Gujarat High Court
Sanjay Viththalbhai Senjaliya vs Panchabhai Dehabhai Koli (Govani) on 27 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20907 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 20905 of 2016
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SANJAY VITHTHALBHAI SENJALIYA & ANR.
Versus
PANCHABHAI DEHABHAI KOLI (GOVANI) & ORS.
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Appearance:
MS TRUSHA PATEL LD SENIOR ADVOCATE with MR TATTVAM K
PATEL(5455) for the Petitioner(s) No. 1,2
MR TANMAY B KARIA(6833) for the Respondent(s) No. 2,3,4,5
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 27/11/2025
ORAL ORDER
1. By way of the present petition under Article 227 of the
Constitution of India, the petitioners - original plaintiffs - have
called in question the legality and validity of the order dated
19.10.2016 passed below Exhibit-55 in Special Civil Suit No.
117 of 2010 by the learned Principal Civil Judge,
Surendranagar. By the impugned order, the learned Trial
Court, exercising powers under Order I Rule 10 of the Code of
Civil Procedure, allowed the application preferred by
respondent Nos. 2 to 5 (third parties herein) seeking their
impleadment as defendants in the suit.
2. Brief Facts:
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2.1 The dispute pertains to the land bearing Survey No. 111
paiki 11, situated at village Mevasa, Taluka Chotila, District
Surendranagar (hereinafter referred to as "the suit land").
The said land originally stood in the name of Dehabhai.
2.2 Upon demise of Dehabhai, the names of his legal heirs,
including the present respondents and other daughters, were
mutated in the revenue record by virtue of Mutation Entry
Nos. 548 and 549 dated 02.07.2003.
2.3 On the very same date i.e. 02.07.2003, by Mutation
Entry Nos. 552 and 553, the daughters of Dehabhai, namely
Nathiben, Labhuben, Liliben, Ziniben, Premiben and
Bhanuben, relinquished their respective rights in the suit
land. It was recorded in the said entries that the
relinquishment was made after service of notice and upon
statements acknowledging such relinquishment. Thereafter,
the suit land came to be recorded exclusively in the name of
Panchabhai in the revenue record.
2.4 On 15.04.2010, Panchabhai executed an Agreement to
Sell in favour of the present petitioners. A part of the sale
consideration was paid by cheque, while the remaining
amount was paid in cash.
2.5 As the suit land was classified as Vidi land, Panchabhai,
on 09.08.2010, sought requisite permission to sell the land to
the petitioners.
2.6 Subsequently, allegedly owing to escalation in market
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price, despite receipt of substantial consideration, respondent
No.1 sought to retreat from the transaction. Consequently,
the petitioners issued a legal notice dated 18.12.2010 calling
upon respondent No.1 to perform his contractual obligations.
2.7 In reply dated 23.12.2010, the defendant admitted
execution of the Agreement to Sell but failed to evince his
readiness and willingness to perform the contract, citing the
plea that the property was agreed to be sold for a higher
amount.
2.8 In the said circumstances, the petitioners were
constrained to institute Special Civil Suit No. 117 of 2010
before the Civil Court at Surendranagar on 30.12.2010,
seeking specific performance of the agreement to sell and a
decree of permanent injunction.
2.9 An application for temporary injunction preferred at
Exhibit-5 came to be allowed on 05.03.2011. Issues were
thereafter framed and the trial commenced with the filing of
the plaintiff's examination-in-chief at Exhibit-18 on
01.12.2011. The stage of cross-examination of the plaintiff
was closed on 07.03.2013, which was subsequently reopened
subject to a condition to complete the cross-examination
without delay.
2.10 On 04.09.2015, out of the six daughters of Dehabhai,
Nathiben along with three other daughters -- who had already
relinquished their rights in the year 2003 and were sisters of
the original defendant -- filed an application under Order I
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Rule 10 CPC at Exhibit-55 seeking impleadment as defendants
in the suit.
2.11 The petitioners raised objections to the said application
and also submitted written arguments supported by
judgments of the Hon'ble Supreme Court and this Court in
substantiation of their contention.
