Sanjogta Jain vs Keemti Lal Jain and Others

Arun Kumar Goel, J.—There cannot be any other better example than the present fine of judicial delays. Age-old saying that 'Justice

Delayed is Justice denied' is clearly reflected when a reference is made to the file of the trial Court which was summoned by this Court in this

revision. By judicial process as well as on account of technicalities of law, a suit that was filed more than twenty years ago is still at the stage of

defendants' witnesses. To be precise it may be noted that plaint in the instant case was filed on 10-6-1980 and record of the case further shows

that issues were framed on 12-12-1980, Case was ordered to be listed for the first time for plaintiffs' evidence on 14-1-1980 (it should be 1981).

After the evidence of plaintiffs was closed on 27-5-1986 case is being listed for defendants' evidence. It is because of such like law's that the

people are losing faith in the system which is already over-burdened and may be if this state of affairs continues, day is not far off when it will crack

under its own weight. Leaving the matter here only let this revision be dealt with now.

A suit for specific performance was filed by Keemti Lal Jain and Shashi Pal Jain (Plaintiffs) Respondents 1 and 2 in this revision petition, against

Balbir Kumar Jain and Koshalaya Devi Jain (Defendants) Respondents 3 and 4 in this revision petition. As already observed, plaint was filed on

10- 6-1980 and this suit is pending trial before the trial Court. Sanjogta Jain, petitioner in the present revision petition, is the daughter of Smt.

Koshalaya Devi Jain and sister of Balbir Kumar Jain (defendants). This suit was based on an agreement to sell purported to have been executed

by Respondents 3 and 4 on 23-2-1978. whereby the property described in it was agreed to be sold for a consideration of Rs. 18,000/- by them

to Respondents 1 and 2 (plaintiffs). Out of the agreed sale consideration according to Respondents 1 and 2 a sum of Rs. 3,000/- was received as

an advance. According to Respondents 1 and 2 on the failure of the Respondents 3 and 4 to execute the sale deed in question and get it registered

they were constrained to file the suit.

When this suit was pending trial, Respondents 3 and 4 were called upon to produce their evidence at their own risk and responsibility. Since

then also the matter is pending for the evidence of defendants-respondents 3 and 4. Amongst other things. Respondents 3 and 4 were also

permitted to examine two of the witnesses who were residing at Kapurthala and Delhi, on open Commission. When the case was in the process of

evidence of the Respondents 3 and 4, petitioner Sanjogta Jain filed an application before the trial Court with a prayer for impleading her as a

defendant in the suit, This application was contested and resisted by the Respondents 1 and 2, plaintiffs. Trial Court after hearing the parties has

dismissed the same vide order dated 10-7-1996, hence this revision by her.

This revision was filed on 1-10-1996, record was summoned, therefore, proceedings remained stayed.

Shri Johal, learned counsel appearing for the petitioner, urged that his client is a necessary party and suit can't proceed in her absence. He

further pointed out that petitioner is a Class I heir of late Kasturi Lal and thus has got interest in the property, as such in her absence no effective

decree can be passed. These pleas have been controverted on behalf of respondents 1 & 2, Shri Wazir, learned counsel appearing for

respondents 1 & 2, submitted that this application has been filed at the behest as well as benefit of respondents 3 & 4, who are close relations of

the petitioner. This application is nothing but an abuse of process of law and the Court actuated with the sole purpose to delay the already

protracted litigation between the parties before the trial Court.

Learned counsel appearing for the parties were not at variance that admittedly petitioner is not a party to the agreement in question, specific

performance whereof is sought for by a decree for which suit has been filed by the respondents 1 & 2 against respondents 3 & 4. It is in this

background that it has to be determined whether the petitioner is a necessary party or not. Reliance is placed by Shri Johal on the following cases :

(1) M. Veera Raghaviah Vs. M. China Veeriah and Another, .

(2) AIR 1990 Mad 243, Mookkammal v. Chitravedivammal.

(3) Bala Narasimha and Others Vs. Gangaputra Co-operative Housing Society and Others, .

(4) AIR 1994 P&H. 365, Atul Sharma v. Gurinder Singh, and

(5) K.S. Abraham Vs. Mrs. Chandy Rosamma and Others, .

On the other hand, Shri Wazir, learned counsel appearing for respondents 1 & 2, has placed reliance on the following cases :

(1) The New Brahma Kshatriya Co-operative Housing Society Ltd. Vs. Govindlal Narbheram Thiakore and Others, .

