C/SCA/18086/2019 JUDGMENT DATED: 01/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18086 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SADHNA ALPESH SHAH
Versus
DHRUVKUMAR ANANTSHANKAR SHUKLA
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Appearance:
MR PARTHIV B SHAH(2678) for the Petitioner(s) No. 1,2,3
MR.ADITYA J PANDYA(6991) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 01/10/2021
ORAL JUDGMENT
Learned advocate for the petitioners has produced agreement to sale dated 13th April, 2017 which is taken on record.
1. By way of this petition, the petitioner have challenged the order dated 12.9.2019 passed by the learned 25 th Additional Senior Civil Judge, Vadodara below Exh. 35 in Special Civil Suit No. 86 of Page 1 of 15 Downloaded on : Fri Oct 08 06:22:21 IST 2021 C/SCA/18086/2019 JUDGMENT DATED: 01/10/2021 2018 whereby, the application preferred by the petitioners under Order 1 Rule 10(2) of Code of Civil Procedure to implead them as party defendant Nos. 2 to 4 in the suit was rejected.
2. The short facts leading to the present case are as under:- 2.1 Respondent No.1- original plaintiff filed Special Civil Suit No. 86 of 2018 against the respondent No.2- original defendant No.1 for specific performance of contract. Before filing of the suit, respondent No.1-plaintiff tried to snatch away the possession of petitioners over the suit land by taking law in their hands and hence, they have filed criminal prosecution as well as Special Civil Suit No. 238 of 2017. As per averments made by respondent No.1-plaintiff an Agreement to Sell was executed by respondent No.2-defendant in favour of respondent No.1 -plaintiff and sale consideration was fixed at Rs. 1,75,00,000/-. Respondent No.1- original plaintiff had paid sale consideration of Rs.1,50,00,000/-. As the defendant has not executed sale deed. Respondent No.1 -original plaintiff filed Special Civil Suit No. 86 of 2018. That, the petitioners were necessary parties in the suit and in their absence, no decree can be passed by the Court below. That, the petitioners have right, title and Page 2 of 15 Downloaded on : Fri Oct 08 06:22:21 IST 2021 C/SCA/18086/2019 JUDGMENT DATED: 01/10/2021 interest in the suit property claimed by the respondent No.1 against respondent No.2. That, in respect of controversy involved in the proceedings and the petitioners are necessary and proper parties the presence of the present petitioners is necessary in order to enable the Court effectually to adjudicate upon and settle the questions involved in the suit. That, petitioners filed application below Exh.35 for impleading them as party defendants No. 2 to 4 in Special Civil Suit No. 86 of 2018. After hearing, learned Judge was pleased to dismiss the application below Exh. 35 in Special Civil Suit No. 86 of 2018 on 12th September, 2019.
3. Heard learned advocates for the respective parties.
4. Learned advocate for the petitioner argued that the order passed beow Exh.35 is contrary to the provisions of Order 1 Rule 10(2) of CPC and bad in law . That, while referring Order 1 Rule 10(2) of CPC, the petitioners are necessary and proper party to the proceedings, and therefore, their presence is necessary to enable the Court effectually and completely to adjudicate upon and settle the question involved in the suit. That, looking to the documentary Page 3 of 15 Downloaded on : Fri Oct 08 06:22:21 IST 2021 C/SCA/18086/2019 JUDGMENT DATED: 01/10/2021 evidence produced in Special Civil Suit No. 238 of 2017, it was clear that the petitioners are not only proper parties to the present suit, but are necessary parties to decide the issue involved in the suit. That, the petitioners are residing in the suit premises, and therefore, before passing any final order or affect the issue, they are required to be heard by the Court below. That, the suit property is having common ownership and interest of the present petitioners are involved in the suit property. Learned trial Judge failed to appreciate the aforesaid submissions made before him and wrongly rejected the application below Exh. 35. That, the main ground for rejection of the the application below Exh. 35 was that the petitioners have not produced documentary evidence alongwith the application below Exh.35 to show their rights in the suit property. That, both the suits are listed on the same day and were pending before the same Court, however, application below Exh. 35 was rejected by the Court below. That, the petitioners were under the bonafide impression that the documentary evidence produced in Special Civil Suit No. 238 of 2017 would be considered by the Court and it would be unnecessarily burdened the Court, therefore, petitioners have not produced the documentary evidence alongwith Page 4 of 15 Downloaded on : Fri Oct 08 06:22:21 IST 2021 C/SCA/18086/2019 JUDGMENT DATED: 01/10/2021 the application below Exh.35. That, only on technical grounds, application bleow Exh. 35 preferred by the petitioners was rejected which is illegal and bad in law. That, the present petitioners, being wife and parents of respondent No.2, would face serious prejudice and loss if they are not impleaded as parties to the suit. In support of his arguments, learned advocate for the petitioners has relied upon the judgments rendered in case of Gurmit Singh Bhatia Vs. Kiran Kant Robinson and Others reported in (2020) 13 SCC 773 . Hence, it was requested by learned advocate for the petitioners to quash and set aside the impugned order dated 12 th September, 2019 passed bleow Exh.35 by learned 25th Additional Senior Civil Judge, Vadodara in Special Civil Suit No. 86 of 2018 dated 12 th September, 2019 and allowed the application below Exh. 35.
