Gujarat High Court
Vinayak Land Developers vs Jaysukhlal Chhaganlal Gondaliya on 25 June, 2025
NEUTRAL CITATION
C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1969 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
✓
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VINAYAK LAND DEVELOPERS
Versus
JAYSUKHLAL CHHAGANLAL GONDALIYA & ORS.
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Appearance:
CHETANKUMAR V DARJI(9309) for the Petitioner(s) No. 1
MR DIGANT B KAKKAD(6523) for the Respondent(s) No.
1,14,15,16,17,18,19,2,20,21,23,24,25,26,27,28,29,3,30.2,30.3,30.4,30.5,30.6,
30.7,4
NOTICE ISSUED BY PUBLICATION for the Respondent(s) No. 10.3,9.1,9.2
SERVED BY RPAD (N) for the Respondent(s) No.
10.1,10.2,10.4,10.5,10.6,10.7,11.1,11.2,12.1,12.2,12.3,12.4,12.5,13,22,30,5,6
,7,8
UNSERVED EXPIRED (N) for the Respondent(s) No. 30.1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 25/06/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate, Mr.Digant B. Kakkad waives service of rule on behalf of respondent Nos.14 to 21 and 23 to 29. None appears for the rest of the respondents though served. With the consent of learned Page 1 of 26 Uploaded by MOHD MONIS(HC01900) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:45:14 IST 2025 NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined advocates appearing for respective parties, matter is taken up for final hearing.
2. It is reported to this Court that respondent No.30.1 died during the pendency of the present application, who was one of the partners of the partnership firm-respondent No.30, and according to learned advocate Mr.Chetankumar V. Darji, as per Order 30 Rule 4 of the Civil Procedure Code, 1908 (hereinafter referred to as "CPC"), his legal heirs are not required to be brought on record. So, the present application stands abated qua respondent No.30.1.
3. The present application is filed under Article 227 of the Constitution of India, seeking the following relief:-
"(A) Your Lordship may be pleased to admit this Special Civil Application.
(B) Your Lordship may be pleased to allow this Special Civil Application by issuing appropriate writ, order or direction for quashing and setting aside the impugned judgment and order dated 06/03/2020 passed by the Learned 4th Senior Civil Judge, Junagadh below exhibit-197 in SPECIAL CIVIL SUIT No. 121 of 1998 (Annexed at Annexure-A), in the interest of justice. (C) During pending admission and till final disposal of this application, Your Lordship, may be pleased to stay further proceeding of SPECIAL CIVIL SUIT. No. 121 of 1998 pending before the Learned 4th Senior Civil Judge, Junagadh, in the interest of justice.Page 2 of 26 Uploaded by MOHD MONIS(HC01900) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:45:14 IST 2025
NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined (D) This Hon'ble Court may be pleased to grant such other and further relief as deemed just and proper in the interest of justice."
4. The short facts of the case 4.1. The petitioner herein is the original plaintiff of Regular Civil Suit No. 121 of 1998, filed seeking specific performance of an agreement to sell executed by the plaintiff with respondent Nos.1 to 4 herein, who are the original defendants in the suit. Further, the facts as regards the nature of the controversy involved in the suit are not required for the adjudication of the present application. 4.2. Nonetheless, it is only observed that as per the nature of the relief claimed in the suit, wherein, over and above asking for specific performance of the agreement to sell and execution of sale deed in favour of the plaintiff, is also asked the possession of the suit property.
4.3. It appears that during the pendency of the suit, the original defendants-owners of the suit property have executed different sale deeds in favour of the rest of respondent Nos.5 to 30 on different dates.
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NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined 4.4. Having come to know about such transactions, pendente lite, the plaintiff preferred the impugned application below Exhibit 197 under Order 1, Rule 10 of the CPC to join respondent Nos.5 to 30 (hereinafter referred to as 'co- defendants'), having become owners of the suit properties. 4.5. The contesting respondents have objected to their impleadment in the suit as co-defendants, contending, inter alia, that they are neither party to the agreement to sell nor they have any prior notice of the pendency of the suit as the plaintiff has not registered any lis pendens, and also there was no stay operating against them to purchase the property, thereby they are neither a necessary nor a proper party. 4.6. After hearing the parties, the Trial Court, vide its order dated 06.03.2020, rejected the impugned application, whereby respondent Nos.5 to 30 herein are not joined in the suit proceedings.
