Divyesh Constrtuction Pvt. Ltd. ... vs Virsen B. Solanki And M/S.Nestor ...
2017 Latest Caselaw 9434 Bom

 Shridhar Sutar                            1                    901-chs-683.14.doc




             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                ORDINARY ORIGINAL CIVIL JURISDICTION 

                   CHAMBER SUMMONS NO. 683 OF 2014
                                  IN
                         SUIT NO. 216 OF 2011

 1.          M/s. Nestor Construction Pvt. Ltd.
             Through its authorized Director
             Shri Pravin Amidas Mehta
             Aged 62 Years, Indian Inhabitant
             having its officers at C-3, Rameshwar
             Society, Opp. Khira Nagar, Santacruz (W)
             Mumbai - 400 054.

 2.   Mr. Ayub Khan Jalil Khan
      Age: 50 years,
      Adult Indian Inhabitant,
      Residing at Room No.1, Jalil Khan Compound
      Malad (West), Mumbai - 400 064.            ...Applicants/
                                                     Intervener
 IN THE MATTER BETWEEN

 1.          Divyesh Construction Pvt. Ltd.,
             A Company Incorporated Under the
             Provisions of The Companies Act, 1956,
             Havind its office at 101, Prathmesh Apt.,
             86th Old College Road,
             Opp. Portuguese Church, Dadar (West),
             Mumbai - 400 028.

 2.          Heeralal Meghraj Doshi
             of Mumbai, Aged 49 years, Indian Inhabitant,
             Having his address at
             At 101, Prathmesh Apt., 86th Old College Road,
             Opp.Portuguese Church, Dadar (West),
             Mumbai - 400 028                             ... Plaintiffs


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             Versus

 Virsen B. Solanki
 Aged 45 years, Indian Inhabitant,
 carrying on business in the firm and style of
 M/s. Bombay Land Development Corporation
 as the Sole Proprietor thereof,
 having his place of business at
 Raj Market, New Nagardas Road,
 Andheri (East), Mumbai - 400 069.             ... Defendant.

                                    .....
 H.   Toor   a/w   Ms.   Swati   Sawant   i/b   S.K.   Legal   Associates   for
 Applicants/Intervenor.
 Nikhil   Karnawat   a/w   Harsh   Behahy     i/b   Nivit   Srivastava   for
 Respondents/original plaintiffs.
 D.N. Kher O.S.D. from Court Receiver - present.
                                    .....

                               CORAM : R. D. DHANUKA, J.


                         RESERVED ON : 23rd NOVEMBER, 2017.
                  PRONOUNCED ON :   08th DECEMBER, 2017.

 JUDGMENT :

1. By this chamber summons, the applicants seek impleadment

as parties defendant Nos. 2 and 3 in the suit filed by the plaintiffs,

which is filed inter-alia praying for specific performance of the

Memorandum of Understanding dated 28th April, 2006, for a

declaration that the said Memorandum of Understanding is valid,

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subsisting and binding between the plaintiffs and defendant and

for further declaration that the purported termination dated 5 th

January 2011 is illegal, invalid and binding on the plaintiffs.

Some of the relevant facts for the purpose of deciding this

chamber summons are as under;

2. On 28th April, 2006 the plaintiffs and defendant entered into

the Memorandum of Understanding, by which, the defendant

agreed to sell the suit property, described in Exhibit-"A" of the

plaint. In the said suit, it was the case of the plaintiffs that the

plaintiffs have made payment to the defendant of large amount

and complied with their part of the obligation of the terms and

conditions of the said Memorandum of Understanding. The

defendant purported to terminate the said Memorandum of

Understanding dated 28th April, 2006 by issuing Notice dated 5 th

January, 2011. On 27th January, 2011, the plaintiffs filed the suit

bearing Suit No.216 of 2011 against the defendant for various

reliefs summarised aforesaid. On 27th July, 2011 this Court

appointed the Court Receiver, High Court, Bombay in respect of

the suit property.

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3. In the month of June 2014, the applicants filed this

Chamber Summons inter-alia praying for impleadment as

defendants No. 2 and 3, which is opposed by the plaintiffs by

filing affidavit-in-reply. The applicants have filed affidavit-in-

rejoinder to the said affidavit-in-reply.

