Calcutta High Court
Kanta Devi Berlia vs Mohit Jhunjhunwalla And Ors. on 21 February, 2006
Equivalent citations: 2006(2)CHN161, 2007(2)CTLJ361(CAL), AIR 2006 (NOC) 1270 (CAL), 2006 A I H C 1755, (2006) 2 ICC 681, (2006) 2 CAL LJ 601, (2006) 2 CALLT 437, (2006) CAL WN 524, (2006) 44 ALLINDCAS 852 (CAL), (2006) 2 CAL HN 161, (2006) 44 ALLINDCAS 852
Author: Subhro Kamal Mukherjee
Bench: Subhro Kamal Mukherjee
JUDGMENT Subhro Kamal Mukherjee, J.
1. This is an application under Article 227 of the Constitution of India against Order No. 11 dated December 14,2005 passed by the learned Civil Judge (Senior Division), Fourth Court at Alipore, District: South 24-Parganas in Title Suit No. 76 of 2005.
2. By the order impugned the learned Trial Judge allowed an application for addition of party filed by the opposite party No. 3 in the said suit.
3. The plaintiffs, who are opposite party Nos. 1 and 2 in this revisional application, instituted Title Suit No. 76 of 2005 in the Court of the learned Civil Judge (Senior Division), Fourth Court at Alipore, District : South 24-Parganas against the petitioner in this revisional application, inter alia, for specific performance of contract, declaration and injunction contending that the present petitioner is the absolute owner of premises No. 29, Sarat Bose Road, Police Station : Bhabanipore, Kolkata, and she has entered into an agreement for sale in favour of the said plaintiffs on July 27, 2005 agreeing to convey the said property, free from all encumbrances, attachment, charges and other claims and demands, at and for a consideration of Rs. 1,01,00,000/-.
4. Before filing of the said Title Suit No. 76 of 2005, Vivek Agarwal, the opposite party No. 3 in this revisional application, on or about September 21. 2005, instituted Title Suit No. 70 of 2005 in the Court of the learned Civil Judge (Senior Division), Fourth Court at Alipore, District South 24-Parganas against the said Kanta Devi Berlia, the petitioner in this revisional application. It is alleged in the said suit that on August 18, 2005 the said Shrimati Kanta Devi Berlia had entered into an agreement for sale with the said Vivek Agarwal agreeing to convey the said premises No. 29, Sarat Bose Road at an agreed consideration of Rs. 1 crore. Therefore, Vivek Agarwal in Title Suit No. 70 of 2005, inter alia, prayed for a decree for declaration that the said Vivek Agarwal acquired an equitable right to purchase the suit property in pursuance of the agreement dated August 18, 2005.
5. The said Vivek Agarwal moved an application for temporary injunction, inter alia, to restrain the said Shrimati Kanta Devi Berlia and her men and agents from transferring, assigning, selling or in any way encumbering the said premises No. 29, Sarat Bose Road, Kolkata during the subsistence of the contract as evidenced by the instrument dated August 18, 2005. In the said suit Vivek Agarwal moved an application for temporary injunction, but failed to obtain even any ex parte ad interim order of injunction. Upon a contested hearing, the learned Trial Judge by order dated October 6, 2005 rejected such application for temporary injunction.
6. Vivek Agarwal on or about October 24, 2005 filed an application under Order 1 Rule 10(2) read with Section 151 of the Code of Civil Procedure in connection with Title Suit No. 76 of 2005 seeking his addition as a defendant in the said Title Suit No. 76 of 2005.
7. He alleges in the application that he is a person interested in the carriage of the proceeding as he acquires an equitable right to obtain conveyance of the suit property in his favour and a serious complication crops up in the matter of adjudication of the dispute centering the right to have the conveyance of the suit property, which is identical in both the above two suits. He also, alleges in the said application that Title Suit No. 76 of 2005 is instituted in collusion and connivance between the plaintiffs and the defendant of this suit with a sinister motive to defeat the claim of the said Vivek Agarwal as made out in his Title Suit No. 70 of 2005.
8. Both the plaintiffs and the defendant in Title Suit No. 76 of 2005 contested the prayer for addition of Vivek Agarwal.
9. The learned Trial Judge by the order impugned allows the application for addition of party and directed addition of Vivek Agarwal as the defendant No. 2 in Title Suit No. 76 of 2005, inter alia, to avoid multiplicity of proceeding and contradiction of judgment although the plaintiffs do not seek any relief against him. The learned Judge holds that the said Vivek Agarwal though not a necessary party in the suit, but he should be added in the suit as a proper party for complete and effective adjudication.