(2) Panne Khushali and Another Vs. Jeewanlal Mathoo Khatik and Another, .

(3) Ram Bilash Pandey and Others Vs. Jai Narayan Gupta and Others, and

(4) Krishan Lal and Others Vs. Tek Chand and Others, .

These are being discussed hereinafter.

In the case of M. Veera Raghaviah Vs. M. China Veeriah and Another, reliance was placed by Shri Johal, learned counsel appearing for

petitioner, on para 25 wherein it has been held that where father and his sons were members of a joint family and the father entered into an

agreement to sell the joint family property to a third party and the agreement was found collusive transaction and not binding on the sons, specific

performance could not be ordered even in regard to father's share. This decision is wholly inapplicable to the facts of the present case.

Similarly, the decision in the case of Mookammal Vs. Chitravadivammal and Another, does not apply at all so far facts of the present case are

concerned. It is a case of impartible assets while dealing with Section 23 of the Hindu Succession Act (1956). Its perusal shows that under what

circumstances a female member is entitled to sue for partition and possession of her share in the property. Again reliance placed on the decision of

Punjab & Haryana High Court in the case of Atul Sharma and Another Vs. Gurinder Singh and Others, on behalf of the petitioner is of no benefit

to her. Reason being that petitioner is admittedly a married female residing with her husband, she cannot be a member of the co-parcenary, as such

in no case her rights can be put at part with that of a coparcener so as to hold that by virtue of being a member of the co-parcenary she is a

necessary party to the suit out of which present revision has arisen.

As already observed, petitioner is a married lady, she has neither a right of residence in the dwelling house which is only available to a female

heir i.e. a daughter. In case she is either unmarried or has been deserted or has separated from her husband or is a widow. None of these

situations admittedly exists in the present case. Similarly, petitioner is neither a person claiming under earlier agreement of sale in her favour

muchless being in possession of the suit property, therefore, she is not a necessary party, as such her case is not advanced even by the decision of

Andhra Pradesh High Court in the case of Bala Narasimha and Others Vs. Gangaputra Co-operative Housing Society and Others, .

For the reasons set out hereinabove as well as in view of the fact that petitioner is admittedly not a party to the agreement in question specific

performance whereof is sought for, it cannot be said that she is either a necessary or a proper party. This position is further reinforced from the fact

that respondents 1 & 2 - Plaintiffs have opposed her application for impleadment as a party before the trial Court and are even no opposing her

tooth and nail.

On the other hand, few decisions directly relating to the matters concerning specific performance in the circumstances like those of the present

case, need to be noted, which were relied upon by Shri Wazir, learned counsel appearing for the respondents 1 & 2.

In the case of The New Brahma Kshatriya Co-operative Housing Society Ltd. Vs. Govindlal Narbheram Thiakore and Others, what was

observed and is relevant in the context of present case was in the following terms :--

6.""............................

The parties to the agreement are the plaintiff and defendant No. 1. The plaintiff is willing to take the risk and he can get whatever title his vender

has. The plaintiff is willing to take such title which his vendor has. A simple suit for specific enforcement of an agreement between the plaintiff and

the defendant No. 1 cannot be permitted to be converted into a suit for establishing title and that too against the wish of the plaintiff. In view of the

peculiar facts of this case, it cannot be said that opponents Nos. 2 and 3 are necessary parties to the suit or their presence is necessary to

adjudicate upon all the questions involved in the case.

A Full Bench of the Madhya Pradesh High Court in the case of Panne Khushali and Another Vs. Jeewanlal Mathoo Khatik and Another, was

called upon to decide the following question :

In view of the controversy involved, the question for decision by this Bench is formulated thus :

Whether in a suit for a specific performance of a contract for sale, instituted by a purchaser against the vendor, a stranger to the contract, who

contending that the contracted property is a joint family property of which he is also the co-owner, wants to intervene in the suit, is entitled to be

added as a party.

After examining the case law including decisions of the Supreme Court reported in Razia Begum Vs. Sahebzadi Anwar Begum and Others, and

Deputy Commr., Hardoi, in charge Court of Wards, Bharawan Estate Vs. Rama Krishna Narain and Others, the aforesaid question was answered

in para 16 in the following terms :

Strangers to the contract making a claim adverse to the title of the defendant (vendor) contending that they are the co-owners of the contracted

property are neither necessary nor proper party and are therefore, not entitled to be joined as parties to the suit.

Decision in this case is very near and akin to the facts of the present revision petition.

