Robin Ramjibhai Patel (S) v. Anandibai Rama Rajaram Pawar And Ors. (S)

1. Heard the parties.

2. Leave granted.

3. The appellant is the plaintiff who instituted special suit No. 57 of 2012 before the learned Civil Judge, Senior Division, Raigad at Panvel for the specific performance of an agreement for sale of certain land bearing plot No. 44. As per agreement dated 9.3.2011, respondent no. 1 is the vendor. From the facts available on record, it appears that respondent no. 1 sold the property allegedly in violation of the agreement, in favour of respondent Nos. 6, 7 & 8 on 3.10.2011 The plaintiff-appellant filed the aforesaid suit on 2 February, 2012 and obtained an order of a status quo on 29 February, 2012. Thereafter as per the plaintiff's case respondent Nos. 6 to 8 created interest of third parties in the same property through registered agreements in the month of April, 2012. The appellant as plaintiff made an application to the trial court to implead the proposed purchasers having registered agreement of sale in their favour as defendant. This application was rejected by the trial court and that order was challenged before the High Court but without success as appears from the Order under appeal dated 19.08.2014 passed by the High Court of judicature at Bombay in Writ Petition No. 2359 of 2014.

4. Learned counsel for the appellant submits that when there was an order of status quo by the trial court, the respondent nos. 6 to 8 clearly acted contrary to such order by entering into subsequent agreement for sale of the suit property in favour of ten persons and in such circumstances prayer to implead such ten persons should have been allowed when the prayer was made by the appellant-plaintiff who is dominus litus. He placed reliance upon a judgment by three Judge Bench of this Court in the case of Kasturi v. Iyyamperumal (2005) 6 SCC 733.

5. In reply learned counsel for the respondent nos. 6 to 8 submitted that as per allegations made by the appellant these respondents have only entered into registered agreemment of sale and therefore no rights have yet been created in favour of the alleged subsequent purchasers in the ten flats on the suit property. Learned counsel has relied heavily upon a judgment by a Division Bench of this Court in the case of Ramesh Chandra Pattnaik v. Pushpendra Kumari (2008) 10 SCC 708 to submit that the persons sought to be impleaded are not at all necessary parties.

6. First we shall consider the judgment in Ramesh Chandra Pattnaik's case (supra). In that case, the appellant-plaintiff who had filed the suit for specific performance of an agreement of sale and had also sought permanent injunction to restrain the proposed vendors from interfering with the possession, had resisted the claim of a subsequent purchaser seeking impleadment under Order I Rule 10 of the Code of Civil Procedure, 1908 (in short ‘the CPC’). Inspite of such opposition, the prayer for impleadment was allowed and the High Court did not interfere. Then the plaintiff moved this Court and the appeal by leave was allowed by setting aside the orders and dismissing the application for impleadment. In such factual scenario, the court clearly accepted the privilege of the plaintiff as to what shall be the scope of the suit and who should be allowed to intervene as defendant. With respect to claim of the subsequent agreement of sale to respondent no. 10, the Court observed in paragraph 6 of Ramesh Chandra Pattnaik's case (supra) as under:

“Respondent 10 is alleged to have entered into an agreement with Respondent 1 on 15.11.1984 for sale of the property, which is the subject matter of the suit filed by the petitioner. In respect of such an agreement, Respondent 10, could have filed a suit for specific performance but as stated by the learned counsel appearing for the parties, no such suit has been filed. In our opinion Respondent 10 was not at all a necessary party for determination of the genuineness or otherwise of the agreement of sale which is said to have been entered into between the petitioner and respondent 1.”

7. In our considered view the respondent no. 10 in that case could not have a better claim than his proposed vendors who were already defendants and hence when opposed by the Plaintiff, the prayer for impleadment at the instance of such subsequent purchaser was rightly rejected by this court by observing that such a subsequent agreement holder could have filed a suit for a specific performance if he had any such rights.