10. Being aggrieved the defendant has come up with this revisional application.
11. The plaintiffs, also, argue in course of hearing of this revisional application that the application for addition of party filed by Vivek Agarwal should have been rejected by the learned Trial Judge.
12. In a suit for specific performance of agreement to sell a property, a person who is not a party to the agreement, is not entitled to be impleaded as a defendant. In such a suit, decree sought against the defendant is for the purpose of enforcement of the agreement inter se the executants. No relief is sought against any stranger to the agreement. In a suit for specific performance of agreement to sell property if a party, who is not a party to the agreement, is impleaded, it will enlarge the scope of the suit, change its nature and turn it into a suit for title. This would be impermissible, as it will prejudice fair trial of the suit for specific performance instituted by the plaintiff.
13. Vivek Agarwal asserts that there is a contract dated August 18, 2005 between him and the said Shrimati Kanta Devi Berlia concerning the suit property. He, further, asserts that Shrimati Kanta Devi Berlia agrees to convey the suit property for Rs. 1 crore to him. Therefore, he has acquired an equitable right to purchase the suit property in pursuance of the said agreement dated August 18, 2005.
14. It is settled law that an agreement for sale of the immovable property does not, of itself, create any interest in or charge on such property.
15. In Gosto Behari Sarkar v. Sur's Estate Limited, reported in ILR 1946(1) Cal 656, an application was filed by one Kanchanlal Sarkar to be added as a party defendant to the suit, which was filed by one Gosto Behari Sarkar against Sur's Estate Limited for specific performance to an agreement to sell the property. Kanchanlal claimed that the defendant agreed to sell the self-same property to him.
16. Clough, J. held In the circumstances, it cannot be said that the applicant is a proper party to the suit which has been filed.
The question remains, however, whether he is a person whose presence is necessary within the meaning of the latter part of Order 1 Rule 10 (2). In my judgment, he plainly is not. The question involved in this suit are two : (1) Was there an agreement between the plaintiff and defendant to sell, as has been alleged? Only if there was, has the plaintiff a cause of action? (2) Are there in this case special circumstances, from which it follows that damages will not be an adequate compensation? Only if this is established is the plaintiff entitled to the particular relief claimed, namely, specific performance.
With regard to the second of these questions, it cannot be, and has not been contended, that the applicant's presence is at all necessary in order to enable the Court to adjudicate upon it.
With regard to the first question, I am quite unable to see that the presence of the applicant is necessary in order to enable the Court effectually and completely to adjudicate upon and settle it. It has nothing whatever to do with him. The applicant may have a personal interest in the question and for reasons of his own he may be anxious to see it decided in a particular way. I cannot see that the position so far as he is concerned is any stronger than that. But what must be shown is the Court's need and not merely the applicant's interest.
17. The Supreme Court of India in Kasturi v. Iyyamperumal and Ors., reported in 2005(6) SCC 733, holds that a bare reading of the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure would clearly show that the necessary parties in a suit for specific performance of contract for sale are the parties to the contract or if they are dead, their legal representatives as, also, a person, who has 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. Two tests are to be satisfied for determining the question who is a necessary party. The tests are (1) there must be 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. 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. 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.
18. The learned Trial Judge allowed the application for addition of party filed by the said Vivek Agarwal, the opposite party No. 3 in this revisional application, holding, inter alia, that he is a proper party for complete and effective adjudication of the suit.
19. In the facts and circumstances of this case and in the background of the settled position in law, in my view, the learned Trial Judge applied wrong legal tests in considering the application for addition of party filed by the opposite party No. 3. The opposite party No. 3 is not a necessary party as has been rightly held by the learned Trial Judge. Similarly, he is not a proper party in this suit. His presence is not at all necessary in this suit for effective and complete adjudication of the issues involved in this suit.
20. The order impugned is, therefore, set aside. The application for addition of party filed by Vivek Agarwal in Title Suit No. 76 of 2005 is rejected.
21. The revisional application is, thus, allowed. 22.1 make no order as to costs.
23. Xerox certified copy of this order, if applied for, is to be supplied to the applicants on urgent basis.
Later:
24. After the judgment is pronounced, Mr. Kumar Gupta, learned advocate, appearing for the opposite party No. 3. prays for stay of operation of this order. Such prayer is considered and rejected.