Gagandeep Singh & Ors vs Sardar Prithipal Singh Chawla & ...
2015 Latest Caselaw 3229 Del

                                                                         #15
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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS(OS) 1100/2012 & I.As. 15459/2014

       GAGANDEEP SINGH & ORS ..... Plaintiffs
                    Through  Mr. Yogesh Kumar Jagia with
                             Mr. Amit Sood and Mr. Abhijeet
                             Negi, Advocates

                          versus

       SARDAR PRITHIPAL SINGH
       CHAWLA & ORS           ..... Defendants
                    Through   Mr. A.J. Khurana, Proxy Counsel for
                              Mr. M.J. Ahluwalia, Advocate for
                              D-1 and 2.
                              Mr. Jinendra Jain with Mr. Abhishek
                              Jain, Advocates for D-4.

%                                      Date of Decision: 22nd April, 2015

CORAM:
HON'BLE MR. JUSTICE MANMOHAN

                          JUDGMENT

MANMOHAN, J: (Oral)

I.A. 2435/2015 [U/o. 8 Rule 1 CPC]

1. Mr. Yogesh Kumar Jagia, learned counsel for the plaintiffs/applicants wishes to withdraw prayers (b) and (h) of the present suit. He also fairly states that he wishes to withdraw his case against defendant no. 4.

2. The plaintiff being the dominus litus, defendant no. 4 is deleted from the array of parties.

3. At this stage, learned counsel for the defendant no. 4 states that he is a necessary and proper party to the present proceedings as he has a decree from a district court for permanent injunction restraining the defendant nos. 1 and 2 from selling the suit property.

4. Learned counsel for defendant no. 4 also states that defendant no. 4 has filed a fresh suit being CS (OS) 846/2015 against defendant nos. 1 and 2 and in that proceeding, a status quo order has been passed with regard to the present suit property.

5. Learned counsel for the plaintiff submits that it is strange that despite seeking impleadment in the present suit, the defendant no. 4 has not impleaded the present plaintiffs in his suit being CS (OS) 846/2015. He also points out that a three Judge Bench of the Supreme Court of India in Kasturi Vs. Iyyamperumal and Ors., (2005) 6 SCC 733 has held that third parties should not be impleaded in suits for specific performance. The relevant portion of the judgment relied upon by learned counsel for plaintiff is reproduced hereinbelow:-

"13. From the aforesaid discussion, 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 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.

xxxx xxxx xxxx xxxx

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 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 Respondents 2 and 3 and whether contract was executed by the appellant and 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 Respondents 2 and 3. It is an admitted position that 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, 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 v. Sambhu Saran Sinha [(1996) 10 SCC 53] this Court had taken the 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 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 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 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 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, Respondents 1 and 4 to 11 would be at liberty either to obstruct execution in order to protect their possession by taking recourse to the relevant provisions of 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 Respondents 1 and 4 to 11 have to be sued for taking possession if they are in possession of the decretal property.

16. That apart, from a plain reading of the expression used in sub-rule (2) Order 1 Rule 10 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 Respondents 2 and 3 and Respondents 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 Respondents 1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made hereinearlier, Respondents 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."

(emphasis supplied)

7. In any event, the Supreme Court in Bharat Karsondas Thakkar vs. Kiran Construction Company and Others, (2008) 13 SCC 658 in similar facts rejected impleadment application of a third party which had acquired an independent right in the suit property by way of a separate decree, but was not a party to the agreement to sell. The Supreme Court has held that the decree passed in third party's favour, could not be assailed in a suit for specific performance. The relevant portion of the said judgment is reproduced hereinbelow:-

