Mohanlal Bhikalal Shah vs Sou. Usha Jaywant Chandratne And ...
2021 Latest Caselaw 1609 Bom

                                                                              (13) WP-7697-19.doc

BDP-SPS


 Bharat
 D.
 Pandit                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CIVIL APPELLATE JURISDICTION
 Digitally signed
 by Bharat D.
 Pandit
 Date:
 2021.01.28




                                       WRIT PETITION NO. 7697 OF 2019
 15:45:46 +0530




                    Mohanlal Bhikalal Shah                 .... Petitioner.
                            V/s
                    Sou Usha Jaywant Chandratne
                    and Others                             ..... Respondents.
                    ----
                    Ms. Prabha Badadare a/w Mr. Omkar Nagvekar for the Petitioner.
                    Mr. J.H. Oak for Respondent Nos. 1 and 2.
                    ----
                                      CORAM: NITIN W. SAMBRE, J.

                                          DATE:     JANUARY 25, 2021
                    P.C.:-

                    1]       In a suit for specific performance pending on the file of 3 rd Joint

Civil Judge, Senior Division, Kalyan, Application-Exhibit 88 came to be

moved under the provisions of Order 1 Rule 10 of the Civil Procedure

Code for impleading Respondent Nos. 1 and 2 as party-defendants,

which came to be allowed vide order impugned dated 28/1/2016. As

such, this Petition is by original Defendant.

2] Relying on the judgment of the Apex Court in the matter of

Kasturi vs. Iyyamperumal and Others reported in (2005) 6 SCC 733,

particularly para 15, learned Counsel for the Petitioner would urge

that in a suit for specific performance, it is not open for the Trial Court

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to look into the title of newly added Defendants/Respondents. In the

aforesaid backdrop, prayer is, the order impugned is not sustainable

and is liable to be quashed and set aside.

3] The learned Counsel for the Respondents invited attention of this

Court to the pleadings in the application moved under Order 1 Rule 10

so as to claim that the suit property was purchased by mother of the

newly added Defendants to the suit. According to him, Respondent

Nos. 1 and 2 have already initiated RCS No. 31 of 2010 which is for

partition and same is pending adjudication on the file of Civil Judge,

Junior Division, Murbad. In the aforesaid backdrop, according to

him, Respondents/Applicants are not stranger to the suit for specific

performance and as such this Petition is liable to be rejected.

4]    Considered rival submissions.



5]    Para 15 of the judgment in the matter of Kasturi cited supra

reads thus:-

15. As discussed hereinearlier, whether respondents 1 and 4 to 11 were proper parties or not, the governing principle for deciding the question would be that the

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presence of respondents 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 respondents 2 and 3 and whether contract was executed by the appellant and the respondents 2 and 3 for sale of the contracted 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 respondents 2 and 3. It is an admitted position that the respondents 1 and 4 to 11 did not seek their addition in the suit on the strength of the contract in respect 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 that in the event, the respondents 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 Pratap Vs. Sambhu Saran Sinha reported in 1996(10) SCC, 53, this Court had taken the

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same view which is being taken by us in this judgment 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 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, 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 respondents 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 respondents 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 respondents 2 and 3, then, the Court shall direct execution of deed of sale in favour of the appellant in the event respondents 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 respondents 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 respondents 1 and 4

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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 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 respondents 1 and 4 to 11 have to be sued for taking possession if they are in possession of the decretal property."

6] Fact remains that whether Respondents i.e. newly added

Defendants are entitled for their share in the suit property is a subject

matter of adjudication in the parallel suit for partition pending on the

file of Civil Judge, Junior Division, Murbad. In the backdrop of the

law laid down in the matter of Kasturi cited supra, scope for

appreciation in a suit for specific performance is restricted only to the

extent of party to the contract. A stranger cannot claim impleadment

by virtue of provisions of Order 1 Rule 10 CPC.

7] In the aforesaid backdrop, it is apparent that the view expressed

by the Court below while allowing the application for impleadment in

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its order impugned in the Petition is, on its face value, contrary to the

view expressed by the Apex Court in its judgment in the matter of

Kasturi cited supra.

8] In the aforesaid background, Petition is allowed by quashing the

order impugned passed below Exhibit-88 on 28/1/2016. Application

Exhibit-88 as such stands rejected.

9] However this will not preclude the Respondents/newly added

Defendants from moving before the learned Principal District Judge for

clubbing of the suit for specific performance and Regular Civil Suit for

partition being RCS No.31 of 2010 for partition pending on the file of

Civil Judge, Junior Division.

( NITIN W. SAMBRE, J. )