RAVI KHUNTETA   v. SANJAY RANA

defendant has got the share of agricultural land which is subject matter of the present suit property. The plaintiff agreed to purchase the said property for a total consideration of Rs.85 lacs. Earnest deposit of Rs.20 lac was paid.

3. The applicant is the father of the defendant. He has filed the application under Order I Rule 10 CPC for being impleaded as a party claiming that the suit property is a part of ancestral undivided agricultural land. Defendant is described as an errant son who is only creating trouble for the family. It is urged that the defendant cannot claim entitlement of 1/5^th share in the undivided agricultural land in question. Some share would come to the share of the appellant on occurrence of actual physical partition of the entire undivided agricultural land of the family measuring 17 Bighas and 3 Biswas. It is stated that the respondent would actually be entitled to 1/6^thshare and not 1/5^thshare as claimed in the plaint. The 1/6^thshare would come to 9 Biswas only. This share would also come to the defendant only after physical partition of the joint agricultural land takes place amongst the co-owners.

4. A perusal of the Agreement to Sell dated 14.10.2011 & other documents show that there appears to be a dispute to the extent of share of the defendant vis-a-vis the appellant/his father. As per the appellant, on a reading of the compromise decree, share of the defendant fructifies only on defendant No.1 receiving his share exclusively in the event of partition of the joint ancestral property. Further, it is averred that on such an eventuality the defendant would receive only 1/6^thshare amounting to about 9 Biswas only whereas the agreement to sell states its 1/5^thshare and approximately

1.5 bighas.

5. Learned counsel appearing for the appellant submits that he has a vital

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interest in the subject matter of the present suit. Hence, he would be a necessary and proper party. He relies on Sumtibai and Ors. vs. Paras Finance Co. Regd. Partnership Firm Beawer (Raj.) and Ors.2007 10 SCC

82.

6. Learned counsel appearing for the plaintiff has opposed the appeal stating that the present application is a mala fide application filed by the father of the defendant to create confusion and obstruct the present proceedings. It is averred that a third party to the Agreement to Sell cannot be a necessary party to the suit. Reliance is placed on Kasturi vs. Iyyamperumal and Ors.2005 6 SCC 733, a three Judge Bench Judgment and in Vidur Impex and Traders Pvt. Ltd. and Ors. vs. Tosh Apartments Pvt. Ltd. and Ors. 2012 8 SCC 384.

7. Order I Rule 10(2) CPC reads as follows:-

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 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.

8. In Mumbai International Airport Pvt. Ltd. vs. Regency Convention Centre & Hotels Pvt. Ltd.; 2007 SCC 417 the Supreme Court held as follows:-

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"15. A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. A "proper party" is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.

.............

22.Let us consider the scope and ambit of Order 1 Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act accordingly to reason and fair play and not according to whims and caprice."

9. In Ramesh Hiranand Kundanmal vs. Municipal Corporation of Bombay; (1992)2SCC524 the Supreme Court held as follows:-

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"The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights."

10. I will first deal with the judgments relied upon by the plaintiff/respondent. In the case of Kasturi vs. Iyyamperumal and Ors. (supra) a three Judge Bench of the Supreme Court clearly states that an objector would not be a necessary and proper party in a suit for specific performance. That was a case in which the appellant had filed a suit against respondents No.2 and 3 for specific performance of the contract. Respondents No.1 and 4 to 11 were not parties to the contract and setting up a claim of title and possession over the contracted property filed an application to get them added in the suit as defendants.

11. In Kasturi vs. Iyyamperumal and Ors.(supra) it was held as under:-

7. In our view, a bare reading of this provision namely, second part of Order 1 Rule 10 sub-rule (2) of the 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

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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...

12. The Supreme Court was of the view that a third party to the Agreement to Sell cannot challenge the title of the vendor without filing a separate suit for title and possession against the vendor. It was held that it would not be appropriate for the Court to also start adjudicating the dispute of title with the vendor in the said suit.

13. The above judgment was noted and followed by the Supreme Court in

Vidur Impex and Traders Pvt. Ltd. and Ors. vs. Tosh Apartments Pvt. Ltd. and Ors (supra). The Supreme Court held as follows:-

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"41.Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are:

41.1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as Plaintiff or Defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit.

41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court.

413. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.

41.4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the Plaintiff.

41.5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.

41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment."

14. We may look at the judgment relied upon by the appellant i.e.

Sunitabai and Others vs. Paras Finance Co., (2007) 10 SCC 82. This was a case in which a suit for specific performance was filed against one Kapur

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Chand for specific performance of a contract for sale. However, the registered sale deed by which the property was purchased by the vendor showed that not only Kapur Chand but his sons were also owners. Thus prima facie, the Court concluded that the vendor of the property was not only Kapur Chand but also his sons. It was in that background that the Supreme Court held that it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed a third party cannot be impleaded in the suit. If the third party shows a sheer semblance of title and interest he can certainly file an application for impleadment. In this case the title of the third parties who sought to be impleaded was apparent on the face of the record.

15. In the present case there is no dispute that the defendant has a title to the suit property. The only dispute is the extent of title that the defendant would have.

16. Further, the litigation between the appellant and defendant has come to an end in the form of a compromise decree. The present suit cannot be converted into an adjudication of the rights of the parties based on the decree drawn up in the litigation in which appellant and defendants were parties. This dispute is best left to be adjudicated upon in a separate suit that may be filed by the appellant against defendants and others who are allegedly co-owners in the suit property. It would not be proper to convert this suit into a title dispute between the appellant and the defendant, his son.

17. It also cannot be ignored that the defendant and the appellant herein are father and son. There are merits in the submission of the plaintiff that the family of the defendants is putting spokes in the present litigation against the defendant. There appears to be a connivance between the plaintiff and the

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appellant.

18. In view of the clear judgment of the Supreme Court in Kasturi vs. Iyyamperumal (supra) I see no reasons to interfere in the impugned order passed by the Joint Registrar. The present appeal is dismissed.

JAYANT NATH, J.

APRIL 16, 2015

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