"28. Along with that is the other question, which very often raises its head in suits for specific performance, that is, whether a stranger to an agreement for sale can be added as a party in a suit for specific performance of an agreement for sale in view of Section 15 of the Specific Relief Act, 1963. The relevant provision of Section 15 with which we are concerned is contained in clause (a) thereof and entitles any party to the contract to seek specific performance of such contract. Admittedly, the appellant herein is a third party to the agreement and does not, therefore, fall within the category of "parties to the agreement". The appellant also does not come within the ambit of Section 19 of the said Act, which provides for relief against parties and persons claiming under them by subsequent title. This aspect of the matter has been dealt with in detail in Kasturi case [(2005) 6 SCC 733] . While holding that the scope of a suit for specific performance could not be enlarged to convert the same into a suit for title and possession, Their Lordships observed that a third party or a stranger to the

contract could not be added so as to convert a suit of one character into a suit of a different character.

xxxx xxxx xxxx xxxx

30. The proper course of action for Respondent 1 would have been to challenge the consent decree not in its suit for specific performance, but in a separate suit for declaration that the consent decree ought not to have been passed and the same was not binding on the respondent. By seeking amendment of the plaint in its suit for specific performance, Respondent 1 has created its own difficulties by substantially changing the nature and character of the original suit, which is not permissible in law. If, as was held in Durga Prasad case [AIR 1954 SC 75] the impleadment of the appellant was only for the purpose of joining him in the conveyance if Respondent 1's suit ultimately succeeded, the ratio of the said decision would possibly have been applicable to the facts of this case. Unfortunately, that is not the case here, since Respondent 1 has by amending the plaint prayed for a declaration that the consent decree obtained by the appellant was not binding on him and also for a declaration that the consent decree was null and void and was liable to be quashed.

31. In our view, the decision of this Court in Durga Prasad case [AIR 1954 SC 75] cannot be brought to the aid of the case made out by Respondent 1. Furthermore, the Division Bench of the High Court also appears to have committed an error in observing that the decision in Anil Kumar Singh case [(1995) 3 SCC 147] was not applicable to the facts of this case, despite the fact that on a consideration of the provisions of Order 1 Rule 10 and Order 22 Rule 10 of the Code, this Court held that since the plaintiff in the said matter was merely seeking the specific performance of an agreement of sale, any attempt to implead a third party to the contract in the suit would be hit by the provisions of Section 15(a) of the Specific Relief Act, 1963. In fact, in Anil Kumar Singh case [(1995) 3 SCC 147] in a suit for specific performance, the respondent, who was not a party to the contract but wanted to be impleaded as a defendant on

the ground that he had acquired subsequent interest as a co- owner by virtue of a decree obtained from the court, was held not entitled to be joined as a defendant either under Order 1 Rule 3 or under Order 1 Rule 10(ii) of the Code having regard to the provisions of Sections 15 and 6 of the Specific Relief Act, 1963.

32. As it appears, Respondent 1 was proceeding before a wrong forum to establish its stand that the decree obtained by the appellant was a nullity and was not binding on it.

33. In that view of the matter, although we are setting aside the order of the Division Bench of the High Court impugned in this appeal, Respondent 1 may, if so advised, file a separate suit to challenge the consent decree in view of the fact that he had been pursuing his claim before the wrong forum."

(emphasis supplied)

8. This Court also finds it strange that in a case where the alleged transaction between plaintiff and defendant nos. 1 and 2 was of Rs. 2.20 crores, a suit was filed in the district court and a decree was obtained with consent in three months.

9. Consequently, this Court is of the view that defendant no. 4 is not a necessary and proper party to the present suit proceeding especially when the relief against defendant no. 4 including the relief for injunction has been abandoned.

10. This Court clarifies that the observations made in the present application are only in the context as to whether defendant no. 4 should continue to remain as a party to the present suit or not. The observations made by this Court shall not come in the way of any proceeding filed by defendant no. 4 and/or any other proceeding to be filed by her in the future.

11. With the aforesaid observations, present application stands disposed of.

I.A. 8129/2015 [U/o. 39 Rule 10 CPC] Issue notice to non applicants.

Mr. A.J. Khurana, Advocate accepts notice on behalf of non- applicants/defendant nos. 1 and 2. He prays for and is permitted to file a reply-affidavit within four weeks. Rejoinder, if any, be filed before the next date of hearing.

List on 4th September, 2015.

MANMOHAN, J APRIL 22, 2015 rn