Harcharan Kushwaha vs Shyam Sunder
2024 Latest Caselaw 4501 MP

Madhya Pradesh High Court

Harcharan Kushwaha vs Shyam Sunder on 16 February, 2024

       IN THE HIGH COURT OF MADHYA PRADESH

                             AT J A B A L P U R

                                      BEFORE
                                  FA No.67 of 2009
     (HARCHARAN KUSHWAHA Vs SHYAM SUNDER AND OTHERS)


Dated : 08-02-2024
       Shri Anoop Saxena - Advocate for the appellant.
       Shri Shailendra Verma - Advocate for intervener.
       Shri Anoop Sonkar - Advocate for the respondent No.1.
       Shri Sumit Shukla - Advocate for respondent No.2 and 3.


       Reserved on:                         08.02.2024

       Pronounced on:                       16.02.2024

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IA No.2952/2019 under Order 1 Rule 3 of CPC is filed by Bharat Uday Samajik Evam Sanskratik Sanstha through President Shri Rahul Tripathi for joining himself in the array of respondents as respondent No.5 in first appeal No.67/2009 arising out of judgment and decree dated 15.12.2008 in Civil Suit No.07-A/2006 of 4rth Additional District Judge, Chhatarpur whereby the suit instituted by respondent No.1 Shyam Sunder has been decreed.

Facts in brief are that respondent No.2 Pyarelal Kushwaha entered into an agreement dated 02.04.2004 (Annexure-A-3) to sell the suit property bearing Khasra No.2972/1, 2975, 2973/2, 2977/2, 2979/2, 2976/2, 2980/2, 2988 and 2989 measuring total area 0.704 hectare situated at Chhatarpur asserting the property as absolute self acquired property of himself with respondent No.1 Shyam Sundar. Pyarelal also sold the suit property to appellant Harcharan Kushwaha vide registered sale deed dated 20.07.2004 (Annexure-A-4).

Respondent No.1 Shyam Sunder instituted a Civil Suit for decree of Specific Performance of Contract i.e. agreement to sale dated 02.04.2004 (Annexure-A-3) and nullity of registered sale deed dated 20.07.2004 (Annexure-A-4). The suit was decreed in favour of respondent No.1 Shyam Sunder vide judgment dated 15.12.2008 in Civil Suit No.7-A/2006 by 4rth Additional District Judge, Chhatarpur, MP.

Appellant Harcharan Kushwaha/defendant No.3 filed this appeal challenging the judgment and decree of trial Court on 22.01.2009. On 01.03.2019, Bharat Uday Samajik Evam Sanskratik Sanstha (intervenor) filed this application under Order 1 Rule 3 of the CPC submitting that respondent No.2 Pyarelal/defendant No.1 has executed a Vyavstha Patra (settlement deed) on 29.01.2001 infavour of his wife Smt. Lalla Bai regarding the 0.704 hectare land of Khasra No.2972/1, 2975, 2973/2, 2977/2, 2979/2, 2976/2, 2980/2, 2988 and 2989 and by virtue of Vyavstha Patra Smt. Lalla Bai executed a sale deed in favour of intervenor on 29.11.2014. When existence of appeal came into knowledge of intervenor then he filed this application.

Appellants have opposed the application.

Heard.

Perused the record.

Scope of applicability of Order 1 Rule 3 of CPC in matter based on Specific Performance of Contract is discussed in Anil Kumar Singh vs. Shivnath Mishra and Gadasa Guru, 1995 SCC (3) 147 and it is specifically held that order 1 Rule 3 is not applicable to the suit for specific performance. Relevant para Nos.4 to 10 of the judgment is being reproduced as below :-

4. Equally, order 1 Rule 3 is not applicable to the suit for specific performance' because admittedly, the respondent was not a party to the contract. Rule 3 of Order 1 provides that:

"3. Who may be joined as defendants..... All persons may be joined in one suit as defendants where....

(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exists against such persons, whether jointly, severely or in the alternative; and

(b) if separate suits were brought against such persons, any common question of law or fact would arise".

5. In this case, since the suit is based on agreement of sale said to have been executed by

Misra. the sole defendant in the suit, the subsequent interest said to have been acquired by-the respondent by virtue of a decree of the Court is not a matter arising out of or in respect of the same act or transaction or series of acts or transactions in relation to the claim made in the suit,

6. Order 1, Rule 10(2) postulates that:

"10(2) Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such term as May appeared to the Court to be just, order that the name of any party improperly joined whether as plaintiff or defendant, be struck out, and that the name of any person who or to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit be added".