4. Mr. Toor, learned Counsel for the applicants invited my

attention to the documents annexed to the affidavit in support of

the Chamber Summons, annexed to the affidavit-in-reply and also

to the affidavit-in-rejoinder filed in the aforesaid Chamber

Summons and various averments made in those affidavits. It is

submitted by the learned Counsel for the applicants that the

applicants jointly are concerned with the suit plot and are also the

title holders thereof by virtue of documents executed with the

duly registered with the owners and duly reflected in the record of

rights. He submits that the defendant is claiming rights over the

suit plot by virtue of agreement dated 28 th January, 1979 executed

with one of the legal heirs of late Jaikaran Pandey i. e. Mr.

Ratansey Jaikaran Pandey. The plaintiffs are claiming rights over

the suit plot by virtue of Memorandum of Understanding dated

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28th April, 2006 executed between the plaintiffs and the

defendant.

5. It is submitted that one of the legal heir Mr. Bhagelu

Ratansey Pandel and others executed a registered Deed of

Conveyance dated 19th October, 2004 and further Deed of

Confirmation dated 1st October, 2005 in favour of M/s. Royal

Associates, thereby transferring their 1/4th undivided share in

favour of M/s. Royal Associates. It is submitted that M/s. Royal

Associates entered into another registered Deed of Conveyance

dated 10th July, 2002 with other legal heirs of the original owners

i. e. Mr. Mewalal alias Mewakant Sidhanath Tiwari and Mr.

Sewakant Sidhanath Tiwari and transferred 1/4th share, title and

interest in the suit property. The said legal heirs also executed a

Deed of Confirmation dated 1st September, 2005. Index-II was

thereafter issued.

6. It is submitted that Mr. Radheshyam Pralhad Nayak, a

partner of M/s. Royal Associates in his individual capacity as well

as the applicant No.2 entered into registered Deed of Conveyance

dated 10th November, 2006 with Baboolnath Jadunath Pandey and

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purchased 1/4th undivided share, right and title in the said suit

plot from the said legal heir. The Deed of Conveyance dated 10 th

November, 2006 is jointly executed by said M/s. Royal Associates

and Applicant No.2. It is submitted that by virtue of three Deeds of

Conveyance dated 10th July, 2002, 10th October, 2004 and 10th

November, 2006 the said M/s. Royal Associates individually and

jointly with the applicant No.2 purchased and conveyed share and

interest of the several legal heirs of the suit plot. The applicant

No.2 and M/s. Royal Associates, thereafter, approached applicant

No.1 for Sale/Development of the suit plot. The applicant No.1

thereafter issued Public Notice on 4th October, 2007 and declared

their intent to enter into agreement with the applicant No.2 and

M/s. Royal Associates. No objection of any nature was raised by

the defendant or the plaintiffs in response to the said public

notice.

7. It is the case of the applicants that the applicant No.1 also

did not find any record of execution of any documents/agreement

between the parties while took search of the office the Registrar of

Assurances. The applicant No.1, thereafter, entered into a

Memorandum of Understanding dated 21st September, 2007 with

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applicant No.2 and M/s. Royal Associates and agreed to purchase

the suit plot on a total considerable price of Rs. 3,95,30,000/- and

paid an earnest amount to the applicant No.2 and M/s. Royal

Associates.

8. Learned Counsel for the applicants submits that the

applicant No.1 is a bonafide purchaser of the suit plot and has

entered into agreement with the applicant No.2 and M/s. Royal

Associates after making all inquiries and after verification of the

records in the office of Registrar of Assurances. He submits that

the subject matter of the suit and the property purchased by the

applicants is the same.

9. Learned Counsel for the applicants invited my attention to

the prayers in the plaint and would submit that the plaintiffs have

prayed for specific performance of the suit agreement and also for

possession of the suit property, which is in possession of the

applicants. He submits that if any decree for possession is passed

by this court, it will affect the right, title and interest of the

applicants. He submits that the possession of the applicants is not

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disputed by the plaintiffs and the defendant in respect of the suit

property.

10. Learned Counsel for the applicants placed reliance on the

following judgments in support of his aforesaid submissions.

1. AIR(30) 1943 Bombay 27 - Shivshankareppa M. Parakanhatti Vs. Shivappa Parappa Kuparti and others - Page No.29

2. AIR 1971 Gujarat 256 - Bai Devkabai and others Vs. Shah Shamji Mulji - Para Nos. 3 and 4.

3. AIR 1989 Kerala 167 - K.S. Abraham Vs. Mrs. Chandy Rosamma and others - Para Nos. 6, 8, 9, 10 and 11.

4. AIR 1994 Andhra Pradesh 50 - Adapa Venkateshwar Rao and another Vs. Mohammad Suleman and others

- Para Nos. 4 and 5.