Again in almost identical circum stances as of the present revision, in the case of Ram Bilash Pandey and Others Vs. Jai Narayan Gupta and

Others, it was held as under:

Ordinarily a plaintiff to a suit is dominus litis. It is for him to decide the forum where the suit is to be instituted and the persons who have to be

impleaded as a party. His choice as to the place of institution of the suit or the parties to it can only be altered or interfered with by the Court under

powers given to it by the statute. . . .

Now the question as to whether the property had been acquired by the defendant-opposite party 3 with joint family property, was wholly

foreign to the scope of the suit. On the allegations made in the plaint and in the written statement filed by opposite party 3, the adjudication of this

question was not necessary. It cannot, therefore, be said that the intervener-applicant were necessary parties to the suit. The only question which

requires examination is whether they fall under the category of proper party.

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The Full Bench of the Madhya Pradesh High Court, after a careful examination of the various decisions of different Courts, came to the conclusion

that the interveners were neither necessary parties and proper parties. They could not be given the benefit of Order 1, Rule 10(2) of the Code. It

accordingly turned down the request of the interveners to be impleaded as parties to the suit for specific performance.

As already observed earlier, a party to a suit cannot be thrust on an unwilling plaintiff, unless otherwise provided by law. The lis is between the

purchaser on one hand and the vendor on the other except such unusual cases as are referred to in the case of The New Brahma Kshatriya Co-

operative Housing Society Ltd. Vs. Govindlal Narbheram Thiakore and Others, , no other person is entitled to be impleaded as a party to the suit.

In case the intervener-applicants' prayer for impleadment had been allowed the result would have been to convert the lis as a dispute between the

defendants inter se. At all events the controversy in the suit would have been unnecessarily enlarged by the introduction of facts with which the

plaintiff would have no direct concern.

and consequently revision petition was dismissed.

In the case of Krishen Lal v. Tek Chand AIR 1997 P&H 197 (supra). Division Bench of the Punjab & Haryana High Court while examining

plea of a person not party to agreement to sell who claimed to be joint owner of the suit property, held that such a party is not entitled to be

impleaded in a suit for specific performance of contract of sale. Observations made in this behalf in para 4 and what was held in para 13 was in the

following terms :-

In a simple suit for specific performance of a contract for sale a decree sought against the defendant is for the purpose of enforcement of the

contract entered into between the executants. No relief is sought against strangers to the agreement for sale and, indeed, there is no right of relief in

such a suit against a person, who is not 3 party to the agreement. The question involved in the suit does not relate to any liabilities or rights of the

strangers in the property in dispute. In such a case, the plaintiff would, in the event of his getting a decree for specific performance, get executed a

sale deed which will bind only the executants thereof, namely, the plaintiff and the defendant and would not affect the position of persons who are

not parties to the agreement. Section 19 of the Specific Relief Act clearly lays down that specific performance of a contract may be enforced

against either party thereto. So, in such a suit a person who is not a party to the agreement for sale is neither a necessary nor a proper party. It is

well recognized that the plaintiff is the dominus litus in a suit. He should not, unless the provisions of any statute so require, be enforced to fight

against a person against whom he does not claim or seek any relief. The scope of the suit ought not to be enlarged and the suit turned into a title

suit between one of the either parties to the contract and a stranger to the contract. The provisions of Sub-rule (2) of Rule 10 of Order 1, Civil

P.C. empower the Court to direct that any person who ought to have been joined as a plaintiff or defendant or whose presence before the Court

may be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all questions involved in the suit be added

as parties. The crucial test is that the presence of"" such a person should be necessary to settle the questions involved in the suit. In a suit for specific

performance the questions involved in the suit are the execution of the contract for sale, the readiness and willingness of the plaintiff to perform his

part of the contract and the refusal or inability of the defendant to execute the contract. For settling these questions the presence of strangers who

arc not parties to the contract is not necessary. It is not even proper. A person who claims title adverse to the parties to the contract is not a

necessary or a proper party. No relief is sought against such a person. The addition of such a person will enlarge the scope of the suit and change

its nature and turn it into a title suit. This is not the object of Sub-rule (2) of Rule 10 of Order 1 Civil P.C. The provisions of Rule 10 are ex facie

enabling and clearly indicate the conditions for the exercise of that power. It is only when the Court comes to the conclusion that for the purpose of

full adjudication of the matter in issue, a party which is not added is necessary that the provisions of Sub-rule (2) of Rule 10 are attracted. It is,

thus, plain that unless a party proposed to be added has directly an interest in the controversy and its adjudication, the power cannot be invoked.

