It is worth noting and worth mentioning that in a latest, landmark and laudable judgment titled Gurmit Singh Bhatia Vs Kiran Kant Robinson and others in Civil Appeal Nos. 5522-5523 of 2019 delivered on July 17, 2019, the Supreme Court while exercising its civil appellate jurisdiction has reiterated that, in a suit, the 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. All the courts must always bear this in mind while delivering judgments in such matters. There can be no denying or disputing it!
To start with, the ball is set rolling in para 1 of this noteworthy judgment authored by Justice MR Shah for himself and Justice DY Chandrachud of Supreme Court wherein it is pointed out that, “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 and 3 herein – the original plaintiffs, the original applicant – appellant has preferred the present appeals.”
To recapitulate, it is then stated in para 2 that, “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.”
Put plainly, it is then pointed out in para 2.1 that, “Feeling aggrieved and dissatisfied with the order passed by the 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.”
Be it noted, para 3.1 then discloses that, “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 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.”
Moving on, para 3.2 then further discloses that, “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 in 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.”
Going forward, it is then further added in para 3.3 that, “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.”
On the contrary, we then see that para 4 discloses that, “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 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.”
While citing the relevant case law thus adding more ammunition to its submissions, it is then pointed out in para 4.1 that, “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”.
Furthermore, it is then illustrated in para 4.2 that, “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 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.”
To put things in perspective, it is then ruled in para 5.1 after hearing the learned counsel for the respective parties at length that, “At the outset, it is required to be noted that the original plaintiffs filed the suit against the original owner – vendor – original defendant 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 10.7.2008. 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 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?”
As it turned out, it is then envisaged in para 5.2 that, “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 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.”
More significantly, it is then further added in this same para 5.2 that, “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 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 parties 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 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 party-defendants 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.”
It cannot be lost on us that it is then envisaged in para 6 that, “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 applicant 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).”
All told, it is then finally held in the last para 7 that, “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 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.”
In the ultimate analysis, the Apex Court has made it absolutely clear in this notable case that plaintiff cannot be forced to add parties against whom he does not want to fight unless there is a compulsion of the rule of law. It has been elaborated upon also in great detail which we have already discussed above. No doubt, all the courts must always comply with it in all such cases!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.