Kerala High Court
Soosa Nayagam vs R. Sajeev Kumar on 20 February, 2025
2025:KER:14417
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 20TH DAY OF FEBRUARY 2025 / 1ST PHALGUNA, 1946
RFA NO. 359 OF 2022
AGAINST THE JUDGMENT DATED 17.08.2022 IN O.S.NO.62 OF 2009 OF II
ADDITIONAL SUB COURT,THIRUVANANTHAPURAM
APPELLANTS/DEFENDANTS:
1 SOOSA NAYAGAM
AGED 67 YEARS
S/O.BERNABAS, RESIDING AT T.C. NO. 27/482 (2) SOORYA, URRA
NO.34-A, NEAR R.C. JUNCTION, (NEAR DISTRICT CO-OPERATIVE BANK),
VANCHIYOOR-P.O., THIRUVANANTHAPURAM, PIN - 695035 NOW RESIDING
AT 6 GARWOOD BLVD, CLAYTON NJ 08312-2416, UNITED STATES OF
AMERICA. REP. BY HIS POWER OF ATTORNEY HOLDER, DOMENIC RAPHAEL,
S/O T. V. RAPHEAL, RESIDING AT KARUNYAM, 51/A, CHETHANA NAGAR,
VALATHUNGAL. P.O, ERAVIPURAM, KOLLAM-691011.
2 SUSY SUSAN
AGED 56 YEARS
W/O.SOOSA NAYAGAM, T.C.NO. 27/482 (2), SOORYA, URRA NO.34-A
NEAR R.C. JUNCTION, (NEAR DISTRICT CO-OPERATIVE BANK),
VANCHIYOOR-P.O., THIRUVANANTHAPURAM, PIN - 695035
BY ADVS.
M.R.ANANDAKUTTAN
M.HEMALATHA
MAHESH ANANDAKUTTAN
M.J.SAJITHA
RESPONDENT/PLAINTIFF:
R.SAJEEV KUMAR
AGED 53 YEARS
S/O.RADHAKRISHNAN, GOVT. SERVANT FROM TC NO.32/1081(1),
KARIKKAKAM MURI, KADAKAMPALLLY VILLAGE, THIRUVANANTHAPURAM, NOW
RESIDING AT GOVERNMENT QUARTERS NO. 31/332, MELARANNOOR,
THYCAUD VILLAGE, KARAMANA.P.O, THIRUVANANTHAPURAM, PIN - 695002
BY ADVS.
P.VISWANATHAN (SR.)
AJITH VISWANATHAN
P.SUJITH KUMAR(K/452/2005)
SAYED MANSOOR BAFAKHY THANGAL(K/001322/2018)
M.SRIRAM(K/307/2019)
SHIBU JOSEPH(S-410)
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12.2.2025, THE COURT
ON 20.02.2025, DELIVERED THE FOLLOWING:
R.F.A.NO.359 OF 2022 2
2025:KER:14417
CR
JUDGMENT
Dated this the 20th day of February, 2025
Defendant Nos.1 and 2 in O.S.No.62/2009 on the files of
the II Additional Sub Court, Thiruvananthapuram, assail decree
and judgment in the above case in this appeal filed under Section
96 r/w Order XLI Rule 1 of the Code of Civil Procedure, 1908 (for
short, 'the C.P.C.' hereinafter). The sole plaintiff is the respondent
herein.
2. Heard the learned counsel for the
appellants/defendants and the learned counsel appearing for the
respondent/plaintiff, in detail. Perused the trial court records.
3. I shall refer the parties in this appeal as 'plaintiff' and
'defendants' with reference to their status before the trial court,
hereafter.
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4. Bereft of unnecessary embellishments, the case of the
plaintiff is that defendant Nos.1 and 2 along with Sri.Better Joy,
nephew of the 1st defendant, who owned and possessed plaint A
schedule property, having an extent of 22 cents, agreed to sell the
property in favour of the plaintiff and accordingly, initially on
18.2.2007, an agreement was executed in this regard by fixing the
total value of the property at Rs.4 Lakh, out of which, Rs.25,000/-
(Rupees Twenty Five Thousand only) was paid as advance sale
consideration. Again, the agreement was renewed on 18.4.2007
and the defendants received Rs.40,000/- (Rupees Forty Thousand
only). Thereafter, on 26.4.2007, the defendants along with
Sri.Better Joy jointly executed a sale deed in favour of the plaintiff
with respect of 10 cents of property in their joint ownership and
during execution of sale deed No.1314/2007, Rs.3,60,000/-
(Rupees Three Lakh Sixty Thousand only) (in installments) out of
Rs.4 Lakh towards the agreed sale consideration was accepted by
the defendants on getting the same endorsed on the overleaf of the
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agreement dated 18.4.2007. Since there was failure to execute the
remaining extent of property scheduled as 'B' in the plaint, the
above suit was filed.
