘A’ of the plaint in Other Suit No. 189 of 2018.
Copy of the plaint in Other Suit No. 189 of 2018 has been annexed with the instant revisional application. A perusal of the such plaint demonstrates that the suit was filed by the present petitioner seeking following reliefs, that’s to say:
(a)For declaration of his right, interest and possession in the
property described in Schedule ‘A’ of the plaint.
(b)For an order of permanent injunction restraining the Defendant No. 1 and 2 so that they may not transfer L.R. Plot No. 1414 of Mouza: Cantonment Barpathar to the Defendant No. 3 or 4 or 5 or to any other person.
(c)For an order of temporary injunction during pendency of the suit.
(d)For cost; and
(e)For other legal equitable reliefs.
According to the case made out by the petitioner, opposite party no. 1 herein, entered into an agreement with opposite party no. 2 and her mother on May 22, 2019 for purchase of suit plot. The mother of opposite party no. 2 died intestate on April 26, 2021. Although, opposite party no. 1. Shravan Kumar Agarwal was ready and willing to perform his part in the agreement, opposite party no. 2 and her mother failed and neglected to perform their part by executing and registering a deed of conveyance in favour of opposite party no.1. In such conspectus, opposite party no. 1 filed a suit against opposite party no. 2 and her mother for specific performance of the contract of sale dated May 22, 2019.
Such suit was registered as Other Suit No. 10 of 2019. In such suit, following reliefs were prayed by opposite party no. 1, namely:
(a)That a decree for specific performance of contract and for sale deed in respect of the suit property by the defendants in favour of the plaintiff may be passed;
(b)That if the defendants fail to execute and register the sale deed on receipt of balance consideration money of Rs. 57,00,000/- (Rupees Fifty Seven Lakhs) the same may be executed and registered by the Court and the plaintiff may be allowed to deposit Rs. 57,00,000/- (Rupees Fifty Seven Lakhs) in Court;
(c)That alternative in case there is any legal bar to get the sale deed from the defendants the decree for refund of the advance money of Rs. 4,00,000/- (Rupees Four Lakhs) may be passed;
(d)That a decree for interest @ 18% may be passed;
(e)That a decree for damages may be passed against the defendants;
(f)That an order of permanent injunction may be passed restraining the defendants from transferring the suit property, to any other person;
(g)That the costs of the suit may be decreed;
(h)That any other relief in law and equity to which the
plaintiff may be found entitled to may be decreed.
The present petitioner filed an application under Order I Rule 10 (2) of Civil Procedure Code, 1908 in Other Suit No. 10 of 2019 praying interalia, to be impleaded in such suit. It was the contention of the petitioner that he has interest in the suit properties involved in Other Suit No. 10 of 2019 which was pending adjudication in Other Suit No. 189 of 2018. Therefore, his presence in Other Suit No. 10 of 2019 was necessary for proper adjudication of the suit. However, such prayer of the petitioner was refused by the impugned order. The learned trial court noted that the issues involved in such suit was whether there was any agreement for sale and if the parties to such suit have performed their part in the contract of sale. For deciding such issues, presence of the petitioner was not at all desirable. He was neither a necessary nor a proper party, as he was not a party to the contract sought to be specifically enforced.