5. (2005) 6 SCC 733 - Kasturi Vs. Iyyamperumal and others.

6. (2007) 10 SCC 82 - Sumtibai and others Vs. Paras Finance Co. and others - Para Nos. 9 and 14.

7. (2010) 7 SCC 417 - Mumbai International Airport Pvt. Ltd., Vs. Regency Convention Centre and Hotels Pvt. Ltd. And others - Para Nos. 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 24.3, 24.4, 25, 26 and 27.

11. Learned Counsel for the applicants submits that the

judgment of the Supreme Court in case of Kasturi (supra) has

been distinguished in the later judgment in the case of Sumtibai

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and others (supra) and also in case of Mumbai International

Airport Pvt. Ltd. (supra). He submits that even in a suit for specific

performance of agreement third party can be impleaded as party

defendant if such party has an interest and if such party claims

right, title and interest in the suit property.

12. Learned Counsel for the plaintiffs on the other hand disputes

the claim of the applicants that the applicants are in possession of

the suit property. It is submitted by the learned Counsel that the

plaintiffs have applied for specific performance in respect of the

land bearing Survey No.4, Hissa No.2 bearing CTS No. 157, 157/B

admeasuring about 1373.13 square yards equivalent to 1143

square meters, which is fully tenanted.

13. It is submitted that insofar as the alleged MOU dated 29 th

September, 2007 in favour of the applicant No.1 which is annexed

to the affidavit in support of Chamber Summons is concerned the

said alleged MOU is in respect of the land bearing Survey No. 46,

Hissa No.21 bearing CTS No. 157 and 157/1 to 157/13

admeasuring 1148 square meters, which property was owned by

one Mr. Jaikaran Pandey. He placed reliance upon various

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documents annexed to the plaint including the MOU, the consent

terms and the decree. The applicants are neither claiming

through the plaintiffs nor the defendant in the present suit and are

totally strangers to the suit and thus cannot be impleaded as

parties to this suit inter-alia praying for specific performance of

MOU and for other reliefs. The applicants are claiming

independent title and possession of the suit property. He submits

that the Court Receiver is in possession of the suit property

appointed by this Court and not the applicants as alleged.

14. Learned counsel also placed reliance on the report submitted

by the Court Receiver while taking possession of the suit property

pursuant to order dated 27th July, 2011 passed by this Court and

would submit that the said report does not disclose the name of

the applicants to be found in possession of the suit property at the

time of Court Receiver taking possession of the suit property. It is

submitted that the applicants have not produced any document on

record to show that the tenants in the suit property are not paying

any rent to the applicants. The applicants have not filed any

independent suit to protect their alleged possession or for

claiming any independent rights in the suit property. He submits

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that the applicants are neither necessary nor proper parties for

adjudication of the dispute in the present suit. Impleadment of the

applicants will result in changing the nature of the present suit

from specific performance to suit for title and possession, which is

impermissible in law and will also result in multiplicity of the

proceedings and would lead to a complicated litigation which is

totally outside the scope of the specific performance.

15. It is submitted by the learned Counsel for the plaintiffs that

the applicants are allegedly claiming title in the suit property on

the basis of alleged Deed of Conveyances which are not registered.

Insofar as the judgment of the Supreme Court in the case of

Kasturi (supra) sought to be distinguished by the learned Counsel

for the applicants is concerned, the learned Counsel for the

plaintiffs submits that the said judgment squarely applies to the

facts of this case. He placed reliance on various paragraphs of the

said judgment and more particularly paragraph Nos. 2 to 4, 6 to

11, 13 to 22 and 22. He submits that the Supreme Court has also

considered the Section 19(c) of the Specific Relief Act, 1963 in

paragraph Nos. 8 to 10 and has held that the said provisions are

not applicable to the party seeking impleadment in a suit for

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specific performance. He submits that the Supreme Court in the

said judgment in the case of Kasturi (supra) had refused to grant

impleadment to the applicants seeking independent title and

possession in a suit for specific performance of the contract.

