Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • FOR THE PETITIONER : Mr. Rajiv K. Garg with Mr. Ashish Garg, Advocate.
  • FOR THE RESPONDENT : Mr. Sunil Dalai, Adv. Defendant Mr. Ratnesh Bansal Adv. for applicants.
Judges
  • Justice Aruna Suresh
Acts
  • Order 1 Rule 10 sub-rule (2) Code of Civil Procedure (hereinafter referred to as CPC), applications deserve dismissal.6. Order 1 Rule 10 sub-rule (2) CPC
  • SECTION 19 SPECIFIC RELIEF ACT
  • Section 50 of Delhi Land Reforms Act.
  • Order 1 Rule 10 sub-rule (2) CPC
  • sub-rule (2) Order 1 Rule 10 CPC
  • Order 1 Rule 10 (2) CPC
  • 1 Rule 10 CPC
  • 1 Rule 10
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • FOR THE PETITIONER : Mr. Rajiv K. Garg with Mr. Ashish Garg, Advocate.
  • FOR THE RESPONDENT : Mr. Sunil Dalai, Adv. Defendant Mr. Ratnesh Bansal Adv. for applicants.
Judges
  • Justice Aruna Suresh
Acts
  • Order 1 Rule 10 sub-rule (2) Code of Civil Procedure (hereinafter referred to as CPC), applications deserve dismissal.6. Order 1 Rule 10 sub-rule (2) CPC
  • SECTION 19 SPECIFIC RELIEF ACT
  • Section 50 of Delhi Land Reforms Act.
  • Order 1 Rule 10 sub-rule (2) CPC
  • sub-rule (2) Order 1 Rule 10 CPC
  • Order 1 Rule 10 (2) CPC
  • 1 Rule 10 CPC
  • 1 Rule 10
See more information ...
Smart Summary

Judgment Summary — Aruna Suresh, J.

Factual and Procedural Background

Two interlocutory applications (IA No. 9718/2006 and IA No. 12698/2006) seeking impleadment as defendants were filed by Naresh Kumar (son of the defendant) and Smt. Raj Rani (wife of the deceased son of the defendant). The applications sought to add the applicants as defendants in CS (OS) No. 831/2006 concerning an extensive schedule of immovable property (identified by various khasra numbers and portions of house/plots — hereafter “suit property”) that had originally belonged to one Mam Chand.

After Mam Chand's death, his heirs (including the defendant) succeeded to the property. There was a history of litigation among those heirs, including a partition suit which was compromised; in that context the defendant had given an undertaking that the shares of Naresh and Jai Kishan would be fully protected after partition. The applicants claim to be co-sharers entitled to a share of the suit property, while the plaintiff in CS (OS) No. 831/2006 seeks specific performance of an agreement to sell dated 26.11.2005 executed by the defendant in favour of the plaintiff (claiming payment of Rs. 6,50,000 at the time of the agreement). The defendant asserted he was the bhumidar/absolute owner and in possession.

The instant applications for impleadment were contested by the plaintiff. By the present order the learned Judge disposed of both impleadment applications and directed listing of the main suit before the Regular Bench on 13 January 2010 with parties to appear on the fixed date.

Legal Issues Presented

  1. Whether, in a suit for specific performance of a contract for sale instituted by a purchaser against a vendor, a stranger or third party to the contract who claims an independent title and possession over the contracted property is entitled to be added as a party/defendant under Order 1 Rule 10(2) CPC.
  2. Whether the two applicants (claiming co-sharer/coparcener rights) are necessary and/or proper parties to the suit for specific performance, such that their impleadment is required for effective adjudication of the suit.

Arguments of the Parties

Applicants' Arguments

  • The applicants (through Mr. Ratnesh Bansal) contended that their interest in the immoveable property is jeopardised by the execution of the impugned agreement to sell by the defendant in favour of the plaintiff, to which the applicants assert the defendant had no right to execute; therefore they are necessary and proper parties to the suit.
  • Both applicants claim themselves to be co-sharers in their own right in respect of the suit property (i.e., they claim an independent share/interest).