Learned advocate for the petitioner has relied upon paragraph 20 of Kasturi (supra), where the Hon’ble Supreme Court laid down that,
“20 [Ed.: Para 20 corrected vide Official Corrigendum No. F.3/Ed.B.J./78/2005 dated 5-9-2005.] . It was also argued on behalf of Respondents 1 and 4 to 11 that to avoid multiplicity of suits it would be appropriate to join Respondents 1 and 4 to 11 as party-defendants as the question relating to the possession of the suit property would be finally and effectively settled. In view of our discussions made hereinabove, this argument also which weighed with the two courts below has no substance. In view of the discussions made hereinearlier, the two tests by which a person who is seeking addition in a pending suit for specific performance of the contract for sale must be satisfied. As stated hereinearlier, first, there must be a right to the same relief against a party relating to the same subject-matter involved in the proceedings for specific performance of contract for sale, and secondly, it would not be possible for the court to pass effective decree or order in the absence of such a party. If we apply these two tests in the facts and circumstances of the present case, it would be evident that Respondents 1 and 4 to 11 cannot satisfy the above two tests for determining the question whether a stranger/third party is entitled to be added under Order 1 Rule 10 CPC only on the ground that if the decree for specific performance of the contract for sale is passed in absence of Respondents 1 and 4 to 11, their possession over the contracted property can be disturbed or they can be dispossessed from the contracted property in execution of the decree for specific performance of the contract for sale obtained by the appellant against Respondents 2 and 3. Such being the position, in our view, it was not open to the High Court or the trial court to join other cause of action in the instant suit for specific performance of the contract for sale, and therefore, the two courts below acted illegally and without jurisdiction in allowing the application for addition of parties in the pending suit for specific performance of contract for sale filed at the instance of Respondents 1 and 4 to 11. The learned counsel for Respondents 1 and 4 to 11, however, urged that since the two courts below had exercised their jurisdiction in allowing the application for addition of parties, it was not open to this Court to interfere with such order of the High Court as well as of the trial court. We are unable to accept this contention of the learned counsel for Respondents 1 and 4 to 11. As discussed hereinearlier, it is open to the Court to interfere with the order if it is held that two courts below had acted without jurisdiction or acted illegally and with material irregularity in exercise of their jurisdiction in the matter of allowing the application for addition of parties filed under Order 1 Rule 10 CPC. The question of jurisdiction of the court to invoke Order 1 Rule 10 CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct interest in the controversy involved in the suit. Can it be said that Respondents 1 and 4 to 11 had any direct interest in the subject-matter of the instant suit for specific performance of the contract for sale? In our view Respondents 1 and 4 to 11 had no direct interest in the suit for specific performance because they are not parties to the contract nor do they claim any interest from the parties to the litigation. One more aspect may be considered in this connection. It is that the jurisdiction of the court to add an applicant shall arise only when the court finds that such applicant is either a necessary party or a proper party.”
[Emphasis supplied]
Similarly, in the case of J.N. Real Estate (supra), relied on by the petitioner, the Hon’ble Supreme Court observed that,
“32.Having regard to the material on record, we are of the view that the High Court should not have interfered with the order passed by the Trial Court impleading the original defendant no. 8 (appellant herein) as one of the defendants in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. We say so because the genuineness of the transaction, if any, including the genuineness of the documents is to be looked into in the course of the trial. A party who is seeking impleadment may not be a necessary party but still, could be termed as a proper party. There is a fine distinction between a necessary party and a proper party. A necessary party is a person in whose absence no effective decree could be passed at all by the court. Whereas a proper party is one who though not a necessary party is a person whose presence would enable the court to effectively and adequately adjudicate upon all matters in dispute in the suit.
33.We need not say anything further in the matter. We may only say that insofar as the transaction between (Late) Mr. Sameer Ghosh and the original defendant no. 8 (appellant herein) is concerned, the same shall be a subject matter of trial. We do not express any opinion in this regard at this point of time. We may only say that the presence of the appellant in the suit is required for proper and effective adjudication of the dispute in the suit. We say so while giving additional regard to the fact that the original plaintiff has not opposed the impleadment of the original defendant no. 8 in his suit. We keep all contentions open for all the parties concerned to be canvassed before the Trial Court.”
As evident, the Hon’ble Supreme Court in J.N. Real Estate (supra), the plaintiff in the suit never objected to the impleadment of original defendant no. 8 in the suit. Hon’ble Supreme Court also took note of the order passed by learned trial court to the effect that,
“………………………………………………………………….From the observation of the case, it is also found that although the Issues were framed twice, there are still many Issues that need to be framed, in respect of which pleadings already exist. Therefore, today additional issues were framed and read to both the parties. Additional Issue Nos. 11 to 15 were framed. Issue No. 14 will be resolved as a primary issue.”
