BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22/03/2007 CORAM THE HONOURABLE MR.JUSTICE S.RAJESWARAN C.R.P.PD.(MD).No.709 of 2006 and M.P.(MD).No.1 of 2006 1. A. Rekha 2. A. Subha ... Petitioners Vs. 1. D. Murugan thevar 2. A. Rajeswari ... Respondents Prayer Petition filed under Article 227 of the Constitution of India to set aside the fair and decreetal order dated 21.07.2006 made in I.A.No.78 of 2006 in O.S.No.304 of 2004 on the file of the Fast Track Court, Dindigul. !For Petitioners : M. Marivel ^For Respondent No.1 : Mr.R. Subramanian for R2 : No appearance :ORDER
The third party petitioners who filed I.A.No.78 of 2006 under Order 1 Rule
10(2) of C.P.C. In O.S.No.304 of 2004 are the revision petitioners.
2. The first respondent herein filed a suit in O.S.No.304 of 2004 against
the second respondent herein for the specific performance of the sale agreement
dated 11.12.2002 and also for possession of the suit schedule property. The
revision petitioners filed I.A.No.78 of 2006 to impleaded themselves as
defendant 2 and 3 in O.S.No.304 of 2004. In the affidavit filed in support of
the impleading application, it is stated that they filed the suit in O.S.No.313
of 2004 on the file of the Principal Sub Court, Dindigul against the first and
second respondents along with others for partition with other reliefs and the
suit schedule property in O.S.No.313 of 2004 and the suit schedule property in
O.S.No.304 of 2004 is one and the same and they have got 2/3rd share in the
property. The trial Court by order dated 21.07.2006 dismissed the I.A.No.78 of
2006 and aggrieved by the same, the above Civil Revision Petition has been filed
under Article 227 of the Constitution of India.
3. Heard the learned counsel for the petitioners and the learned counsel
for the 1st respondent. I have also gone through the documents and judgements
filed in support of their submissions.
4. The learned counsel for the petitioners submitted that as the
petitioners have got 2/3rd share in the suit schedule properties, they ought to
have been impleaded in the suit filed by the first respondent to specifically
enforce the sale deed against the second respondent with regard to the very same
properties.
5. Per contra, the learned counsel for the first respondent submitted that
the revision petitioners are neither necessary parties nor proper parties as
they are not parties to the sale agreement dated 11.12.2002. He relied on the
decision of the Supreme Court reported in 2005(2) CTC 676(Kasturi Vs.
Iyyamperumal and others) in this regard.
6. I have considered the rival submissions carefully with regard to the
facts and citations.
7. In 2005(2) CTC 676(cited supra) the Hon’ble Supreme Court held that
persons who are claiming adverse to the title of the vendor are not necessary
nor proper parties in a suit for specific performance of the contract for sale
as if such persons are impleaded, the scope of the suit for specific performance
would be enlarged and it would be practically converted into a suit for title.
The relevant portion of the judgement reads as under:
“Para 10. As noted herein earlier, 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.”
Para 12. From the aforesaid discussion, it is pellucid that necessary parties
are those persons in whose absence no decree can be passed by the Court or that
there must be a right to some relief against some party in respect of the
controversy involved in the proceedings and proper parties are those whose
presence before the Court would be necessary in order to enable the Court
effectually and completely to adjudicate upon and settle all the questions
involved in the suit although no relief in the suit was claimed against such
person.
Para 13. Keeping the principles as stated above in mind, let us now, on the
admitted facts of this case, first consider whether the respondent Nos.1 and 4
to 11 are necessary parties or not. In our opinion, the respondent Nos.1 and 4
to 11 are not necessary parties as effective decree could be passed in their
absence as they had not purchased the contracted property from the vendor after
the contract was entered into. They were also not necessary parties as they
would not be affected by the contract entered into between the appellant and the
respondent Nos.2 and 3. In the case of Anil Kumar Singh V. Shivnath Mishra
Alias Gadasa Guru, 1995 (3) SC 147, it has been held that since the applicant
who sought for his addition is not a party to the agreement for sale, it cannot
be said that in his absence, the dispute as to specific performance cannot be
decided. In this case at paragraph 9, the Supreme Court while deciding whether
a person is a necessary party or not in a suit for specific performance of a
contract for sale made the following observation:
“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.”
Para 14. As discussed herein earlier, whether respondent Nos.1 and 4 to 11 were
proper parties nor not the governing principle for deciding the question would
be that the presence of respondent Nos.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 the
respondent Nos.2 and 3 and whether contract was executed 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 the respondent Nos.2 and 3. It is an admitted
position that the respondent Nos.1 and 4 to 11 did not seek their addition in
the suit on the strength of the contract inrespect 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 but in the event,
the respondent Nos.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 Pratrap & others V. Sambhu
Saran Sinha & Others, 1966 (10) SCC 53, this Court had taken the same view which
is being taken by us in this judgement 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 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 the respondent Nos.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 the
respondent Nos.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 the respondent Nos.2 and 3, then, the Court shall direct execution of
deed of sale in favour of the appellant in the event respondent Nos.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
the respondent Nos.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, the respondent Nos. 1 and 4
to 11 would be at liberty either to obstruct execution in order to protect their
possession by taking recourse to the relevant provisions of the CPC, if they are
available to them, or to file an independent suit for declaration of title and
possession against the appellant or respondent No.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 the respondent Nos.1 and 4 to 11 have to be sued
for taking possession if they are in possession of the decretal property.
8. In view of the above decision of the Supreme Court, the Civil Revision
Petition is to be dismissed as devoid of merits. Further an elaborate suit has
been already instituted by the revision petitioners in O.S.No.313 of 2004 in
which both the first respondent and the second respondent are parties and in
such circumstances and all the issues affecting the rights of the revision
petitioners could be agitated in that suit itself and they need not be impleaded
in the present suit in which the issue to be decided is the enforceability of
the sale agreement entered into between the first respondent and second
respondent and whether the first respondent is always ready or willing to
perform his part of the contract to get a decree for specic performance of
contract for sale against the second respondent.
9. Therefore, there is no infirmity nor illegality in the order of the
trial Court warranting interference under Article 227 of the Constitution of
India.
10. In the result, this Civil Revision Petition is dismissed. No costs.
Consequently, connected M.P. is also closed.
To
1. Fast Track Court,
Dindigul.