3. The learned Trial Court, after hearing the parties,
passed the impugned order dated 19.10.2016, thereby
allowing Exhibit-55 and directing respondent Nos. 2 to 5 to be
impleaded as defendants in the suit.
4. Being aggrieved and dissatisfied by the aforesaid order,
the present petition has been filed invoking the supervisory
jurisdiction of this Court under Article 227 of the Constitution
of India.
5. Heard learned senior advocate Ms. Trusha Patel with
Mr. Tattvam K Patel, learned advocate for the petitioners and
Mr. Sheshav Patel learned advocate on behalf of learned
advocate Mr. Tanmay B Karia for the respondents. The
respondent No.1 though served, has chosen not to appear.
6. As the controversy involved lies within a narrow
compass, and with the consent of the learned advocates
appearing for the respective parties, the present petition is
taken up for final hearing at the stage of admission itself.
7. Ms. Patel, learned Senior Advocate appearing on behalf
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of the petitioners, while assailing the impugned order,
advanced the following submissions:
7.1 Learned Senior Advocate submitted that the impugned
order passed by the learned Trial Court is ex facie illegal and
contrary to the well-settled principle of dominus litis. It was
contended that the Trial Court has exceeded its jurisdiction in
directing impleadment of third parties and, therefore, the
impugned order deserves to be quashed and set aside.
7.2 She further submitted that by passing the impugned
order the learned Trial Court has, in effect, transformed a suit
for specific performance into a title dispute, which is legally
impermissible.
7.3 It was further contended that in a suit instituted for
seeking specific performance of a contract, a non-signatory to
the agreement cannot be permitted to be joined as a party to
the proceedings. On this ground also, the impugned order is
unsustainable and requires to be set aside.
7.4 Learned Senior Advocate further argued that if
respondent Nos. 2 to 5 claim any independent rights or
interest in the suit property, the same may be agitated
through separate independent civil proceedings. They cannot,
by any stretch of imagination, be permitted to seek
impleadment in a suit between the contracting parties for
enforcement of the agreement to sell. On this count as well,
interference of this Court was sought.
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7.5 It was next submitted that the application for
impleadment having been filed at a belated stage, is nothing
but a calculated attempt to delay the adjudication of the suit
and obstruct its culmination. Learned Senior Advocate,
therefore, urged that the impugned order be quashed and set
aside.
7.6 In support of the above submissions, learned Senior
Advocate placed reliance upon the judgment of the Hon'ble
Supreme Court in the case of Gurmit Singh Bhatia v. Kiran
Kant Robinson, rendered in Civil Appeal Nos. 5522-5523
of 2019.
8. On the basis of the aforesaid submissions, learned
Senior Advocate prayed for allowing the present petition and
for quashing and setting aside the impugned order.
9. Per contra, Mr. Sheshav Patel, learned advocate
appearing for respondent Nos. 2 to 5, supported the
impugned order and advanced the following submissions:
9.1 Learned advocate submitted that the order passed by
the learned Trial Court is just, proper, and in accordance with
law and, therefore, cannot be termed as illegal or perverse in
any manner. It was thus urged that the present petition
deserves to be dismissed.
9.2 It was further contended that the impugned order
cannot be said to be either without jurisdiction or in excess of
jurisdiction. Consequently, this Court, while exercising
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supervisory jurisdiction under Article 227 of the Constitution
of India, ought not to interfere with the said order.
9.3 Learned advocate further submitted that respondent
Nos. 2 to 5, being the sisters of the original defendant No.1,
have a legitimate right and interest in the suit property, which
is ancestral in nature. It was contended that since the subject
matter of the suit pertains to a property in which respondent
Nos. 2 to 5 possess ancestral rights and interests, they qualify
as necessary and proper parties to the proceedings. The
learned Trial Court, therefore, rightly exercised jurisdiction
under Order I Rule 10 of the Code of Civil Procedure while
allowing their impleadment.