5. Defendants filed joint written statement inter alia
admitting the execution of agreement. The contention raised by
the defendants further is that, since plaint B schedule is the
property belongs to the 2nd defendant, the 1st defendant is not a
necessary party and therefore, the suit is bad for misjoinder. At the
same time, it is contended that since Sri.Better Joy is not arrayed
as a defendant, the suit is bad for non-joinder. According to the
defendants, the sale deed in respect of plaint B schedule property
could not be executed because of the failure of the plaintiff to
arrange the balance sale consideration, though the 2 nd defendant
has been ready to execute the sale deed.
6. Trial court raised necessary issues and recorded
evidence. PW1 was examined and Exts.A1 to A12 were marked on
the side of the plaintiff. No evidence let in by the defendants.
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Thereafter, the trial court granted decree as under:
In the result, the suit is decreed on the following terms:-
1. The 2nd defendant shall execute a deed of sale with
respect to the plaint B schedule property in favour
of the plaintiff after receiving the balance
consideration of Rs.40,000/- (Rupees forty
thousand) from the plaintiff within a period of three
months from the day instant.
2. On failure, the plaintiff is allowed to deposit the
balance sale consideration before the court within
one month if not deposited yet, and to get executed
the sale deed and possession through court
3. Considering the facts and circumstances, parties
are directed to bear their respective costs.
7. The learned counsel for the defendants argued that
filing of suit against the 1st defendant for non-performance of
contract by the 2nd defendant is bad in law and thereby, the suit
must fail on the ground of misjoinder. It is argued further that,
since the suit is not properly instituted and a party wrongfully
impleaded in the suit, the same should have been dismissed by the
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trial court, finding misjoinder. By referring ground No.D of the
appeal memorandum, the learned counsel for the defendants
submitted that even this aspect is known to the plaintiff from the
written statement filed by the defendants, no steps taken to delete
the 1st defendant from the party array and therefore, the same is
fatal to the case of the plaintiff. Accordingly, the learned counsel
for the defendants pressed for dismissal of the suit reversing the
trial court verdict.
8. The learned counsel for the plaintiff refuted the
contention raised by the learned counsel for the defendants and
submitted that the 1st defendant also arrayed in the party array
since as per the endorsement in Ext.A2 agreement on its reverse
side, the balance consideration paid on three occasions was
accepted by the 1st defendant. Therefore, the 1st defendant is a
necessary party or atleast a proper party. Therefore, the suit is not
bad for misjoinder. According to the learned counsel for the
plaintiff, even otherwise, no suit is liable to be dismissed finding
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misjoinder and in this regard, the learned counsel placed reliance
on Order I Rule 9 of the C.P.C. and the same reads as under:
9. Misjoinder and non-joinder.- No suit shall
be defeated by reason of the misjoinder or non-joinder of
parties, and the Court may in every suit deal with the
matter in controversy so far as regards the rights and
interests of the parties actually before it:
[Provided that nothing in this rule shall apply to non-
joinder of a necessary party.]
9. While addressing the rival contentions, the points arise
for consideration are:
1) Whether the trial court went wrong in granting decree
against the 2nd defendant even though no relief sought against the
1st defendant as contended by the learned counsel for the
defendants?
2) What is the legal effect of Order I Rule 9 of the C.P.C.?
3) Whether a civil court is empowered to dismiss a suit filed
against a necessary party merely for the reason of arraying an
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unnecessary party on finding misjoinder?
4) Reliefs and Costs.
10. First of all, I shall address the question as to whether a
civil court is empowered to dismiss a suit filed against a necessary
party by impleading an unnecessary party, on finding misjoinder.
In this connection, as pointed out by the learned counsel for the
plaintiff, Order I Rule 9 of the C.P.C. is relevant. It has been
specifically provided therein that no suit shall be defeated by
reason of the misjoinder or non-joinder of parties, and the Court
may in every suit deal with the matter in controversy so far as
regards the rights and interests of the parties actually before it.
The proviso would say that this rule has no application in case
when there is non-joinder of necessary party. Thus, the legal
position is not in dispute that no suit shall be defeated by reason of
misjoinder of a party/parties, even though a party or parties who
got arrayed as defendant/s along with a necessary party in a suit to
be found as an unnecessary party or parties and the court has to
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deal with the matter in controversy so far as regards the rights and
interests of the parties actually before it. Therefore, a civil court is
not empowered to dismiss a suit filed against a necessary party,
merely for inclusion of some parties who are not either necessary
or proper parties. In such cases also, once the plaintiff establishes
a case against the necessary party, suit is liable to be decreed against the
said necessary party and the suit cannot be dismissed in toto. But the
courts have the power to grant cost to a party or parties who are
wrongly joined as parties in a vexatious litigation, on finding so.