Plaintiff's Arguments

  • The plaintiff (through Mr. Rajiv K. Garg) argued the central legal question is whether a stranger or third party to the contract who claims independent title and possession can be added in a suit for specific performance; the contention was that such persons are not necessary or proper parties and an effective decree can be passed without them.
  • The plaintiff contended the applicants are neither bhumidar nor in possession and thus have no right, title, interest or possession in the disputed land (invoking Section 50 of the Delhi Land Reforms Act as relevant to the plaintiff's challenge).
  • The plaintiff alleged collusion between applicants and the defendant to avoid execution of the sale deed in favour of the plaintiff, and also submitted that the defendant had not disclosed the compromise (in earlier partition litigation) to the plaintiff; as per that compromise the suit property fell to the share of the defendant and, after partition among defendant and his sons, certain portions fell to Naresh and Raj Rani — contending that despite these contentions, the applicants are not necessary or proper parties to the present suit.
  • Reliance was placed on Order 1 Rule 10(2) CPC to argue that the applications deserved dismissal.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Kasturi v. Iwamperumal, (2005) 6 SCC 733 Clarifies scope of Order 1 Rule 10(2) CPC in suits for specific performance; sets out that necessary parties are generally parties to the contract and articulates two tests for necessary parties (1. there must be a right to some relief against such party; 2. no effective decree can be passed in the absence of such party). It distinguishes between necessary and proper parties and warns against converting a specific performance suit into a title suit by adding strangers. The court relied on Kasturi to hold that persons who are strangers to the contract and who claim independent title are not necessary parties to a suit for specific performance and that adding them would enlarge the scope of the suit impermissibly.
Tasker v. Small, 1834 (40) ER 848 (Lord Chancellor Cottenham) Equity principle that to a bill for specific performance of a contract of sale, ordinarily only the parties to the contract (or their legal representatives) are proper parties; strangers to the contract are not proper parties since the contract creates the rights and liabilities enforceable in such a suit. The court quoted Tasker v. Small to support the proposition that strangers to the contract are not proper parties to suits for specific performance and to illustrate the historic equitable principle limiting parties to those bound by or claiming under the contract.
Vijay Pratan v. Sambhu Saran Sinha, (1996) 10 SCC 53 Affirms that deciding right, title and interest of a stranger to the contract is beyond the scope of a suit for specific performance and such a suit cannot be converted into a regular title suit by adding strangers. The court cited this authority to reinforce the position that a stranger claiming independent title cannot be made a party in a specific performance proceeding when such addition would require adjudication of title beyond the contract's enforceability.

Court's Reasoning and Analysis

The court proceeded in the following analytical steps (as reflected in the opinion):

  1. Statutory Framework: The court set out Order 1 Rule 10(2) CPC which permits the court at any stage to add or strike out parties when their presence is necessary to enable the court to "effectually and completely adjudicate upon and settle all the questions involved in the suit."
  2. Identification of the Proper Scope of a Specific Performance Suit: The court explained that the core issues in a suit for specific performance are the enforceability of the contract between the purchaser and vendor, whether the vendor was ready and willing to perform, and whether the purchaser is entitled to a decree for specific performance against the vendor. The court emphasized that these issues focus on the contract and the parties to it.
  3. Legal Interest and Necessity to Add a Party: The court observed that a person sought to be added must have a direct legal interest in the dispute such that the outcome will affect him legally. This requires that there be a right to relief against the proposed party and that no effective decree can be passed without that party (the two tests articulated in precedent).
  4. Applicants' Position: The applicants claim independent title (as coparceners/ co-sharers) and are strangers to the impugned agreement to sell. Allowing their addition would expand the suit from a contract-enforcement proceeding into contentious issues of title and possession.
  5. Consequences of Adding Strangers: The court reasoned that impleading the applicants would compel the court to try title and possession disputes which are outside the scope of the specific performance suit, would complicate and prolong the litigation, and could allow repetitive additions without final adjudication of the core contract dispute.
  6. Statutory Limitation under Specific Relief Act: The court noted Section 19 of the Specific Relief Act provides relief against parties and persons claiming under them by subsequent title; the applicants claim independent title and do not fall within the categories enumerated in Section 19(a)-(e); thus Section 19 is exhaustive for identifying those against whom specific performance may be enforced.
  7. Practical Effect of a Decree: The court observed that a decree for specific performance would not bind the applicants who claim independent title; such applicants would remain free to protect their interests by contesting execution or by initiating separate proceedings for declaration of title and possession.
  8. Reliance on Precedent: Relying on decisions such as Kasturi v. Iwamperumal and Vijay Pratan, and the equitable principle in Tasker v. Small, the court concluded that persons who are strangers to the contract and who assert independent title are neither necessary nor proper parties to a suit for specific performance.

