REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 55225523 OF 2019
Gurmit Singh Bhatia …Appellant
Versus
Kiran Kant Robinson and others …Respondents
JUDGMENT
M.R. SHAH , J.
Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 3.7.2013 passed in Writ Petition No. 856/2012 and
order dated 5.8.2013 passed in Review Petition No. 169/2013 in Writ
Petition No. 856/2012 by the High Court of Chhattisgarh at Bilaspur,
by which the High Court has allowed the said writ petition preferred
by the original plaintiffs and has quashed and set aside the order
passed by the learned trial Court allowing the application preferred by
the appellant herein for impleading him as a necessary party to the
suit filed by respondent nos. 2 & 3 herein – the original plaintiffs, the
Signature Not Verified
Digitally signed by
JAYANT KUMAR ARORA
Date: 2019.07.25
13:06:50 IST
original applicant – appellant has preferred the present appeals.
Reason:
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2. The facts of the case leading to these appeals in nutshell are as
follows:
Respondent nos. 2 & 3 herein – the original plaintiffs filed a suit
against respondent no.1 herein – original defendant no.1 for specific
performance of the agreement to sell/contract dated 3.5.2005
executed by respondent no.1 – original defendant no.1 in the Court of
learned 4th Additional District Judge, Bilaspur. That during the
pendency of the aforesaid suit and despite the injunction against
respondent no.1 herein – original defendant no.1 – original owner not
to alienate or transfer the suit property, respondent no.1 herein –
original defendant no.1 executed a sale deed in favour of the appellant
herein vide sale deed dated 10.07.2008. The appellant herein –
purchaser who purchased the suit property during the pendency of
the suit filed an application in the pending suit under Order 1 Rule 10
of the CPC for impleadment as a defendant in the suit. It was the case
on behalf of the appellant herein that he has purchased the suit
property and is a necessary and proper party to the suit as he has a
direct interest in the suit property. That by an order dated 5.11.2012,
the learned trial Court allowed the said application and directed the
original plaintiffs to join the appellant as a defendant in the suit.
2.1 Feeling aggrieved and dissatisfied with the order passed by the
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learned trial Court dated 5.11.2012 allowing the application and
permitting the appellant herein to be joined as a party defendant in
the suit filed by the original plaintiffs – respondent nos. 2 & 3 herein,
respondent nos. 2 & 3 herein filed writ petition No. 856/2012 before
the High Court of Chhattisgarh. By the impugned judgment and order
dated 3.7.2013, the High Court has allowed the said writ petition and
has quashed and set aside the order passed by the learned trial Court
allowing the impleadment application preferred by the appellant
herein by holding that as regards the relief claimed against the original
defendants and as no relief has been claimed against the appellant
herein, the appellant cannot be said to be a necessary or formal party.
That thereafter the appellant preferred a review application which
came to be dismissed. Hence, the present appeals by way of special
leave petitions.
3. Shri Prashanto Chandra Sen, learned Senior Advocate has
appeared on behalf of the appellant and Shri M. Shoeb Alam, learned
Advocate has appeared on behalf of the original plaintiffs.
3.1 Learned Senior Advocate appearing on behalf of the appellant has
vehemently submitted that once the learned trial Court allowed the
impleadment application submitted by the appellant herein under
Order 1 Rule 10 of the CPC holding that the appellant is a necessary
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and proper party, the High Court, in exercise of powers under Article
227 of the Constitution of India, ought not to have interfered with the
same.
3.2 It is vehemently submitted by the learned Senior Advocate
appearing on behalf of the appellant that as such the appellant has
purchased the suit property from the same vendor and, in fact, the
appellant was prior agreement to sell holder and to protect the interest
of the appellant the appellant is a necessary and proper party. It is
submitted that therefore the learned trial Court rightly allowed the
impleadment application submitted by the appellant.
3.3 Making the above submissions and relying upon the decision of
this Court in the case of Robin Ramjibhai Patel v. Anandibai Rama @
Rajaram Pawar, reported in (2018) 15 SCC 614 and the decision of the
Bombay High Court in the case of Shri Swastik Developers vs. Saket
Kumar Jain, reported in 2014 (2) Mh. L.J 968, it is prayed to allow the
present appeals and quash and set aside the impugned judgments
and orders passed by the High Court and restore the order passed by
the learned trial Court.