16. Learned Counsel for the plaintiffs also distinguished

judgment of this Court in case of Mumbai International Airport

Pvt. Ltd. (supra) relied upon by the learned Counsel for the

applicants on the ground that the facts before the Supreme Court

in the said judgment were totally different. The applicant in that

matter was seeking impleadment as a party defendant to the suit

on the basis that the vendor of the applicant and the plaintiff in

the suit was common and the applicant was a subsequent

purchaser during the pendancy in the said suit. It is submitted that

the judgment of the Supreme Court in the case Kasturi (supra) has

not been diluted by the Supreme Court in the case Mumbai

International Airport Pvt. Ltd. (supra), but the views of the

Supreme Court in the case of Kasturi (supra) are reiterated by the

Supreme Court in the said judgment. He submits that the

judgment has to be read considering the facts of that particular

case.

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17. Learned Counsel for the plaintiffs also distinguished the

judgment of the Supreme Court in case of Sumtibai and others

(supra) on the ground that the issue in the said judgment was

pertaining to the filing of the additional written under Order 22

Rule 4(2), which is not the issue involved in this chamber

summons. He placed reliance on para 3 to 5, 9, 10 and 14 of the

said judgment and would submit that the said judgment will not

apply even remotedly to the facts of this case. In his alternate

submission, it is submitted that the judgment of the Supreme

Court in case of Kasturi (supra) was delivered by three Judges,

whereas the judgment of Supreme Court in case of Mumbai

International Airport Pvt. Ltd. (supra) and in case of Sumtibai

(supra) have been delivered by two judges and thus, the ratio laid

down in the judgment of Kasturi (supra) will prevail, which is

squarely applicable to the facts of this case.

18. Insofar as the other four judgments i.e. in case of

Shivshankareppa M. Parakanhatti (supra), Bai Devkabai and

others (supra), K.S. Abraham (supra) and Adapa Venkateswar Rao

and another (supra), relied upon by the applicants are concerned,

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it is submitted by the learned Counsel for the plaintiffs that those

judgments are not applicable to the facts of this case as the facts

in those matters were totally different and in any event the views

expressed by those courts being contrary to the judgments of the

Supreme Court in case of Kasturi(supra) would not bind this

Court.

19. Learned Counsel for the plaintiffs produced a photo showing

the board of the Court Receiver, being in possession of the suit

property. It is submitted that the applicants have pleaded

knowledge of various decrees passed by this Court in respect of

the suit property prior to the date of filing of the suit in various

proceedings, which are not challenged by the applicants

independently. The applicants are not concerned with the suit

property in any manner whatsoever.

20. Mr. Toor, learned Counsel for the applicants in rejoinder

submits that the city survey numbers of the properties are

common. He submits that the applicants are bonafide purchaser of

the suit property having three conveyances alongwith registered

Deeds of Confirmations. The applicants are in possession of the

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suit property as on today and had paid substantial amount of

consideration in respect of the suit properties under various

documents entered into between the owners of the properties and

the applicants. It is submitted that if the applicants are impleaded

as party defendants to the suit, the applicants would file counter

claim in this suit and would claim various reliefs in respect of the

suit property against the parties of the suit. He submits that the

applicants were put in possession of the suit property in the year

2006.

21. It is submitted that even if, the Court Receiver came to be

appointed by this Court, the Court Receiver took formal

possession of the suit property and not physical possession. He

submits that the name of the applicants are shown in the property

cards in respect of the suit property. He submits that the

applicants are thus necessary or at least proper parties for

effective adjudication of the suit and to avoid multiplicity of

proceedings. The consent terms relied upon by the plaintiffs are

after the date of the applicants having placed in possession of the

suit property.

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  Shridhar Sutar                                 16                     901-chs-683.14.doc

22. A perusal of the plaint indicates that the suit has been filed

by Divyesh Construction Private Limited and Heeralal Meghraj

Doshi against Virsen B. Solanki, inter-alia, praying for specific

performance of the MOU dated 28th April, 2006, for a declaration

that the purported termination dated 5th January, 2011 is illegal,

invalid and not binding on the plaintiffs and for further

declaration that the suit agreement is valid, subsisting and binding

between the plaintiffs and the defendant in respect of the suit

property described at Exhibit-"A" to the plaint. It is not in dispute

that in this suit, this Court has appointed the Court Receiver on

27th July, 2011. Insofar as the applicants are concerned, the

applicants claimed their alleged right, title and interest in the suit

property through applicant No.1 and M/s. Royal Associates under

MOU dated 29th September, 2007.