10. On the strength of the aforesaid submissions, Mr. Patel,
learned advocate for respondent Nos. 2 to 5, prayed for
dismissal of the present petition.
11. Having considered the submissions advanced by the
learned advocates appearing for both the sides, the short
question that arises for determination is whether the
petitioners - original plaintiffs - can be compelled to implead
third persons in a suit for specific performance, particularly
when no relief is claimed against such persons?
12. In order to answer the aforesaid question, certain
undisputed facts require consideration. Admittedly, the suit
has been instituted by the plaintiffs against respondent No.1 -
the original defendant - seeking specific performance of the
agreement to sell executed by him. It is also undisputed that
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at the time of execution of the agreement, respondent No.1
stood recorded as the sole owner of the suit property in the
revenue records.
12.1 Initially, upon the death of their father, all the daughters
acquired rights in the property. However, subsequently, by
virtue of relinquishment deeds, their shares were transferred
in favour of their brother, respondent No.1, and since then the
property has been standing solely in his name.
12.2 It is further undisputed that till date, the sisters have
neither challenged any of the revenue entries nor instituted
any suit seeking declaration of their rights in the family
property.
12.3 In these circumstances, and particularly when
respondent Nos. 2 to 5 are not signatories to the agreement to
sell, and have not initiated any independent proceedings
asserting their alleged rights, they cannot be treated as either
necessary or proper parties to the suit for specific
performance filed by the plaintiffs against respondent No.1.
13. At this stage, it would be apt to take note of the decision
of the Hon'ble Supreme Court in the case of Gurmit Singh
Bhatia (Supra), the relevant quoted as under:-
5.1 At the outset, it is required to be noted that the
original plaintiffs filed the suit against the original
owner - vendor - original defendant no.1 for specific
performance of the agreement to sell with respect to
suit property dated 3.5.2005. It is an admitted
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position that so far as agreement to sell dated
3.5.2005 of which the specific performance is sought,
the appellant is not a party to the said agreement to
sell. It appears that during the pendency of the
aforesaid suit and though there was an injunction
against the original owner - vendor restraining him
from transferring and alienating the suit property,
the vendor executed the sale deed in favour of the
appellant by sale deed dated 10.07.2008. After a
period of approximately 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. The appellant claimed the right on the
basis of the said sale deed as well as the agreement
to sell dated 31.3.2003 alleged to have been executed
by the original vendor. The said application was
opposed by the original plaintiffs. The learned trial
Court despite the opposition by the original plaintiffs
allowed the said application which has been set aside
by the High Court by the impugned judgment and
order. Thus, it was an application under Order 1 Rule
10 of the CPC by a third party to the agreement to
sell between the original plaintiffs and original
defendant no.1 (vendor) and the said application for
impleadment is/was opposed by the original plaintiffs.
Therefore, the short question which is posed for
consideration before this Court is, whether the
plaintiffs can be compelled to implead a person in the
suit for specific performance, against his wish and
more particularly with respect to a person against
whom no relief has been claimed by him?
5.2 An identical question came to be considered
before this Court in the case of Kasturi (supra) and
applying the principle that the plaintiff is the dominus
litis, in the similar facts and circumstances of the
case, this Court observed and held that the question
of jurisdiction of the court to invoke Order 1 Rule 10
CPC to add a party who is not made a party in the
suit by the plaintiff shall not arise unless a party
proposed to be added has direct and legal interest in
the controversy involved in the suit. It is further
observed and held by this Court that two tests are to
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be satisfied for determining the question who is a
necessary party. The tests are - (1) there must be a
right to some relief against such party in respect of
the controversies involved in the proceedings; (2) no
effective decree can be passed in the absence of such
party. It is further observed and held that in a suit for
specific performance the first test can be formulated
is, to determine whether a party is a necessary party
there must be a right to the same relief against the
party claiming to be a necessary party, relating to the
same subject matter involved in the proceedings for
specific performance of contract to sell. It is further
observed and held by this Court that in a suit for
specific performance of the contract, a proper party
is a party whose presence is necessary to adjudicate
the controversy involved in the suit. It is further
observed and held that the parties claiming an
independent title and possession adverse to the title
of the vendor and not on the basis of the contract, are
not proper parties and if such party is impleaded in
the suit, the scope of the suit for specific performance
shall be enlarged to a suit for title and possession,
which is impermissible. It is further observed and
held that a third party or a stranger cannot be added
in a suit for specific performance, merely in order to
find out who is in possession of the contracted
property or to avoid multiplicity of the suits. It is
further observed and held by this Court that a third
party or a stranger to a contract cannot be added so
as to convert a suit of one character into a suit of
different character.