8. Coming to the judgment in Kasturi's case (supra), it is notable that the suit for specific performance of contract for sale was filed by the appellant against respondent nos. 2 & 3. In the said suit respondent Nos. 1 & 4 to 11, who were not parties to the contract and had set up a claim of independent title and possession over the contracted property, filed an application to get themselves added in the suit as defendants. The trial court allowed the application on the ground that such respondents had direct interest in the subject matter of the suit and hence their presence would be necessary to decide the controversies raised in the suit. The High Court confirmed the said order and then the plaintiff came to this Court as appellant and their prayer was allowed by this Court. This Court took a clear view in paragraph 21 in the following terms:

“It may be reiterated here that if the appellant who has filed the instant suit for specific performance of contract for sale even after receiving the notice of claim of title and possession by Respondents 1 and 4 to 11 does not want to join Respondents 1 and 4 to 11 in the pending suit, it is always done at the risk of the appellant because he cannot be forced to join Respondents 1 and 4 to 11 as party-defendants in such suit. In the case of Ramesh Hirachand Kundanmal v. Municipal Corpn. of Greater Bombay on the question of jurisdiction this Court has clearly laid down that it is always open to the court to interfere with an order allowing an application for addition of parties when it is found that the courts below had gone wrong in concluding that the persons sought to be added in the suit were necessary or proper parties to be added as defendants in the suit instituted by the plaintiff-appellant. In that case also this Court interfered with the orders of the courts below and rejected the application for addition of parties. Such being the position, it can no longer be said that this Court cannot set aside the impugned orders of the courts below on the ground that jurisdiction to invoke power under Order I Rule 10 CPC has already been exercised by the two courts below in favour of Respondents 1 and 4 to 11.”

9. As it appears from the aforesaid paragraph this Court accepted the status of dominus litus of the plaintiff and proceeded to hold that if the plaintiff did not want to join the rival claimants as defendant in the pending suit, the risk was totally of the plaintiff and he cannot be forced to join them as party defendant.

10. In the aforesaid context, this Court also considered the provisions of Order I Rule 10 CPC and in paragraph 7 it expressed its view that the relevant provisions show that the necessary parties in a suit for specific performance of a contract for sale are not only parties to the contract or their legal representatives but also a person who had purchased the contracted property from the vendor. It was further elaborated that “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.”

11. In our considered opinion, the judgment of the three Judge Bench in the Kasturi's case (supra) recognises this special status of a plaintiff which is well settled by several earlier judgments also and when the plaintiff wants to implead certain persons as defendants on the ground that they may be adversely affected by the outcome of the suit, then interest of justice also requires allowing such a prayer for impleadment so that the persons likely to be affected are aware of the proceedings and may take appropriate defence as suited to their vendors.

12. In view of the aforesaid discussion, we have no hesitation in setting aside the orders of trial court as well as the High Court refusing the impleadment. As prayed by the appellant the applications for impleadment and for amendment are allowed. Resultantly the appeal is also allowed. In the facts and circumstances of the case, there shall be no order as to costs.

SUPREME COURT OF INDIA

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s). 31087/2014

(Arising out of impugned final judgment and order dated 19/08/2014 in WP No. 2359/2014 passed by the High Court Of Bombay)

Robin Ramjibhai Patel.….Petitioner(s)

v.

Anandibai Rama @ Rajaram Pawar and Ors.….Respondent(s)

(with prayer for interim relief and office report)

Date : 10/11/2016 This petition was called on for hearing today.

(Before Shiva Kirti Singh and R. Banumathi, JJ.)

For Petitioner(s) Mr. Sachin Patil, Adv.

For Respondent(s) Mr. A.S Bhasme, Adv.

Mr. Shivaji M. Jadhav, Adv.

Ms. Astha Deep, Adv.

Mr. Brij Kishor Sah, Adv.

Ms. Nipur Katyal, Adv.

M/s. S.m Jadhav & Company, Adv.

UPON hearing the counsel the Court made the following

13. Leave granted.

14. Application for impleadment and for amendment are allowed. Resultantly the appeal is allowed in terms of the signed order. In the facts and circumstances of the case, there shall be no order as to costs.