Punjab-Haryana High Court
Meena & Ors vs Om Parkash & Ors on 21 November, 2014
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
Civil Revision No.7883 of 2014 -1-
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Revision No.7883 of 2014
Date of decision: 21.11.2014
Meena and others
....Petitioners
Versus
Om Parkash and others ...Respondents
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr. S.K.Chauhan, Advocate for the petitioners.
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G.S.Sandhawalia J.(Oral)
1. Challenge in the present revision petition is to the order dated 3.11.2014 (Annexure P/2) whereby the application filed under Order 1 Rule 10 CPC by the present petitioners-applicants had been dismissed by the Lower Appellate Court, Bhiwani.
2. Counsel for the petitioners submits that the applicants were coparceners in the property in dispute and therefore were necessary party in the suit which has been decreed and therefore, should have been impleaded by the Lower Appellate Court in the appellate proceedings.
3. After hearing counsel for the petitioners, this Court is of the opinion that there is no merit in the present revision petition. A perusal of the facts would go on to demonstrate that Om Parkash and Ashok Kumar sons of Atam Parkash, respondents no.1 and 2 had entered into an agreement to sell the land in dispute on 24.1.2006. The petitioners are daughters of Om Parkash and Ashok Kumar. The suit for specific performance was filed on 19.5.2007 by respondents no.3 to 5. The suit was contested tooth and nail by respondents no.1 and 2 on all possible grounds but a decree has been passed on 29.9.2011 wherein the said respondents have been directed to perform their part of the agreement to sell within two months after passing of the decree on the payment of balance sale consideration. The said respondents filed appeal PRADEEP KUMAR ARORA 2014.11.28 10:24 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.7883 of 2014 -2- *** before the Lower Appellate Court in which the impugned order has been passed.
4. The petitioners have also filed civil suit on 16.11.2013 challenging the proposed transfer of land on the basis of agreement in question on the ground that it is malafide act and they had a right by birth in the land being ancestral and coparcenary and not an act of good management. Respondents no.3 to 5 have given statement therein that they would not alienate the property till the decision of the suit as per order dated 7.12.2013 and thus it is apparent that the petitioners had chosen to protect their rights by way of filing a separate suit. They are not party to the agreement in question as the appeal arises out of the suit for specific performance. As per provision of Section 15(a) of the Specific Relief Act, 1963 the necessary parties are the persons who are parties to the contract. The principle of dominus litis provides that person cannot be forced to litigate against a person against whom he does not seek any relief. In the present case, the dispute is regarding the execution of the agreement and whether the same was liable to be enforced by way of specific performance. Photocopy of the judgment which is subject matter of the appeal has been perused. It is apparent that the suit has been contested and that other coparceners have not let a decree be passed by way of consent and there is no fraud as such.
5. The Apex Court in Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre & Hotels Pvt. Ltd. and others 2010(7) SCC 417 laid down the principles regarding the issue of impleadment of parties and who are necessary and proper parties. It was further laid down that no person has a right to insist that he should be impleaded as party merely because he is a proper party and right of extent of his share could be decided in independent proceedings since in a suit for specific performance the only issue which was to be decided was whether the defendant had executed the agreement/contract and whether such contract could be specifically enforced. The principles laid PRADEEP KUMAR ARORA 2014.11.28 10:24 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.7883 of 2014 -3- *** down read as under:-
"12.1) If a plaintiff makes an application for impleading a person as a defendant on the ground that he is a necessary party, the court may implead him having regard to the provisions of Rules 9 and 10(2) of Order I. If the claim against such a person is barred by limitation, it may refuse to add him as a party and even dismiss the suit for non-joinder of a necessary party.
12.2) If the owner of a tenanted property enters into an agreement for sale of such property without physical possession, in a suit for specific performance by the purchaser, the tenant would not be a necessary party. But if the suit for specific performance is filed with an additional prayer for delivery of physical possession from the tenant in possession, then the tenant will be a necessary party in so far as the prayer for actual possession.
12.3) If a person makes an application for being impleaded contending that he is a necessary party, and if the court finds that he is a necessary party, it can implead him. If the plaintiff opposes such impleadment, then instead of impleading such a party, who is found to be a necessary party, the court may proceed to dismiss the suit by holding that the applicant was a necessary party and in his absence the plaintiff was not entitled to any relief in the suit.
12.4) If an application is made by a plaintiff for impleading someone as a proper party, subject to limitation, bonfides etc., the court will normally implead him, if he is found to be a proper party. On the other hand, if a non-party makes an application seeking impleadment as a proper party and court finds him to be a proper party, the court may direct his addition as a defendant; but if the court finds that his addition will alter the nature of the suit or introduce a new cause of action, it may dismiss the application even if he is found to be a proper party, if it does not want to widen the scope of the specific performance suit; or the court may direct such applicant to be impleaded as a proper party, either unconditionally or subject to terms. For example, if `D' claiming to be a co-owner of a suit property, enters into an agreement for sale of his share in favour of `P' representing that he is the co-owner with half share, and `P' files a suit for specific performance of the said agreement of sale in PRADEEP KUMAR ARORA 2014.11.28 10:24 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.7883 of 2014 -4- *** respect of the undivided half share, the court may permit the other co-owner who contends that `D' has only one-fourth share, to be impleaded as an additional defendant as a proper party, and may examine the issue whether the plaintiff is entitled to specific performance of the agreement in respect of half a share or only one- fourth share; alternatively the court may refuse to implead the other co-owner and leave open the question in regard to the extent of share of the vendor-defendant to be decided in an independent proceeding by the other co-owner, or the plaintiff; alternatively the court may implead him but subject to the term that the dispute, if any, between the impleaded co-owner and the original defendant in regard to the extent of the share will not be the subject matter of the suit for specific performance, and that it will decide in the suit, only the issues relating to specific performance, that is whether the defendant executed the agreement/contract and whether such contract should be specifically enforced. In other words, the court has the discretion to either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party.
13. If the principles relating to impleadment, are kept in view, then the purported divergence in the two decisions will be found to be non- existent. The observations in Kasturi and Sumtibai are with reference to the facts and circumstances of the respective case. In Kasturi, this Court held that in suits for specific performance, only the parties to the contract or any legal representative of a party to the contract, or a transferee from a party to the contract are necessary parties. In Sumtibai, this Court held that a person having semblance of a title can be considered as a proper party. Sumtibai did not lay down any proposition that anyone claiming to have any semblance of title is a necessary party. Nor did Kasturi lay down that no one, other than the parties to the contract and their legal representatives/transferees, can be impleaded even as a proper party."
6. Resultantly, this Court is of the opinion that the petitioners are not PRADEEP KUMAR ARORA necessary party in the appeal which is a subject matter of consideration. The 2014.11.28 10:24 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.7883 of 2014 -5- *** order dated 3.11.2014 passed by the Lower Appellate Court is well justified and does not warrant any interference under Article 227 of the Constitution of India.
7. Accordingly, the present revision petition is dismissed.
21.11.2014 (G.S.SANDHAWALIA)
Pka JUDGE
PRADEEP KUMAR ARORA
2014.11.28 10:24
I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court,
Chandigarh