5.3 In paragraphs 15 and 16, this Court observed
and held as under:
"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
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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
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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 subrule (2) Order 1
Rule 10 CPC "all the questions involved in
the suit" it is abundantly clear that the
legislature clearly meant that the
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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
plaintiffappellant 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."
That thereafter, after observing and holding as
above, this Court further observed that in view of the
principle that the plaintiff who has filed a suit for
specific performance of the contract to sell is the
dominus litis, he cannot be forced to add parties
against whom, he does not want to fight unless it is a
compulsion of the rule of law.
5.4 In the aforesaid decision in the case of
Kasturi(supra), it was contended on behalf of the
third parties that they are in possession of the suit
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property on the basis of their independent title to the
same and as the plaintiff had also claimed the relief
of possession in the plaint and the issue with regard
to possession is common to the parties including the
third parties, and therefore, the same can be settled
in the suit itself. It was further submitted on behalf of
the third parties that to avoid the multiplicity of the
suits, it would be appropriate to join them as party
defendants. This Court did not accept the aforesaid
submission by observing that merely in order to find
out who is in possession of the contracted property, a
third party or a stranger to the contract cannot be
added in a suit for specific performance of the
contract to sell because they are not necessary
parties as there was no semblance of right to some
relief against the party to the contract. It is further
observed and held that in a suit for specific
performance of the contract to sell the lis between
the vendor and the persons in whose favour
agreement to sell is executed shall only be gone into
and it is also not open to the Court to decide whether
any other parties have acquired any title and
possession of the contracted property.
5.5 It is further observed and held by this Court in
the aforesaid decision that if the plaintiff who has
filed a suit for specific performance of the contract to
sell, even after receiving the notice of claim of title
and possession by other persons (not parties to the
suit and even not parties to the agreement to sell for
which a decree for specific performance is sought)
does not want to join them in the pending suit, it is
always done at the risk of the plaintiff because he
cannot be forced to join the third parties as
partydefendants in such suit. The aforesaid
observations are made by this Court considering the
principle that plaintiff is the dominus litis and cannot
be forced to add parties against whom he does not
want to fight unless there is a compulsion of the rule
of law.
5.6 Therefore, considering the decision of this
Court in the case of Kasturi (supra), the appellant
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cannot be impleaded as a defendant in the suit filed
by the original plaintiffs for specific performance of
the contract between the original plaintiffs and
original defendant no.1 and in a suit for specific
performance of the contract to which the appellant is
not a party and that too against the wish of the
plaintiffs. The plaintiffs cannot be forced to add party
against whom he does not want to fight. If he does
so, in that case, it will be at the risk of the plaintiffs.
14. In view of the foregoing discussion, the decision of the
Hon'ble Supreme Court, and having regard to the facts of the
present case, this Court is of the considered opinion that
respondent Nos. 2 to 5, not being signatories to the
agreement to sell, cannot be permitted to participate in the
proceedings for specific performance on the basis of their
alleged claims. Their impleadment would, in effect, convert a
suit for specific performance into a title dispute, which is
impermissible in law. Consequently, the impugned order
cannot be sustained and is liable to be quashed and set aside.
15. Resultantly, the present petition succeeds. The
impugned order dated 19.10.2016 passed by the learned
Principal Civil Judge, Surendranagar, is hereby quashed and
set aside.
(NIRAL R. MEHTA,J)
NIHAL PATEL