23. A perusal of the report submitted by the Court Receiver

indicates that the said report does not show the possession of the

applicants of the suit property, though the Court Receiver was

appointed much later than the date of alleged possession in

respect of the suit property.

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24. A perusal of the averments made in the affidavit in support

of chamber summons and also affidavit-in-rejoinder and the

documents annexed thereto indicates that the applicants are not

claiming any right, title or interest in the suit property, either

through the plaintiffs or the defendant. The applicants have not

challenged the concerned decrees passed by this Court in respect

of the suit property which are referred in the plaint. The

applicants have also not filed any separate and independent suit

for declaration of their alleged right, title and interest in the suit

property or to protect their alleged possession. The suit is filed by

the plaintiffs in the year 2011, whereas the chamber summons for

seeking impleadment of the applicants as party defendants has

been filed in the year 2014. The alleged possession of the

applicants is seriously disputed by the plaintiffs in this chamber

summons. The applicants could not demonstrate even prima-facie

in this proceeding their alleged possession in respect of any

portion of the suit property.

25. The submission of the learned Counsel for the applicants is

that if the applicants are impleaded as party defendants to the

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suit, applicants then would file counter claim for seeking

appropriate reliefs against the parties to the said suit to avoid

multiplicity of the proceedings. In my view, the alleged dispute in

respect of the alleged title and possession raised by the applicants

in respect of the suit property cannot be adjudicated upon by this

Court in this suit inter-alia praying for specific performance of the

suit agreement. The applicants are neither claiming through the

plaintiffs, nor the defendant in the present suit in respect of the

suit property. The applicants are claiming independent title and

possession in the suit property.

26. The Supreme Court in case of Kasturi (supra) considered the

issue as to whether in a suit 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 contact claiming for an

independent title and possession over the contracted property is

entitled to be added as party defendant in the said suit or not. The

Supreme Court construed the provisions of Order 1 Rule 10(2) of

the Civil Procedure Code, 1908 and has held that necessary

parties in a suit for specific performance of a contract for sale are

the parties to the contract or if they are dead, their legal

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representatives as also a person who had purchased the

contracted property from the vendor. A purchaser is a necessary

party as he would be affected if he had purchased with or without

notice of the contract, but a person who claims adversely to the

claim of a vendor is, however, not a necessary party.

27. The Supreme Court has laid down twin tests for

impleadment of a person as party to the suit i.e. (1) there must be

a right to some relief against such party in respect of the

controversies involved in the proceedings and (2) no effective

decree can be passed in the absence of such party. Supreme Court

held that if a 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. For effective

adjudication of the controversies involved in the suit, presence of

such parties cannot be said to be necessary at all. It is held that 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

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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. The Supreme

Court considered in that matter that the applicants who had

applied for their impleadment had not sought their impleadment

on the strength of the contract in respect of which the suit for

specific performance of the contract had been filed. They had

based their claim on independent title and possession of the

contracted property.

28. Considering such facts, the Supreme Court has held that if

such applicants 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. The Supreme

Court held that 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. In para 16 and 17 of the said judgment of the

Supreme Court, it is held that 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

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plaintiffs on one hand and the applicants on the other hand and if

the same is allowed, it 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. It is

further held that it is difficult to conceive that while deciding the

question as to who is in possession of the contracted property, it

would be open to the court to decide the question of possession of

third party or a stranger as first the lis to be decided is the

enforceability of the contract entered into between the parties to

the suit and thereafter the contract between a third party.

29. It is further held that the plaintiff who has filed a suit for

specific performance of the contract for sale is dominus litis 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. The Supreme

Court in the said judgment also dealt with Section 19 of the

Specific Relief Act, 1963, which is vehemently pressed in motion

by the applicants and held that the persons seeking addition in the

suit for specific performance of the contract for sale which were

not claiming under the vendors, but they were claiming adverse to

the title of the vendor do not fall in any of the categories

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enumerated in sub-sections (a) to (e) of Section 19 of the Specific

Relief Act. It is further held that the said provision is exhaustive

on the question as to who are the parties against whom a contract

for specific performance may be enforced. The applicants are

claiming through some other parties and are claiming an

independent right title and interest in the suit property and also

claiming to be in possession which is seriously disputed by the

plaintiffs.