Holding and Implications

Holding: The court DISMISSED both applications for impleadment (IA No. 9718/2006 and IA No. 12698/2006) for lack of merit.

Direct Implications for the Parties:

  • The applicants will not be added as defendants in CS (OS) No. 831/2006; the specific performance suit will proceed without their impleadment.
  • The court observed that a decree for specific performance in favour of the plaintiff would not affect the applicants' asserted independent rights; the applicants may defend their possession/title at the execution stage or by instituting independent proceedings for declaration of title and possession.
  • The matter (CS (OS) No. 831/2006) was directed to be listed before the Regular Bench for further directions on 13 January 2010 and parties were directed to appear on the fixed date.

Broader Implication: The judgment applies established principles limiting the parties in suits for specific performance to those whose rights and liabilities arise from the contract; the court did not purport to lay down a new principle of law beyond reliance on existing precedent and statutory provisions.

Show full summary ...

    Meer Singh v. Amar Singhamar Singh

    Aruna Suresh, J.

    IA No. 9718/2006 and 12698/2006 (Order 1 Rule 10 CPO in CS (OS) No. 831/2006

    1. Vide this order I shall dispose of two applications one filed by Naresh Kumar, son of the defendant and other filed by Smt. Raj Rani, wife of Shri Jai Kishan, deceased son of the defendant seeking impleadment as defendants in this case.

    2. The facts giving rise to filing of these two applications are that the property in suit i.e Khasra No. 8/1, 8/2, 311, 309, 321, 322,. 323, portion of House No. VI, measuring 42 sq.yds in length and 11 yards in width on the ground floor, two kothas and two bhukharies, half portion of property No. 168 (measuring 3 biswas), Khasra No. 7/1, 7/2, 247/2, 248/275 and two kothies of Poli a House No. 6 and other portion of Plot No. 166 measuring 3 biswas towards West, Khasra No. 276, 277 and a Kotha on first floor towards West side and Khasra No. 278 and one Kotha on first floor of House No. VI towards East side, etc. (hereinafter referred to as “suit property”) was owned by Mam Chand, father of the defendant. After his death, the properties of Mam Chand were succeeded by his legal heirs, including the defendant. There has been a chain of litigation between the parties. A suit for partition was filed in between legal heirs of deceased Mam Chand. The said suit was compromised. In the suit, the defendant had given an undertaking that the shares of Naresh and Jai Kishan would be fully protected after the partition was effected. Both the applicants claim themselves to be co-sharers in their own right, in the suit premises which Amar Singh agreed to sell to the plaintiff. Number of cases are pending adjudication between the children of the defendant inter se as well as inter se the defendants. Since both the applicants claim their share in the suit property in their own right, these applications have been filed for their impleadment in the array of the defendants.

    3. Both the applications have been contested by the plaintiff contending inter alia that applicants are neither the Bhumidar nor in possession of the land in dispute. Hence, they are neither necessary nor proper party to the present suit, that the applications have been filed by the applicants in collusion with the defendant, to avoid execution of the Sale Deed in favour of the plaintiff. Applicants, not being the Bhumidar of the land of the defendant, have no right, title, interest or possession in the land in dispute in view of Section 50 of Delhi Land Reforms Act. That the factum of said compromise was never disclosed by the defendant to the plaintiff and it was between the applicants and defendant and other family members, further he is not a party to any of the litigation between the applicants, the defendant and other family members, that as per the compromise in Civil Writ Petition No. 279/89, suit property fell to the share of the defendant. After the said compromise, share of the defendant was mutually partitioned between the defendant and his sons and certain portion of the suit property had fallen to the share of Naresh Kumar and Smt. Raj Rani. Therefore, the applicants are neither necessary nor proper party to the present suit for its effective adjudication. Hence, the applications deserve dismissal.