5. Per contra, learned advocate appearing for the respondents strongly objected the submissions made by the petitioners and argued that the petitioners are third party in the suit. Therefore, their presence are not required at all to object the suit filed by the respondent No.1- original plaintiff against respondent No.2-original defendant No.1 . That, Agreement to Sell was executed on 13 th Page 5 of 15 Downloaded on : Fri Oct 08 06:22:21 IST 2021 C/SCA/18086/2019 JUDGMENT DATED: 01/10/2021 April, 2017 between respondents No.1 and 2 wherein, none of the petitioners were parties. That, not a single documents was produced by the present petitioners alongwith application Exh. 35 before the trial Court showing that there was any interest involved in the suit property of the petitioners. That, the petitioners being stranger or a third party to the contract, are not entitled to be added in a suit for specific performance of contract for sale as a defendant. That, it is not necessary for to delve in depth into the scope of Order 1 Rule 10 sub-rule (1) of the CPC. That, in the suit filed by the respondent No.1 for specific performance of Agreement to Sale, the issue is to be decided in a suit to the enforceability of the contract entered between the respondent for sale of the contractual property. That, present petitioners did not seek their addition in the suit as defendants on the strength of the contract in respect of which the suit for specific performance of Agreement to Sell has been filed. That, the petitioners based their claim on independent title and possession of the suit property. That, in the event, the petitioners are added or impleaded as defendants in the suit, the scope of the suit for specific performance of Agreement to Sell would be enlarged from the suit for specific performance to a suit for title and Page 6 of 15 Downloaded on : Fri Oct 08 06:22:21 IST 2021 C/SCA/18086/2019 JUDGMENT DATED: 01/10/2021 possession which is not permissible in law. That, alleged right, title and interest in the suit property of the stranger to the agreement 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, 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. That, the controversies which may arise between the petitioners and respondents are inter se or questions between the parties to the suit and a third party. 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 respondents. That, the petitioners are neither necessary parties nor proper parties, and therefore, they are not entitled to be added as party defendants in the pending suit for specific performance for Agreement to Sell. That, the order passed by the trial Court below Exh.35 is legal and proper and no interference of this Court would be required. He has relied upon the decision rendered in case of Kasturi Vs. Iyyamperumal and others reported in AIR 2005 SC 2813. Hence, it was requested by learned advocate for the respondents to dismiss the present petition.