30. In the facts of this case thus, even if the plaintiffs have

prayed for possession of the suit property, the applicants would be

neither necessary nor proper parties to a suit for specific

performance. Alleged possession of the applicants is disputed by

the plaintiffs. A suit for specific performance cannot be allowed to

be converted into a suit for title of a stranger and for possession. I

am not inclined to accept the submissions of the applicants that

the applicants would file counter claim and would seek various

reliefs against the plaintiffs and/or the defendant upon their

impleadment as parties to the suit. If such a plea of the applicants

is accepted by this court and if the strangers to the contract are

allowed to be impleaded as party defendants to a suit for specific

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performance, a suit for specific performance would be converted

into a suit for title and possession, for adjudication of the alleged

right, title and interest of stranger to the contracts which is subject

matter of a suit for specific performance.

31. In my view, the applicants can file an independent suit for

adjudication of their alleged right, title and interest in the suit

property and for protection of their alleged possession. Even at the

stage of execution of decree if passed in favour of the plaintiffs,

and if applicants are found in possession of the suit property at

that stage, the applicants being not a party to the suit would not

be bound by such decree of possession and can always obstruct

the said decree for possession. Admittedly, the applicants have not

filed any independent suit for adjudication of the title in respect of

the suit property which is asserted by the applicants in this

chamber summons nor have filed any proceedings for protection

of their alleged possession.

32. Insofar as, the judgment of the Supreme Court in case of

Sumtibai and others (supra) vehemently relied upon by the

learned Counsel for the applicants is concerned, it is not in dispute

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that the said judgment is delivered by the two Judges of the

Supreme Court, whereas the judgment of the Supreme Court in

case of Kasturi (supra) is delivered by three Judges. Be that as it

may, the Supreme Court in the said judgment in case of Sumtibai

(supra) had considered the fact that the plaintiff had filed a suit

against the party by name Kapoor Chand, for specific performance

of the contract for sale. The said Kapoor Chand expired. The legal

heirs of the said Kapoor Chand applied for their impleadment. The

Supreme Court, prima-facie, took a view that the purchaser of the

property in dispute was not only Kapoor Chand, but also his sons.

The Supreme Court, accordingly, held that it cannot be said that

the sons of Kapoor Chand had no semblance of title and mere

busybodies or interlopers. Supreme Court distinguished the

judgment in case of Kasturi (supra) and held that the said

judgment will have no application where a third party shows some

semblance of title or interest in the property in dispute. The

Supreme Court clarified that the judgment in case of Kasturi

(supra) can only be understood to mean that a third party cannot

be impleaded in a suit for specific performance if he has no

semblance of title in the property in dispute.

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33. The issue before the Supreme Court in the said judgment

was pertaining to filing of additional written statement under

Order 22 Rule 4(2). The legal heirs of late Kapoor Chand who

were impleaded as parties had filed an application under Order 22

Rule 4(2) read with Order 1 Rule 10 of the Code of Civil

Procedure, interalia, praying that they should be permitted to file

additional written statement and also be allowed to take such

pleas which were available to them. The said application was

rejected. The Supreme Court was not considering the issue as to

whether a stranger to a contract can be added as defendant in a

suit for specific performance. In my view, the judgment of the

Supreme Court in case of Sumtibai and others (supra) is clearly

distinguishable in the facts of this case. The judgment has to be

read considering the facts of their case. The judgment of Supreme

Court in case of Sumtibai and others (supra) thus would not

support the case of the applicants.

34. Insofar as the judgment of Supreme Court in case of

Mumbai International Airport Pvt. Ltd. (supra) relied upon by the

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applicants in support of the submissions that the principles of law

laid down in case of Kasturi (supra) are diluted in the said

judgment and the said judgment is distinguished is concerned, a

perusal of the said judgment in case of Mumbai International

Airport Pvt. Ltd. (supra) clearly indicates that the said judgment

was also delivered by two Judges of the Supreme Court, whereas

the judgment of the Supreme Court in case of Kasturi (supra) was

delivered by three Judges. Be that as it may, the Supreme Court

in the said judgment has held that if the principles relating to

impleadment are kept in view, then the purported divergence in

the judgment in case of Kasturi (supra) and Sumtibai and others

(supra) will be found to be non existence. The observations in

Kasturi (supra) and Sumtibai and others (supra) are with

reference to the facts and circumstances of the respective cases.