In the result we are of the view that the preponderance of judicial opinion in the country is in favour of the view that in a suit for specific

performance of a contract of sale, a person not party to the agreement to sell, and claiming to be joint owner of the subject-matter of the suit, is not

entitled to be impleaded as a defendant. He is neither a necessary nor a proper party and we fully agree in this view and answer the question posed

at the threshhold in the negative. We further hold that the decisions in Gurdev Singh v. Paras Ram, 1985 Punj LJ 315, and Atul Sharma and

Another Vs. Gurinder Singh and Others, do not lay down the correct law and are overruled. No costs. Petition dismissed.

Another fact which is noteworthy in this case is that before the institution of the present suit petitioner had filed a suit for permanent injunction

against all the respondents to this revision petition. This suit was instituted on 28-4-1978 and was titled as Kumari Sanjogta Jain v. Koshalya Devi.

This was a suit restraining Koshayala Devi and her brother Balbir Kumar Jain by a permanent injunction from selling or transferring House No. 61

situate in Mohalla Chodrian, Jammu, i.e. subject matter of the present suit, in favour of Keemti Lal and Shashi Pal sons of Chaman Lal.

At the time of bearing of this petition, it was stated at the Bar by Shri Johal, learned counsel for the petitioner, that on assurance having been

held out by the mother and brother of the petitioner that they wound not sell the property in question, however, there is nothing on record to

suggest anything in that behalf. Filing of this suit clearly suggests that the petitioner was well aware that her mother and brother are in the process of

selling the property in question. This suit was filed after the agreement to sell dated 23-2-1979 had been executed by both respondents 3 & 4. In

the suit petitioner has specifically stated regarding the bargain of sale having been entered between the parties for consideration of Rupees

18,000/- and for which some document of agreement to sell having already been executed. This further goes to show that it is not a case where

petitioner was neither aware and or kept in dark or something having taken place in a clandestine manner behind her back between respondents 1

& 2 on one side and respondents 3 & 4 on the other. She decided to sleep over the matter and has filed this application after a gap of about more

than 15 1/2 years. Reasons are not difficult to find. Here the observations made at the very outset of this judgment and filing of the present

application assumes significance. At the risk of repetition, I am constrained to observe that respondents 3 & 4 defendants, as well as for their

benefit and at their behest petitioner has not hesitated to abuse the process of law and the Court and thus delay the already delayed litigation.

No other point is urged.

In view of the aforesaid discussion, there is no merit in this revision petition, which is accordingly dismissed, with costs which are quantified at

Rs. 1,000/-.

Respondents 1 & 2 shall be at liberty to execute and recover the costs from the petitioner in execution on the strength of this order.

Record of the case is here, it be returned to the trial Court forthwith by the Registry so as to reach there on or before 23-9-2000, on which

date the parties present through their learned counsel have been directed to appear before the trial Court.

Since respondents 3 & 4 defendants are un-represented in this Court, trial Court will issue notice to them through the learned counsel, who

represented them in the trial Court and to no other party, because date has been fixed by this Court. In the pecu- liar circumstances of this case it

has become necessary to direct that with a view to expedite its decision trial Court will not fix a date for more than 15 days. In case any of the

witness (s) still remains to be examined on behalf of the defendants, Dasti notice will be given to defendants for getting them served. In case

witnesses on Commission are still to be examined and trial Court had not closed the right to examine both of them at Kapurthala and Delhi, the

Commissioner appointed for the said purpose shall do the needful within this period. Attendance of the witnesses who are to be examined by the

defendants at these two places shall be arranged by the defendants for which a date shall be fixed by the local Commissioner after issuing notice to

the parties through their learned counsel, and on such date, time and place, the defendants will ensure that both the witnesses are present and are

examined. After the closure of the evidence of the defendants, within three dates at a span of 15 days each as aforesaid, the rebuttal evidence, if

any, shall be examined by the plaintiffs, who shall also take Dasti notices for their witness (s) if any, to be examined by them. Case will be finally

heard and disposed of on or before 28-2-2001 by all means. Such a direction has been necessitated to ensure that the case is decided immediately

by the trial Court, keeping in view the fact that it was filed more than twenty years ago.

Trial Court is directed to monitor progress of the case after every hearing through the Registrar Vigilance of this Court, by sending timely

information of every date of hearing.

Registry is directed to return the record to the Court below, so as to reach well before the date fixed.