4. The present appeals are vehemently opposed by Shri M. Shoeb
Alam, learned Advocate appearing on behalf of the original plaintiffs.
It is vehemently submitted that in fact the appellant purchased the
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suit property during the pendency of the suit and that too in violation
of the injunction granted by the learned trial Court. It is submitted
that as such the prior agreement to sell upon which reliance has been
placed by the appellant is a concocted and forged one. It is submitted
that in any case the appellant cannot be impleaded as a defendant in
a suit filed by the original plaintiffs for specific performance of the
agreement to sell/contract to which the appellant is not a party. It is
submitted that the original plaintiffs are the dominus litis and without
their consent nobody can be permitted to be impleaded as defendant.
4.1 It is vehemently submitted that as such the issue involved in the
present case is squarely covered against the appellant in view of the
decision of this Court in the case of Kasturi v. Iyyamperumal, reported
in (2005) 6 SCC 733.
4.2 Insofar as the reliance placed upon the decision of this Court in
the case of Robin Ramjibhai Patel (supra) as well as the decision of the
Bombay High Court in the case of Shri Swastik Developers
(supra) by the learned Senior Advocate appearing on behalf of the
appellant, it is vehemently submitted by Shri M. Shoeb Alam, learned
Advocate appearing on behalf of the original plaintiffs that the said
decisions shall not be applicable to the facts of the case on hand. It is
submitted that in the aforesaid two cases, it was an application by the
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original plaintiff to implead the subsequent purchaser who purchased
the property during the pendency of the suits. It is submitted that as
held by this Court in the case of Kasturi(supra), it is for the
plaintiff/plaintiffs to implead a particular person/persons as
defendant/defendants and if he/they does not/do not join then it will
be at the risk of the plaintiff/plaintiffs. It is further submitted that the
plaintiff cannot be forced to implead any other person, more
particularly who is not a party to the contract, against the wish of the
plaintiff. It is submitted that therefore the aforesaid two decisions,
upon which reliance has been placed by the learned Senior Advocate
appearing on behalf of the appellant, shall not be applicable to the
facts of the case on hand. It is submitted that as such the decision of
this Court in the case of Kasturi (supra) clinches the issue and shall be
squarely applicable to the facts of the case on hand.
4.3 Making the above submissions and relying upon the decision of
this Court in the case of Kasturi(supra), it is prayed to dismiss the
present appeals.
5. We have heard the learned counsel for the respective parties at
length.
5.1 At the outset, it is required to be noted that the original plaintiffs
filed the suit against the original owner – vendor – original defendant
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no.1 for specific performance of the agreement to sell with respect to
suit property dated 3.5.2005. It is an admitted position that so far as
agreement to sell dated 3.5.2005 of which the specific performance is
sought, the appellant is not a party to the said agreement to sell. It
appears that during the pendency of the aforesaid suit and though
there was an injunction against the original owner – vendor
restraining him from transferring and alienating the suit property, the
vendor executed the sale deed in favour of the appellant by sale deed
dated 10.07.2008. After a period of approximately four years, the
appellant filed an application before the learned trial Court under
Order 1 Rule 10 of the CPC for his impleadment as a defendant. The
appellant claimed the right on the basis of the said sale deed as well
as the agreement to sell dated 31.3.2003 alleged to have been
executed by the original vendor. The said application was opposed by
the original plaintiffs. The learned trial Court despite the opposition
by the original plaintiffs allowed the said application which has been
set aside by the High Court by the impugned judgment and order.
Thus, it was an application under Order 1 Rule 10 of the CPC by a
third party to the agreement to sell between the original plaintiffs and
original defendant no.1 (vendor) and the said application for
impleadment is/was opposed by the original plaintiffs. Therefore, the
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short question which is posed for consideration before this Court is,
whether the plaintiffs can be compelled to implead a person in the suit
for specific performance, against his wish and more particularly with
respect to a person against whom no relief has been claimed by him?
