Madhya Pradesh High Court
Rajesh Batra vs Girraj Prashad Agrawal on 17 April, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 17th OF APRIL, 2025
MISC. PETITION No. 3883 of 2023
RAJESH BATRA
Versus
GIRRAJ PRASHAD AGRAWAL AND OTHERS
Appearance:
Shri Rajeev Shrivastava - Advocate for the petitioner.
None for the respondnets.
ORDER
The instant petition is directed against the order dated 08.05.2023
passed by the VIII Civil Judge, Senior Division, Gwalior in Civil Suit
No.174-A of 2020, by which an application filed by Mamta Agarwal under
Order 1 Rule 10 of CPC for impleading her as defendant has been allowed.
2. Short facts of the case are that the petitioner/plaintiff had filed a suit
for specific performance of contract, possession and permanent injunction in
respect of part of ground floor of the building situated at Rahgiri Gali,
Chawdi Bazar, Lashkar, Gwalior and the map thereof has been enclosed with
the plaint. In the suit, it has been averred that the plaintiff and defendant
have entered into an agreement to sell dated 26.03.2019. During the
pendency of the suit, an application under Order 1 Rule 10 of CPC has been
filed by Mamta Agarwal for impleading her as party defendant to the effect
that the property in question belonged to her mother Premlata Devi, W/o
Jagdish Prasad Agarwal and she was owner of the said property. After the
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death of her mother on 11.12.2009, present respondent/defendant Girraj
Narayan Agarwal and proposed defendant became the owner and possession
holder of the said property in equal share, therefore, present
respondent/defendant had no right to execute agreement to sell dated
26.03.2019 in favour of the petitioner/plaintiff without partition. In the
application, it was further averred that present plaintiff is in possession of the
disputed property since life time of deceased Premlata and just to damage the
interest of the proposed defendant, the plaintiff and defendant had executed
the said agreement to sell without any right. Since she being the daughter of
deceased Premlata, who died without executing any Will and was having 1/3
share in the disputed property, therefore, she is interested and necessary
party in the suit and without impleading her in the suit, judicial consideration
in the suit is not possible. Hence, prayer was made to allow the application
and implead her as defendant No.2 in the suit. The aforesaid application has
vehemently been opposed by the petitioner/plaintiff. Learned Trial Cour
after hearing the parties allowed the application vide order dated 08.05.2023.
Aggrieved by the aforesaid order, the present petition has been filed.
3. Learned Counsel for the petitioner has submitted before this Court
that even if proposed defendant has any share in the property in question, the
claim of the plaintiff is only confined to the part of the property, which falls
within the share of the vendors, thus, the trial Court ought not to have
entertained the application filed by proposed respondent under Order 1 Rule
10 of the CPC.
4. It was further submitted that it is well settled principle of law that
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basically, it is for the plaintiff in a suit, to identify the parties against whom
he has any grievance and to implead them as defendants in the suit filed for
necessary relief and he cannot be compelled to face litigation with the
persons against whom he has no grievance. Even otherwise, as per the
agreement to sell dated 26.03.2019, since defendant Girraj Agarwal showed
himself to be sole owner of the disputed property and had executed the said
agreement, therefore, the plaintiff had only made a Girraj as a defendant. To
substantiate his submission, learned counsel for the petitioner has placed
reliance on the decision of the Apex Court in the matter of Gurmit Singh
Bhatia vs. Kiran Kant Robinson & Others reported in (2020) 13 SCC 773 .
5. None for the respondent even in the second round though served.
6. Heard the Counsel for the petitioner and perused the record.
7. In the present case, perusal of plaint reflects that the suit in question
which has been filed by petitioner/plaintiff with regard to specific
performance of the contract arising out of the agreement dated 26.03.2019
and a perusal of the aforesaid agreement reflects that the agreement has been
executed by the defendant to the extent of share of the vendor.
8. The Apex Court in the matter of Kasturi vs. Iyyamperumal reported
in (2005) 6 SCC 733 has 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
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adjudicate upon and settle all the questions involved in the
suit. As noted herein earlier, 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
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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
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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
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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)
9. The said judgment in the matter of Kasturi vs. Iyyamperumal ( supra)
was again taken note of in the matter of Gurmit Singh Bhatia vs. Kiran Kant
Robinson (supra) in para 5.2 which is extracted hereunder :
"5.2. An identical question came to be considered
before this Court in Kasturi [Kasturi v. Iyyamperumal,
(2005) 6 SCC 733] 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
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Court that two tests are to be satisfied for determining the
question as to 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 that 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
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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."
10. In view of the law laid down by the Apex Court in the cases of
Kasturi vs. Iyyamperumal ( supra) and Gurmit Singh Bhatia vs. Kiran Kant
Robinson (supra), this Court finds it luminescent that impleadment of party
in a suit for specific performance of contract is not permitted, inasmuch as
scope of the suit for specific performance cannot be enlarged to a suit for
title and possession, therefore, the impugned order is unsustainable and
accordingly, it is hereby set aside. Ex-consequenti, the present petition is
allowed.
(MILIND RAMESH PHADKE)
JUDGE
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