IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 24.03.2008
Coram
The Honourable Mr.Justice S.RAJESWARAN
C.R.P.(PD)No.2459 of 2007
and
M.P.No.1 of 2007
M.Sathishkumar ... Petitioner
Vs.
1.M.Ramasamy
2.P.Kumar
3.M.Mariappan
4.Marappa Gounder
5.Somu @ Ramasay
6.R.Veeran ... Respondents
This petition has been filed under Article 227 of Constitution of India to set aside the fair and final order dated 08.11.2006 made in I.A.No.119 of 2006 in O.S.No.163 of 2004 on the file of the Additional District Court-Fast Track Court No.II, Salem.
For Petitioner : Mr.T.Murugamanikkam
For Respondents : Mr.P.Sathish for R2 to R5
Mr.K.Kannan for R6
R-1 - N.A.
O R D E R
This Civil Revision Petition has been filed by the petitioner to set aside the fair and final order dated 08.11.2006 made in I.A.No.119 of 2006 in O.S.No.163 of 2004 on the file of the Additional District Court-Fast Track Court No.II, Salem.
2. The plaintiff in O.S.No.163 of 2004 is the revision petitioner herein. He has filed a suit in O.S.No.163 of 2004 against the 6th respondent herein on the file of the Additional District Judge, Fast Track Court No.II, Salem for specific performance of the agreement for sale. The 6th respondent herein has filed a written statement and he is contesting the said suit. Pending suit, the respondents 1 to 5 herein filed an application in I.A.No.119 of 2006 praying to implead them as defendants 2 to 6 in the original suit and permit them to contest the suit. The said application was resisted by the petitioner/plaintiff. However, the trial Court by an order dated 08.11.2006 allowed the application and directed the parties to be impleaded as defendants 2 to 6 in the suit. Aggrieved by the same, the civil revision petition has been filed by the petitioner/plaintiff.
3. At the time of admission, notice was ordered on 23.08.2007 and interim stay was granted. The respondents have been served and they have entered appearance through Counsel.
4. It is a suit for Specific Performance filed by the plaintiff against the 6th respondent. The written statement filed by the 6th respondent clearly reveals the fact of entering into the sale agreement and the readiness and willingness of the 6th respondent to execute the sale deed, provided the plaintiff is ready to pay the balance sale consideration.
5. While so, the respondents 1 to 5 herein claiming to be the power of attorney of the 6th respondent/defendant in the suit filed an application in I.A.No.119 of 2006 seeking to implead themselves as party defendants, 2 to 6. The said application was vehemently opposed by the petitioner/plaintiff. However, the trial Court allowed the application stating that the respondents 1 to 5 are necessary parties for just and fair conclusion.
6. The learned counsel for the petitioner drew my attention to the judgment reported in 2005(6) SCC 733 (Kasturi Vs.Iyyamperumal and others) wherein the Hon’ble Supreme Court has categorically held that a stranger or a third party to the contract cannot be added in a suit for Specific Performance of the contract of sale. The learned counsel for the petitioner further submits that this being the settled decision, the order passed by the Court below impleading the respondents 1 to 5 herein, is legally unsustainable.
7. Per contra, the learned counsel for the respondents submit that the Court below has rightly allowed the application to implead the respondent 1 to 5 as parties defendants 1 to 5. Therefore it does not call for any interference under Article 227 of Constitution of India.
8. I am unable to accept the submission put forth by the learned counsel appearing for the respondents.
9. The suit was filed by the revision petitioner against the 6th respondent/defendant for the main relief of directing the defendant to execute and register the sale deed for Rs.22,56,000/-. The suit claim is bared on a sale agreement entered in to between the plaintiff and the defendant. If that being so, to decide the lis between the plaintiff and the defendant, respondents 1 to 5 who are not parties to the agreement are neither necessary parties not proper parties. In such circumstances, the order of the trial Court holding that the respondents 1 to 5 are necessary parties is clearly vitiated and liable to be set aside.
10. As held by the Hon’ble Supreme Court, reported in 2005(6) SCC 733 (Cited Supra) in a suit for specific performance of a contract for sale, the issue to be decided is the enforceability of the contract entered in to between the parties and whether the plaintiff is ready and willing to perform his part of the contract. Further this scope of the suit for Specific Performance of the contract of sale shall not be enlarged to a suit for title and possession. If respondents 1 to 5 are impleaded in the suit, it would lead to a complicated litigation by which the trial and the decision of serious questions which are totally outside the scope of the suit would have to be gone into. Therefore, the effective adjudication of controversies involved in the suit for Specific Performance the presence of respondents 1 to 5 cannot be said to be necessary at all. That apart the revision petitioner who has filed the suit for Specific Performance of the contract for sale is dominus litis and he cannot be compelled to add parties against whom he does not want to fight unless it is a compulsion of the Rule of law. There is no substance in the contention that Respondents 1 to 5 are necessary parties to avoid multiplicity of suit. Therefore, I am inclined to interfere with the order of the trial Court dated 08.11.2006 and accordingly, the same is set aside.
11 . In the result, the civil revision petition is allowed. No costs. Consequently, connected M.P.1 of 2007 is closed.
24.03.2008
rrg
Index : Yes/No
Internet: Yes/No
S.RAJESWARAN,J.
rrg
1. The Additional District Judge,
Fast Track Court No.II,
Salem.
C.R.P.(PD)No.2459 of 2007
24.03.2008