Sadhna Alpesh Shah vs Dhruvkumar Anantshankar Shukla
2021 Latest Caselaw 15413 Guj

     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

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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

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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

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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

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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

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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

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.

C/SCA/18086/2019 JUDGMENT DATED: 01/10/2021

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

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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

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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

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

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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.

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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.

C/SCA/18086/2019 JUDGMENT DATED: 01/10/2021

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

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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