Taking note of such order passed by the learned trial court, the Hon’ble Supreme Court laid down that the presence of the appellant in the suit was required for proper and effective adjudication of the dispute in the suit. In the aforesaid case of J.N. Real Estate (supra), taking note of the observations made by the Hon’ble Supreme Court in Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd., (2010) 7 SCC 41, observed to the following,
“28.This Court in Mumbai International Airport (supra) was also of the view that different situations require the application of different facets of Order I Rule 10(2) and consequently, held that there was no conflict between the decisions of this Court in Kasturi (supra) and Sumtibai (supra). It was reiterated that that Order I Rule 10(2) CPC did not pertain to the ‘right’ of a non-party to be impleaded as a party but deals with the ‘judicial discretion’ of the court to strike out or add parties at any stage of the proceeding. In exercising this judicial discretion, courts must act according to reason and fair play and not according to whims and caprice.
29.It was observed that the court may exercise discretion in impleading a person who is a ‘proper party’ upon an application by a non-party to the suit for specific performance. If the court is of the view that the impleadment of such a proper party will alter the nature of the suit or introduce a new cause of action, it may either refuse to implead such person or order for his impleadment on certain conditions. However, even otherwise, the court would not be precluded from impleading a ‘proper party’ unconditionally in its discretion. The relevant observations rendered in Mumbai International Airport (supra) read thus:
“24.4If an application is made by a plaintiff for impleading someone as a proper party, subject to limitation, bona fides, etc., the court will normally implead him, if he is found to be a proper party. On the other hand, if a non-party makes an application seeking impleadment as a proper party and the court finds him to be a proper party, the court may direct his addition as a defendant; but if the court finds that his addition will alter the nature of the suit or introduce a new cause of action, it may dismiss the application even if he is found to be a proper party, if it does not want to widen the scope of the specific performance suit; or the court may direct such applicant to be impleaded as a proper party, either unconditionally or subject to terms. For example, if D claiming to be a co-owner of a suit property, enters into an agreement for sale of his share in favour of P representing that he is the co-owner with half-share, and P files a suit for specific performance of the said agreement of sale in respect of the undivided half-share, the court may permit the other co-owner who contends that D has only one-fourth share, to be impleaded as an additional defendant as a proper party, and may examine the issue whether the plaintiff is entitled to specific performance of the agreement in respect of half a share or only one-fourth share; alternatively the court may refuse to implead the other co-owner and leave open the question in regard to the extent of share of the defendant vendor to be decided in an independent proceeding by the other co-owner, or the plaintiff; alternatively the court may implead him but subject to the term that the dispute, if any, between the impleaded co-owner and the original defendant in regard to the extent of the share will not be the subject-matter of the suit for specific performance, and that it will decide in the suit only the issues relating to specific performance, that is, whether the defendant executed the agreement/contract and whether such contract should be specifically enforced.
25.In other words, the court has the discretion to either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party.”
Applying the ratio laid down in J.N. Real Estate (supra), I am of the view that in the suit filed by opposite party no. 1, being Other Suit No. 10 of 2019, a decree has been sought against opposite party no. 2 and another for specific performance of a contract of sale. The case made out by the present petitioner, as evident from the averments made in the petition under Order I Rule 10 (2) of Civil Procedure Code, what appears to me, is that if the learned trial court is obliged to decide upon the issues raised in such petition, the nature and character of the suit would surely be changed into a suit for declaration of title.
Incidentally, Kasturi (supra) was rendered with similar facts where a third party to a suit for specific performance of contract of sale, claiming independent title, sought to be impleaded in such suit. The Hon’ble Supreme Court in Kasturi (supra) laid down to the following:
“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 Tasker v. Small made the following observations: (ER pp. 850-51)
“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.”
(emphasis supplied)
……………………………………………………………………… ……………………………………………………………….