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6. Having gone through the facts of the present case, the submissions made by learned advocates for the respective parties and documents produced on record, it appears that the respondent No.1- original plaintiff filed Special Civil Suit No. 86 of 2018 against respondent No.2- original defendant No.1 for specific performance to execute the Agreement to Sell and permanent injunction. As per the contents of the suit, respondent No.2- original defendant No.1 executed the Agreement to Sell of the suit property in favour of the respondent No.1- original plaintiff on 13 th April, 2017 which was executed before the Office of the Sub Registrar, Vadodara at Sr. No. 5563. Copy of the Agreement to Sell is produced by learned advocate for the petitioner which is executed between respondents and sale consideration of the suit property was fixed at 1,75,00,000/- out of which Rs.1,50,00,000/- was paid to the seller. It was stated that the except the vendor, nobody had any right, title or interest in the suit property. The said suit was filed by the respondent No.1 on 26th March, 2018 . It also appears that prior to filing of the suit by respondent No.1, present petitioners Nos. 1 and 3 filed Special Civil Suit No. 238 of 2017 against respondent Page 8 of 15 Downloaded on : Fri Oct 08 06:22:21 IST 2021 C/SCA/18086/2019 JUDGMENT DATED: 01/10/2021 No.1-original plaintiff for declaration and injunction to protect their rights in the suit property. They contended in their suit that the suit property was purchased in the name of respondent No.2 -Alpesh Sharadchand Shah through their son by Regd. Sale-deed dated 11 th May, 1993 for the benefit of joint family. Respondent No.2- original defendant No.1 through his Power of Attorney filed his written statement as well as objection against interim application for injunction in Special Civil Suit No. 86 of 2018. It appears that the petitioner No.1 is wife and petitioners No. 2 and 3 are parents of respondent No.2. The Court observed while passing the order below Exh.35 that in support of their application, no single documents was produced by the present petitioners to show that there was any interest of the present petitioners in the suit property. It was also observed that to decide the suit being Special Civil Suit No. 86 of 2018, presence of the present petitioners being third party was not required, as they are not necessary party. Statement of the petitioners that they were in possession of the suit premises cannot be accepted as observed by the Court below.
7. Hon'ble Apex Court in case of Kasturi Vs. Iyyamperumal Page 9 of 15 Downloaded on : Fri Oct 08 06:22:21 IST 2021 C/SCA/18086/2019 JUDGMENT DATED: 01/10/2021 and others (Supra) has dealt with such issues under which the Court is empowered to add party in the suit. That suit was for specific performance of contract for sale of a property instituted by a purchaser against the vendor, a stranger or a third party to the contract was claiming to have an independent title and possession over the contracted property, wherein it is held that :-
15. That apart, from a plain reading of the expression used in sub-rule (2) Order 1 Rule 10 of the 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 plaintiff/appellant 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 plaintiff/appellant on one hand and Respondent Nos. 2 & 3 and Respondent Nos. 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 the respondent Nos.1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made hereinearlier, the respondent Nos.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.
17. That apart, there is another principle which cannot also be forgotten. The appellant, who has filed the instant suit for specific performance of the contract for sale is dominus litus and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law, as already discussed above. For the reasons aforesaid, we are therefore of the view that respondent Nos.1 and 4 to 11 are neither necessary parties nor proper parties and therefore they are not entitled to be added as party-defendants in the Page 10 of 15 Downloaded on : Fri Oct 08 06:22:21 IST 2021 C/SCA/18086/2019 JUDGMENT DATED: 01/10/2021 pending suit for specific performance of the contract for sale.
19. It was also argued on behalf of respondent Nos. 1 and 4 to 11 that to avoid multiplicity of suits it would be appropriate to join the respondent Nos. 1 and 4 to 11 as party-defendants as the question relating to the possession of the suit property would be finally and effectively settled. In view of our discussions made hereinabove, this argument also which weighed with the two courts below has no substance. In view of the discussions made hereinearlier, the two tests by which a person who is seeking addition in a pending suit for specific performance of the contract for sale must be satisfied. As stated hereinearlier, first there must be a right to the suit property for the same relief against a party relating to the same subject-matter involved in the proceedings for specific performance of contract for sale, and secondly, it would not be possible for the Court to pass effective decree or order in the absence of such a party. If we apply these two tests in the facts and circumstances of the present case, it would be evident that the respondent Nos.1 and 4 to 11 cannot satisfy the above two tests for determining the question whether a stranger/third party is entitled to be added under Order 1 Rule 10 of the CPC only on the ground that if the decree for specific performance of the contract for sale is passed in absence of respondent Nos. 1 and 4 to 11, their possession over the contracted property can be disturbed or they can be dispossessed from the contracted property in execution of the decree for specific performance of the contract for sale obtained by the appellant against respondent Nos 2 and 3. Such being the position, in our view, it was not open to the High Court or the trial court to join other cause of action in the instant suit for specific performance of the contract for sale, and therefore, the two Courts below acted illegally and without jurisdiction in allowing the application for addition of parties in the pending suit for specific performance of contract for sale filed at the instance of respondent Nos. 1 and 4 to 11.