5.2 An identical question came to be considered before this Court in
the case of Kasturi (supra) and applying the principle that the plaintiff
is the dominus litis, in the similar facts and circumstances of the case,
this Court observed and held that 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 and legal interest in the controversy
involved in the suit. It is further observed and held by this Court that
two tests are to be satisfied for determining the question who is a
necessary party. The tests are – (1) there must be a right to some
relief against such party in respect of the controversies involved in the
proceedings; (2) no effective decree can be passed in the absence of
such party. It is further observed and held that in a suit for specific
performance the first test can be formulated is, to determine whether a
party is a necessary party there must be a right to the same relief
against the party claiming to be a necessary party, relating to the
same subject matter involved in the proceedings for specific
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performance of contract to sell. It is further observed and held by this
Court that in a suit for specific performance of the contract, a proper
party is a party whose presence is necessary to adjudicate the
controversy involved in the suit. It is further observed and held that
the parties claiming an independent title and possession adverse to
the title of the vendor and not on the basis of the contract, are not
proper parties and if such party is impleaded in the suit, the scope of
the suit for specific performance shall be enlarged to a suit for title
and possession, which is impermissible. It is further observed and
held that a third party or a stranger cannot be added in a suit for
specific performance, merely in order to find out who is in possession
of the contracted property or to avoid multiplicity of the suits. It is
further observed and held by this Court that a third party or a
stranger to a contract cannot be added so as to convert a suit of one
character into a suit of different character. In paragraphs 15 and 16,
this Court observed and held as under:
“15. As discussed hereinearlier, whether Respondents 1 and 4
to 11 were proper parties or not, the governing principle for
deciding the question would be that the presence of
Respondents 1 and 4 to 11 before the court would be
necessary to enable it effectually and completely to adjudicate
upon and settle all the questions involved in the suit. As noted
hereinearlier, in a suit for specific performance of a contract
for sale, the issue to be decided is the enforceability of the
contract entered into between the appellant and Respondents
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2 and 3 and whether contract was executed by the appellant
and Respondents 2 and 3 for sale of the contracted property,
whether the plaintiffs were ready and willing to perform their
part of the contract and whether the appellant is entitled to a
decree for specific performance of a contract for sale against
Respondents 2 and 3. It is an admitted position that
Respondents 1 and 4 to 11 did not seek their addition in the
suit on the strength of the contract in respect of which the suit
for specific performance of the contract for sale has been filed.
Admittedly, they based their claim on independent title and
possession of the contracted property. It is, therefore, obvious
as noted hereinearlier that in the event, Respondents 1 and 4
to 11 are added or impleaded in the suit, the scope of the suit
for specific performance of the contract for sale shall be
enlarged from the suit for specific performance to a suit for
title and possession which is not permissible in law. In the
case of Vijay Pratap v. Sambhu Saran Sinha [(1996) 10 SCC
53] this Court had taken the same view which is being taken
by us in this judgment as discussed above. This Court in that
decision clearly held that to decide the right, title and interest
in the suit property of the stranger to the contract is beyond
the scope of the suit for specific performance of the contract
and the same cannot be turned into a regular title suit.
Therefore, in our view, a third party or a stranger to the
contract cannot be added so as to convert a suit of one
character into a suit of different character. As discussed
above, in the event any decree is passed against Respondents
2 and 3 and in favour of the appellant for specific performance
of the contract for sale in respect of the contracted property,
the decree that would be passed in the said suit, obviously,
cannot bind Respondents 1 and 4 to 11. It may also be
observed that in the event, the appellant obtains a decree for
specific performance of the contracted property against
Respondents 2 and 3, then, the Court shall direct execution of
deed of sale in favour of the appellant in the event
Respondents 2 and 3 refusing to execute the deed of sale and
to obtain possession of the contracted property he has to put
the decree in execution. As noted hereinearlier, since
Respondents 1 and 4 to 11 were not parties in the suit for
specific performance of a contract for sale of the contracted
property, a decree passed in such a suit shall not bind them
and in that case, Respondents 1 and 4 to 11 would be at
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liberty either to obstruct execution in order to protect their
possession by taking recourse to the relevant provisions of
CPC, if they are available to them, or to file an independent
suit for declaration of title and possession against the
appellant or Respondent 3. On the other hand, if the decree is
passed in favour of the appellant and sale deed is executed,
the stranger to the contract being Respondents 1 and 4 to 11
have to be sued for taking possession if they are in possession
of the decretal property.