18.That apart, there is another principle which cannot also be forgotten. The appellant, who has filed the instant suit for specific performance of the contract for sale is dominus litis and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law, as already discussed above. For the reasons aforesaid, we are, therefore, of the view that Respondents 1 and 4 to 11 are neither necessary parties nor proper parties and therefore they are not entitled to be added as party-defendants in the pending suit for specific performance of the contract for sale.”
Similar principles were laid down in Bharat Karsondas Thakkar (supra), where the Hon’ble Supreme Court held that,
“27.Even if the bar of limitation is not taken into account, the plaintiff, namely, Respondent 1 herein, is faced with the ominous question as to whether the amendment of the pleadings could have at all been allowed by the High Court since it completely changed 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 a prayer for specific performance of an agreement of sale entered into between its assignee and the vendors of the assignees.
28.Along with that is the other question, which very often raises its head in suits for specific performance, that is, whether a stranger to an agreement for sale can be added as a party in a suit for specific performance of an agreement for sale in view of Section 15 of the Specific Relief Act, 1963. The relevant provision of Section 15 with which we are concerned is contained in clause (a) thereof and entitles any party to the contract to seek specific performance of such contract. Admittedly, the appellant herein is a third party to the agreement and does not, therefore, fall within the category of “parties to the agreement”. The appellant also does not come within the ambit of Section 19 of the said Act, which provides for relief against parties and persons claiming under them by subsequent title. This aspect of the matter has been dealt with in detail in Kasturi case. While holding that the scope of a suit for specific performance could not be enlarged to convert the same into a suit for title and possession, Their Lordships observed that a third party or a stranger to the contract could not be added so as to convert a suit of one character into a suit of a different character.”
In Anil Kumar Singh (supra), the Hon’ble Supreme Court noted to the following,
“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 a necessary party.”
In Shew Prasad Jaiswal (supra), a Coordinate Bench of this Court observed to the following,
“But the question is whether Chandan Dey is at all a necessary party to the suit. The present suit is purely a suit for specific performance of contract and it is purely based on the dispute between the parties to the contract and none else. I have stated earlier that Chandan Dey is none but may be an agent of the defendant and the plaintiff has no concern with him at all. Therefore, in a suit for specific performance of contract in view of the decisions reported in (1995) 3 SCC 147 and (2008) 3 ICC 494, such third party is not at all a necessary party or proper party in a suit for specific performance of contract between the two parties. The lis between the parties, can well be solved without impleading Chandan Dey as a party to the suit. The decisions referred to by Mr. Banerjee, I hold, are not helpful to the plaintiff in the instant situation. Therefore, I am of the view that the learned Trial Judge has rightly dismissed the application for addition of party.”
As noted above, in the case at hand, the petitioner claims an independent title in respect of the properties involved in Other Suit No. 10 of 2019, filed at the behest of opposite party no. 1 against opposite party no. 2. The said suit relates to specific performance of a contract of sale executed by and between opposite party no. 1 on one hand and opposite party no. 2 and another on the other. Admittedly, the present petitioner is in no way connected with the said agreement dated May 22, 2019, sought in such suit to be specifically enforced. The present petitioner, by being allowed to be impleaded in such suit, proposes to contest the rights claimed by him in respect of the properties involved in such suit. A separate suit, at the behest of the petitioner, is already pending in a competent court. As of now, the right and title of the petitioner qua the suit properties involved in Other Suit No. 10 of 2019, is yet to be decided. At this stage, if the petitioner is allowed to be impleaded in such suit, the nature and character of the suit would indeed change to a suit for declaration of title instead of a suit for specific performance of contract of sale. The petitioner was not a party to such contract.
Therefore, in view of the discussions made hereinbefore, I find no reason to interfere with the impugned order. The same is hereby affirmed. The instant revisional application is devoid of any merit.
Consequently, C.O. No. 2013 of 2021 is hereby dismissed, however, without any order as to costs. Connected applications, if any, shall also stand disposed of. Stay order, if any, shall stand vacated.
Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties on priority basis upon compliance of all formalities.