11. Even though it is argued by the learned counsel for the
defendants that the 1st defendant is not a necessary party and this point
has been highlighted in the written statement, no steps taken by the
plaintiff to delete the 1st defendant from the party array. The learned
counsel for the plaintiff would submit that even though the sale deed
sought to be executed on the strength of Ext.A1 and Ext.A2 sale
agreements at the instance of the 2 nd defendant, the part consideration
for the entire property was received by making
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endorsement at the instance of the 1 st defendant and therefore,
even though he is not a necessary party, he is a proper party.
Therefore, a party atleast would qualify the status of a proper party
could not be adjudged as a person wrongly joined in the litigation
to find misjoinder.
12. On perusal of the plaint averments and Ext.A1 and
Ext.A2 agreements, the contention raised by the learned counsel
for the plaintiff is sustainable. Therefore, joining the 1 st defendant
also as a proper party to the suit where he also received part of the
consideration for the entire property is not a ground to find misjoinder.
In the said circumstances, there is no misjoinder in this case.
13. Reading the plaint averments and prayers therein, the
learned counsel for the defendants would submit that the relief of
specific performance was sought against the defendants altogether even
though the 2nd defendant alone is competent to execute the sale deed.
On perusal of plaint averments and the reliefs, this
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submission appears to be convincing. In response to this
submission, the learned counsel for the plaintiff submitted that in
view of receipt of money by the 1 st defendant for and on behalf of
the 2nd defendant as endorsed in Ext.A2 agreement, the 1 st
defendant, who is the husband of the 2 nd defendant also arrayed as
a defendant. Even though the reliefs sought against the defendants
as a whole, according to the learned counsel for the plaintiff, the
court below rightly granted decree against the 2 nd defendant alone.
Therefore, merely on the ground of misjoinder, even otherwise, the
decree granted by the trial court is not to be interfered.
14. In this case, Ext.A1 is the first agreement executed in
between the plaintiff, defendants and Sri.Better Joy on 18.2.2007.
Again, the agreement was renewed on 18.4.2007 which is marked
as Ext.A2. Insofar as execution of Ext.A1 and Ext.A2 agreements
are concerned, the same is admitted by the defendants. In such a
case, the trial court exercised its discretionary power under Section
20 of the Specific Relief Act and finally granted decree directing
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the 2nd defendant to execute the sale deed with respect to plaint B
schedule property in favour of the plaintiff after receiving the
balance consideration of Rs.40,000/- (Rupees Forty Thousand
only) from the plaintiff. On perusal of Ext.A1 and Ext.A2
agreements supported by the evidence of PW1, it is evident that
there was bona fide execution of Ext.A1 and Ext.A2 initially
between the plaintiffs, defendant and Sri.Better Joy.
15. In the instant case, it is proved, rather admitted by
parties that Rs.3,60,000/-(Rupees Three Lakh Sixty Thousand
only) out of the sale consideration was received as agreed. What
remains is balance of Rs.40,000/-(Rupees Forty Thousand only).
16. It is the settled law that when the plaintiff has been
ready and willing to execute his part of the contract, which is
proved, the court has discretion to grant the specific relief of
performance itself. It is equally well settled that the discretionary
power shall not be exercised in an arbitrary manner and the same
shall be exercised in accordance with sound and reasonable judicial
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principles, capable of correction by the higher courts. It is not in
dispute that before the amendment of Section 20 of the Specific
Relief Act w.e.f. 01.08.2018, grant of specific relief by the court is
absolutely a discretionary relief and the court is not bound to grant
such relief merely because it is lawful to do so.
17. In the instant case, as per Ext.A1 and Ext.A2 sale
agreements, admittedly entered into between the parties, 10 cents
of property was transferred in the name of the plaintiff and the suit
has been filed to get specific performance of Ext.A1 and Ext.A2
insofar as the same relates to 12 cents of property scheduled as
plaint B item. In the instant case, out of the total sale
consideration, Rs.3,60,000/- (Rupees Three Lakh Sixty Thousand
only) was received as advance and the remaining is only
Rs.40,000/- (Rupees Forty Thousand only). In such a case, the
trial court vigilantly exercised the discretion and directed
performance of the agreement by the 2 nd defendant on receipt of
Rs.40,000/- (Rupees Forty Thousand only) as balance
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consideration. Such a decree does not require any interference and
therefore, the same is liable to be dismissed.
Holding so, this appeal fails and the same stands dismissed.
Needless to say, the plaintiff is entitled to get cost of this appeal to
be realised from the defendants. Accordingly, cost also allowed to
the plaintiff in this appeal to be realised from the defendants.
All interlocutory orders stand vacated and all interlocutory
applications pending in this appeal stand dismissed.
Registry is directed to inform this matter to the jurisdictional
court, forthwith.
Sd/-
A. BADHARUDEEN
JUDGE
Bb