    4. It is submitted by Mr. Ratnesh Bansal, learned counsel for the applicants that since the interest of the applicants in the immoveable property are jeopardized because of the execution of the impugned agreement to sell by the defendant in favour of the plaintiff, to which he had no right, therefore, they are necessary and proper party to the present suit.

    5. Mr. Rajiv K. Garg, learned counsel for the plaintiff has argued that the question that needs to be decided in these applications is whether in a suit for specific performance of a contract for sale of a property, instituted by a purchaser against the vendor, a stranger or a third party to the contract claiming to have an independent title and possession over the contracted property, is entitled to be added as a party/defendant in the said suit and since the applicants are claiming independent title in the suit property, they are neither necessary nor proper party to the present suit, and an effective decree can be passed in their absence as relief claimed by the plaintiff in the suit cannot be claimed against the applicants. He has submitted that under the circumstances, in view of Order 1 Rule 10 sub-rule (2) Code of Civil Procedure (hereinafter referred to as “CPC”), applications deserve dismissal.

    6. Order 1 Rule 10 sub-rule (2) CPC reads as follows:—

    “(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 terms as may appear 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 ought 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. Thus, by virtue of the abovesaid provision of law, the court at any stage of the proceedings can order either upon or without the application of either party and on such terms as may appear to the court to be just to add the name of a person whether as plaintiff or defendant, if the court is of the view that the presence of such persons before the court is necessary in order to enable it to effectively and completely adjudicate upon and settle all the questions involved in the suit.

    8. Plaintiff has filed a suit for specific performance of agreement to sell dated 26.11.2005 executed by the defendant in his favour for a total consideration of Rs. 28,75,616/-. Plaintiff claims that he has paid a sum of Rs. 6,50,000/- at the time of execution of the agreement to sell by way of a receipt. The defendant had agreed to sell the suit property to the plaintiff claiming himself to be the Bhumidar/absolute owner, occupier and in peaceful physical possession of the same.

    9. The applicants have claimed their rights in the suit property as coparceners. They are stranger to the impugned agreement to sell. The question of jurisdiction of the court to invoke order 1 Rule 10 CPC to add person who has not been made a party in the suit by the plaintiff, not arise unless the party proposes to be added, has direct legal interest in the dispute involved in the suit. A person can be legally interested in the answers to the controversies only if he can satisfy the court that it may lead to a result that will affect him legally. In a suit for specific performance, the court has to see that plaintiff has a right to claim the relief as claimed in the suit as against the applicants relating to the same subject matter i.e the agreement to sell. The issue which is involved in a suit for specific performance, which needs to be adjudicated upon by the court is the enforceability of the contract entered into between the purchase and the vendor for sale of the contracted property and whether the vendor was ready and willing to perform its part of contract and whether the purchaser under the circumstances of the case is entitled to a decree of specific performance for a contract of sale against the vendor.

    10. The applicants admittedly have based their claim on independent title of the contracted property. Therefore, if the applicants are allowed or are added or impleaded in the suit as defendants, the scope of the said 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. Such addition of their names would lead to a complicated litigation and the court would have to go into the trial and decision of serious questions, which would be totally outside the purview of the suit add would also unnecessary prolong the adjudication of the case, as addition of such like persons in the array of defendants could continue without a final decision of the suit.

    11. The applicants, under the circumstances, being the stranger to the contract, cannot be allowed to be added so as to change the nature of suit from specific performance to a suit of different character, may be suit for title and possession. What is important for the court to look into the present suit is lis between the parties and the court is not empowered to decide if the applicants have acquired any title in the contracted property because, that is not the germane for just decision of this case i.e for specific performance of the contract for sale.

    12. A decree for specific performance of the contract for sale as passed would not affect the right, title or interest of the applicants in respect of the contracted property. Therefore, the applicants are neither necessary nor proper party to be added in the present suit. Besides, plaintiff cannot be forced to add party against whom he does not want to fight, unless it is a compulsion of the rule of law.