7. By operation of the above-quoted rule though the Court may have power to strike out the name of a party improperly joined or add a party either on application or without application of either party, but the condition precedent, is that the Court must be satisfied that the presence of the party to be

added, would be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit. To bring a person as party defendant is not a substantive right but one of procedure and the Court has discretion in its proper exercise. The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid multiplicity of proceedings.

8. The question is whether the person who has got his interest in the property declared by an independent decree but not a party to the agreement of sale, is a necessary and proper party for effectually and completely adjudicate upon and settle all the question involved in the suit. The question before the Court in suit for the specific performance is whether the vendor had executed the document and whether the conditions prescribed in the provisions of the Specific Relief Act have been complied with for granting the relief of specific performance.

9. Sub-rule (2) of Rule 10 of Order 1 says that "necessary parties are persons who ought to

have been joined as a party to the suit, a necessity to the constitution of the proper suit without whom no relief or order can be passed". In order that a person may be considered a necessary party, defendant to the suit, the conditions precedent must be (1) that there must be a right to some relief against him in respect of the dispute involved in the suit; and (2) that his presence should be necessary to enable the court to effectually and completely to adjudicate upon and settle all the questions involved in the suit. Since the respondent is not a party to the agreement of sale, it cannot be said that without her presence the dispute as to specific performance cannot be determined. Therefore, she is not a necessary party.

10. A person may be added as a party defendant to the suit though no relief may be claimed against him/her provided his/her presence is necessary for a complete and final decision on the question involved in the suit. Such a person is only a proper party as distinguished from a necessary party. In Razia Begum v. Sahebzadi Anwar Begum & Ors., 1959 SCR 111, in a suit instituted for a declaration of legal status as a married wife, the question arose whether another person claiming to be the third wife and sons through her are necessary and proper party, who sought to come on record under Order 1 Rule

10(2). This Court held that in a suit for declaration, as regards status or legal character under s.42 of the Specific Relief Act, the rule that in order that a person may be added as a party must have a present or direct interest in the subject matter of the suit, is not wholly applicable, and the rule may be relaxed in a suitable case where the court is of the opinion that by adding that party it would be in a better position to effectually and completely to adjudicate upon the controversy. In such suits the court is not bound to grant the declaration prayed for, on a mere admission of the claim by the defendant, if the court has reasons to insist upon clear proof, apart from the admission. It was therefore, held that a declaratory judgment since binds not only the parties actually before the court but also the persons claiming through them respectively within the meaning of s.43 of the Specific Relief Act, they are proper parties. The petitioner is not claiming this legal status nor through the respondent. In Lala Durga Prasad and Anr. v. Lala Deep Chand & Ors., 1954 SCR 360, in a suit for specific performance the subsequent purchaser was held to be a necessary party. In this case the petitioner is merely seeking the specific performance of the agreement of sale. Section 15 of the Specific Relief Act, 1963, provides

that except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by "any party thereto"; and under s. 16 the Court has been given discretion and personal bars to relief. Therefore, based on the fact situation, the court would mould the relief The respondent is neither a necessary nor a proper party to adjudicate upon the dispute arising in the suit so as to render an effective and complete adjudication of the dispute involved in this suit.

Now we come to the facts of this case. Applicant/intervenor is not a party to the agreement (Annexure A-3). He is not concerned with the sale deed dated 20.07.2004 (Annexure A-4). He is not represente in interest or the principle of any party to the agreement (Annexure A-3) or sale-deed (Annexure A-4). He is not claiming title under any of the party to the agreement (Annexure A-3) or sale-deed (Annexure A-4).

Matter of applicant does not come under the category of any right to relief arising out of or in respect of, the same act or transaction or series of acts or transactions in relation to the claim made in the suit i.e. specific performance of contract (Annexure A-3) and nullity of registered sale-deed (Annexure A-4) made in the suit. So, the application does not come within the purview of Order 1 Rule 3 of CPC.

Considering the application whether he may be added as a necessary and proper party applicant does not fulfill the dual condition that there must be a right to some relief against him in respect of the dispute involved in the suit

and his presence should be necessary to enable the court to effectually and completely adjudicate upon all the questions involved in the appeal. So, IA No.2952/2019 is rejected.

IA No.9794/2018 regarding the same relief is also disposed of as dismissed.

Application on behalf of Lallabai Kushwaha under Order 1 Rule 10 as IA No.3422/2019 is pending.

Matter be listed after three weeks on IA No.3422/2019.

(GAJENDRA SINGH) JUDGE

DPS

DHEERAJ PRATAP SINGH 2024.02.17 12:08:11 +05'30'