16. That apart, from a plain reading of the expression used in
subrule (2) Order 1 Rule 10 CPC “all the questions involved in
the suit” it is abundantly clear that the legislature clearly
meant that the controversies raised as between the parties to
the litigation must be gone into only, that is to say,
controversies with regard to the right which is set up and the
relief claimed on one side and denied on the other and not the
controversies which may arise between the plaintiffappellant
and the defendants inter se or questions between the parties
to the suit and a third party. In our view, therefore, the court
cannot allow adjudication of collateral matters so as to convert
a suit for specific performance of contract for sale into a
complicated suit for title between the plaintiffappellant on one
hand and Respondents 2 and 3 and Respondents 1 and 4 to
11 on the other. This addition, if allowed, would lead to a
complicated litigation by which the trial and decision of
serious questions which are totally outside the scope of the
suit would have to be gone into. As the decree of a suit for
specific performance of the contract for sale, if passed, cannot,
at all, affect the right, title and interest of Respondents 1 and
4 to 11 in respect of the contracted property and in view of the
detailed discussion made hereinearlier, Respondents 1 and 4
to 11 would not, at all, be necessary to be added in the instant
suit for specific performance of the contract for sale.”
That thereafter, after observing and holding as above, this Court
further observed that in view of the principle that the plaintiff who has
filed a suit for specific performance of the contract to sell is the
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dominus litis, he cannot be forced to add parties against whom, he
does not want to fight unless it is a compulsion of the rule of law. In
the aforesaid decision in the case of Kasturi(supra), it was contended
on behalf of the third parties that they are in possession of the suit
property on the basis of their independent title to the same and as the
plaintiff had also claimed the relief of possession in the plaint and the
issue with regard to possession is common to the parties including the
third parties, and therefore, the same can be settled in the suit itself.
It was further submitted on behalf of the third parties that to avoid the
multiplicity of the suits, it would be appropriate to join them as party
defendants. This Court did not accept the aforesaid submission by
observing that merely in order to find out who is in possession of the
contracted property, a third party or a stranger to the contract cannot
be added in a suit for specific performance of the contract to sell
because they are not necessary parties as there was no semblance of
right to some relief against the party to the contract. It is further
observed and held that in a suit for specific performance of the
contract to sell the lis between the vendor and the persons in whose
favour agreement to sell is executed shall only be gone into and it is
also not open to the Court to decide whether any other parties have
acquired any title and possession of the contracted property. It is
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further observed and held by this Court in the aforesaid decision that
if the plaintiff who has filed a suit for specific performance of the
contract to sell, even after receiving the notice of claim of title and
possession by other persons (not parties to the suit and even not
parties to the agreement to sell for which a decree for specific
performance is sought) does not want to join them in the pending suit,
it is always done at the risk of the plaintiff because he cannot be
forced to join the third parties as partydefendants in such suit. The
aforesaid observations are made by this Court considering the
principle that plaintiff is the dominus litis and cannot be forced to add
parties against whom he does not want to fight unless there is a
compulsion of the rule of law. Therefore, considering the decision of
this Court in the case of Kasturi (supra), the appellant cannot be
impleaded as a defendant in the suit filed by the original plaintiffs for
specific performance of the contract between the original plaintiffs and
original defendant no.1 and in a suit for specific performance of the
contract to which the appellant is not a party and that too against the
wish of the plaintiffs. The plaintiffs cannot be forced to add party
against whom he does not want to fight. If he does so, in that case, it
will be at the risk of the plaintiffs.
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6. Now so far as the reliance placed upon the decision of this Court
in the case of Robin Ramjibhai Patel (supra) and the decision of the
Bombay High Court in the case of Shri Swastik Developers (supra),
relied upon by the learned Senior Advocate for the appellant is
concerned, the aforesaid decisions shall not be applicable to the facts
of the case on hand as in both the aforesaid cases, it was the plaintiff
who submitted an application to implead the third parties/subsequent
purchasers who claimed title under the vendor of the plaintiff. Position
will be different when the plaintiff submits an application to implead
the subsequent purchaser as a party and when the plaintiff opposes
such an application for impleadment. This is the distinguishing
feature in the aforesaid two decisions and in the decision of this Court
in the case of Kasturi(supra).
7. In view of the above and for the reasons stated above, we are in
complete agreement with the view taken by the High Court. No
interference of this Court is called for. The appellant cannot be
impleaded as a defendant in the suit for specific performance of the
contract between the original plaintiffs and original defendant no.1
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against the wish of the plaintiffs. Accordingly, the present appeals
stand dismissed. However, in the facts and circumstances of the case,
there shall be no order as to costs.
………………………………….J.
[Dr. D.Y. CHANDRACHUD]
NEW DELHI; ………………………………….J.
JULY 17, 2019. [M.R. SHAH]
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