8. Indisputedly, Special Civil Suit No. 86 of 2018 was filed for specific performance of the contract for sale. That, two tests would require to be considered when person who is seeking addition in pending suit for specific performance of the contract for sale. Tests are - (1) there must be a right to some relief against such party in Page 11 of 15 Downloaded on : Fri Oct 08 06:22:21 IST 2021 C/SCA/18086/2019 JUDGMENT DATED: 01/10/2021 respect of the controversies involved in the proceedings (2) no effective decree can be passed in the absence of such party.
9. Applying to said two tests in the present case, third party or stranger, however petitioners are family members of respondent No.2 original defendant No.1 would not require as they are not party to the contract. Their presence would not necessary for effective decree to be passed by the Court below. In their absence also, the suit can be decided and effective decree could be passed as they were not purchasers or seller of the suit property to respondent No.1- original plaintiff. Therefore, order passed by the Court below dismissing the application below Exh. 35 for addition of parties as defendants in the pending suit for specific performance of contract for sale filed by the respondent No.1-original plaintiff against respondent No.2- original defendant No.1 cannot said to be illegal and erroneous. In suit for specific performance of contract of sale, issue would require to be decided with regard to enforceability of the contract entered into between the respondents and whether the contract was executed by the respondent No.2- original defendant No.1 and the other respondent for sale /contract of property. Page 12 of 15 Downloaded on : Fri Oct 08 06:22:21 IST 2021
C/SCA/18086/2019 JUDGMENT DATED: 01/10/2021 Whether they were ready and willing to perform their part of the contract and whether the respondent No.1 is entitled to a decree for specific performance of a contract for sale against the respondent Nos.2. Admittedly, the petitioners based their claim for rights as co-owners of the suit property and therefore, it is improper. In the event they are added or impleaded in the suit, the scope of the suit for specific performance of the contract for sale would be enlarged from the suit for specific performance to a suit for title and possession which is not permissible in law. Therefore, present petitioners, being 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. If they would be permitted to be added as party 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. Moreover, respondent No.1-original plaintiff who has field Special Civil Suit No. 86 of 2018 for specific performance of the contract for sale is dominus litus and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law.
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10. In another case rendered in case of Gurmit Singh Bhatia Vs. Kiran Kant Robinson and Others reported in (2020) 13 SCC 773, Hon'ble Apex Court observed that the original plaintiffs filed a suit for specific performance of the agreement to sell of the suit property by vendor against defendant. During the pendency of the suit and despite the injunction against original defendant not to alienate or transfer the suit property, original defendant executed a sale deed in respect of the suit property in favour of the appellant. After a period of 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 in the suit. The appellant claimed the right on the basis of the sale deed and also the agreement to sell in favour of the original plaintiff. According to him, being purchaser of the suit property to protect the interest of the suit property, he is a necessary and proper party in the suit. Therefore, the learned trial Court allowed his application and directed the original plaintiff to join the appellant as defendant in the suit. Writ petition was preferred by the opposite party against that order of the trial Court. High Court allowed the writ petition holding that since relief claimed against the original defendants and as no relief has been claimed against the Page 14 of 15 Downloaded on : Fri Oct 08 06:22:21 IST 2021 C/SCA/18086/2019 JUDGMENT DATED: 01/10/2021 appellant herein, he cannot be said to be a necessary or formal party. Hon'ble Apex Court confirmed the view taken by the High Court holding that the appellant cannot be impleaded as a defendant in the suit for specific performance of the contract between the original plaintiffs and original defendant against the wish of the plaintiffs.
11. The judgement relied upon by learned advocate for the petitioners would not be helpful to the petitioners as they are third party or strangers who cannot be added in a suit for specific performance, to avoid multiplicity of the suits.
12. In view of the above and for the reasons stated above, this Court is in complete agreement with the view taken by the trial Court. No interference of this Court is called for. The petitioners cannot be impleaded as defendants No. 2 to 4 in the suit for specific performance of the contract between the respondent Nos. 1 and 2. Accordingly, present petition stands dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
(B.N. KARIA, J) BEENA SHAH Page 15 of 15 Downloaded on : Fri Oct 08 06:22:21 IST 2021