35. The applicant before the Supreme Court in the said

judgment was a subseqnent purchaser of the suit property during

the pendency of the suit for specific performance and was seeking

impleadment on the basis that the venture of the applicant and

the plaintiff in the said suit was common and the applicant was a

subsequent purchaser of the said property during the pendency of

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the suit. The Supreme Court held that a judgment has to be read

considering the facts of their particular case. In my view, the facts

before the Supreme Court in the said judgment Mumbai

International Airport Pvt. Ltd. (supra) were totally different and

are clearly distinguishable in the facts in this case and would not

assist the case of the applicants.

36. Insofar as the judgment of Bombay High Court in case of

Shivshankareppa M. Parakanhatti (supra) relied upon by the

learned Counsel for the applicants is concerned, it is held by this

Court that in a suit for specific performance the general rule is

that a stranger to the contract cannot be sued upon it. Such

general rule is subject to certain modifications. This Court

considered an illustration that strangers are made parties as an

exception to the rule in cases of novatio, in cases of an interest

arising under a prior contract and in cases where it is desirable to

avoid multiplicity of suits. The facts before this Court are totally

different and would not assist in the case of the applicants.

37. Insofar as judgment in case of Bai Devkibai and others

relied upon by the learned Counsel for the applicants is

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concerned, the Gujarat High Court held that the general rule is

subject to the recognised exceptions which are in conformity with

the practice of the Court of Chancery. In cases where it is

desirable to avoid multiplicity of suits and where interest of

persons who are in actual possession of the property in question

might be affected, strangers to the contract can be sued upon.

The applicants in the matter were admittedly in possession of the

suit property. In this case the alleged possession claimed by the

applicants is seriously disputed by the plaintiffs. The facts before

the Gujarat High Court were totally different and thus the said

judgment is clearly distinguishable in the facts of this case and

would not assist the case of the applicants.

38. Insofar as the judgment of the Kerala High Court in case of

K. S. Abraham (supra) relied upon by the learned Counsel for the

applicants is concerned, it is held that under Order 1 Rule 10(2)

of the Code of Civil Procedure, 1908 the Court has been

empowered to add party in a suit, if from the pleadings and other

circumstances it is found that the parties interested in the subject

matter of the litigation and without the impleadment of that

party, issues cannot be finally and effectually be decided. In this

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case, the applicants are neither claiming through the plaintiffs nor

the defendant and thus cannot be impleaded as party defendants

to the suit for specific performance. The applicants, prima-facie

have to demonstrate before this Court that they are interested in

the subject matter of the litigation and without their impleadment,

the suit cannot be finally and effectually decided. The judgment of

the Kerala High Court, thus, relied upon by the applicants, would

not assist the case of the applicants.

39. Insofar as judgment of the Andhra Pradesh High Court in

case of Adapa Venkateswar Rao and another (supra) is concerned,

the Andhra Pradesh High Court had held that a situation may be

that the defendants have sold away their property to the

applicants and had lost interest in the suit proceedings. It was

held that whether the subject matter of a litigation is a declaration

as regards status or a legal character, the rule of presence or direct

interest may be relaxed in a suitable case where the Court is of the

opinion that by adding that party, it would be in a better position

effectually and completely to adjudicate upon the controversy. In

my view, the facts of the Andhra Pradesh High Court in the said

judgment were totally different.

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40. It is not the case of the applicants that the applicants have

purchased the suit property either from the plaintiffs or the

defendant before filing of the suit or during the pendency of the

suit. The judgment of the Andhra Pradesh High Court is clearly

distinguishable in the facts of this case and would not assist in the

case of the applicants. In my view, the principles of law laid down

by the Supreme Court in case of Kasturi (supra) are squarely

applicable to the facts of this case and those principles are not

diluted by the Supreme Court in case of Sumtibai (supra) or in

case of Mumbai International Airport Pvt. Ltd. (supra) and are

binding on this Court. I am respectfully bound by the said

judgment. In my view, the applicants being neither necessary nor

proper parties to the suit, cannot be impleaded as party

defendants to the suit under Order 2 Rule 10 of the Code of Civil

Procedure, 1908.

41. I pass the following order.

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                                        O R D E R

Chamber Summons No. 683 of 2014 is dismissed with costs quantified at Rs.25,000/-, which shall be paid by the applicants to the plaintiffs within a period of two weeks from today.

( R. D. DHANUKA, J.)

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