    13. In ‘Kasturi v. Iwamperumal (2005) 6 SCC 733’, in similar circumstances, wherein a suit for specific performance of a contract was filed by the applicant Kasturi against respondents No. 2 and 3 for enforcement of agreement for sale, respondents No. 1, 4 to 11 filed applications claiming independent title and possession over the contracted property, to get themselves added in the suit as defendants, the Apex Court while allowing the appeal dismissed the applications for impleadment as defendants under order 1 Rule 10 CPC, Supreme Court considered the scope of Order 1 Rule 10 (2) CPC in extensor and observed:—

    “7. In our view, a bare reading of this provision, namely, second part of Order 1 Rule 10 sub-rule (2) CPC would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead, their legal representatives as also a person who had purchased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. 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.

    11. As noted herein earlier, two tests are required to be satisfied to determine the question who is a necessary party, let us now consider who is a proper party in a suit for specific performance of a contract for sale. For deciding the question who is a proper party in a suit for specific performance the guiding principle is that the presence of such a party is necessary to adjudicate the controversies involved in the suit for specific performance of the contract for sale. Thus, the question is to be decided keeping in mind the scope of the suit. The question that is to be decided in a suit for specific performance of the contract for sale is to the enforceability of the contract entered into between the parties to the contract. If the person seeking addition is added in such a suit, the scope of the suit for specific performance would be enlarged and it would be practically converted into a suit for title. Therefore, for effective adjudication of the controversies involved in the suit, presence of such parties cannot be said to be necessary at all. Lord Chancellor Cottenham in Tasker v. Small 1834 (40) ER 848 made the following observations: (ER pp. 850-51)

    “ It is not disputed that, generally, to a bill for a specific performance of a contract of sale, the parties to the contract only are the proper parties; and, when the ground of the jurisdiction of Courts of Equity in suits of that kind is considered it could not properly be otherwise. The Court assumes jurisdiction in such cases, because a Court of law, giving damages only for the non- performance of the contract, in many cases does not afford an adequate remedy. But, in equity, as well as at law, the contract constitutes the right, and regulates the liabilities of the parties; and the object of both proceedings is to place the party complaining as nearly as possible in the same situation as the defendant had agreed that he should be placed in. It is obvious that persons, strangers to the contract, and, therefore, neither entitled to the right, nor subject to the liabilities which arise out of it, are as much strangers to a proceeding to enforce the execution of it as they are to a proceeding to recover damages for the breach of it.”

    [Emphasis supplied]

    13. From the aforesaid discussion, it is pellucid that necessary parties are those persons in whose absence no decree can be passed by the court or that there must be a right to some relief against some party in respect of the controversy involved in the proceedings and proper parties are those whose presence before the court would be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person.

    15 In the case of Vijay Pratan 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………

    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……

    18. 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 litis 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 ………”

    14. Section 19 of the Specific Relief Act (hereinafter referred to as ‘Act’) provides relief against parties and persons claiming under them by subsequent title. The applicants who seek addition as defendants in the suit for specific performance of the R-2J contract for sale are claiming independent title in the suit property and are not claiming any right under the defendant and therefore they do not fall in the category as enumerated in sub Section (a) to (e) of Section 19 of the Act. In other words, Section 19 of the Act is exhaustive on the point as to who are the parties against whom a contract for specific performance may be enforced.

    15. The applicants not being a party to the agreement to sell cannot be a party to a suit for specific performance of the contract for sale. A decree if passed in this suit would not be binding on them and the applicants would be at liberty, either to obstruct the execution in order to protect their title and possession by taking recourse to the relevant provision of CPC, if they are available to them, or, file an independent suit for declaration and title of possession against the parties to the suit. If a decree for specific performance of the contract is passed in favour of the plaintiff and the Sale Deed is executed, he will have to sue the applicants for taking possession if they are in possession of the decretal property.

    16. It is relevant to state here that the defendant, the applicants and defendants, other family members are litigating with each other in respect of the properties which fell to the share of defendant after partition of the property of Mam Chand in a suit for partition where the defendant and his brothers compromised their disputes.

    17. Hence, I find no merits in the applications and the same are accordingly dismissed.

    CS (OS) No. 831/2006

    Case be listed before the Regular Bench for further directions on 13th January, 2010.

    Parties are directed to appear before the concerned court on the date fixed.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Meer Singh v. Amar Singhamar Singh
    (Jan 7, 2010)