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NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined
5. Being aggrieved and dissatisfied with the aforesaid impugned order, the original plaintiff has preferred the present application.
6. SUBMISSION OF THE PETITIONER-PLAINTIFF 6.1. Learned advocate Mr. Darji, appearing for the petitioner, would submit that the Trial Court has committed a grave error of law by rejecting the impugned application filed by the plaintiff and, by misconstruing the judgment of the Honourable Supreme Court, rejected the impugned application. 6.2. Learned advocate Mr. Darji would further submit that respondent Nos.5 to 30 (co-defendants) are purchasers of the suit properties at regular intervals during the pendency of the suit, thereby becoming owners of the suit property, whereby they are having right, title and interest in the suit property and as such, are now become necessary and proper parties in the suit proceedings.
6.3. Learned advocate Mr. Darji would further submit that the plaintiff, being dominus litis, having requested the Trial Page 5 of 26 Uploaded by MOHD MONIS(HC01900) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:45:14 IST 2025 NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined Court to join subsequent purchasers by way of registered sale deeds from the original owner, such application ought not to have been rejected.
6.4. Learned advocate Mr. Darji would further submit that the decision in the case of Kasturi vs Uyyamperumal & Ors , reported in (2005) 6 SCC 733, is totally misconstrued by the Trial Court, which resulted in a miscarriage of justice. 6.5. Learned advocate Mr. Darji would submit that it is the choice of the plaintiff to choose the defendants, especially the persons who are having right, title and interest in the suit property, who are required to be joined for the effective execution of the decree.
6.6. So, making the above submissions, learned advocate Mr. Darji requests this Court to allow the present application.
7. SUBMISSION OF THE RESPONDENT NOS.14 TO 21, AND 23 TO 29 7.1. Per contra, learned advocate Mr. Kakkad, appearing for some of the respondents (co-defendants) who are Page 6 of 26 Uploaded by MOHD MONIS(HC01900) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:45:14 IST 2025 NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined subsequent purchasers to be joined in the suit, has vehemently opposed the present application, contending, inter alia, that there is no error, much less any gross error of law, committed by the Trial Court in rejecting the impugned application and as such, this Court should not interfere with the well-reasoned order passed by the Trial Court while exercising its power under Article 227 of the Constitution of India. 7.2. Learned advocate Mr. Kakkad would further submit that the proposed defendants are bona fide purchasers for value without notice, as neither lis pendens nor a stay had been granted by the Trial Court, whereby they were not at all aware of the pendency of any suit filed at the instance of the present petitioner against the original owners of the suit property.
7.3. Learned advocate Mr. Kakkad would further submit that as per the settled legal position of law, in a case of a suit for specific performance of an agreement to sell, only parties to such agreement would be the necessary and proper parties, Page 7 of 26 Uploaded by MOHD MONIS(HC01900) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:45:14 IST 2025 NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined and no other party outside such agreement can be joined in such a suit.
7.4. Learned advocate Mr. Kakkad would rely upon the decision of Kasturi (supra) as well as Vidur Impex Tranders (P) Ltd. vs. Tosh Apartment (P) Ltd. reported in (2012) 8 SCC 384 (para - 42).
7.5. Learned advocate Mr. Kakkad would submit that when, undisputedly, the proposed defendants are neither party to the agreement nor had any knowledge about such agreement or the pendency of the suit, they could not have been joined in the suit, and in light of that fact and position of law, the impugned order does not suffer from any illegality and/or infirmity at the hands of the Trial Court. 7.6. Making the above submissions, learned advocate Mr. Kakkad would request this Court to reject the present application.
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NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined 7.7. Heard learned advocate Mr. Chetankumar V. Darji for the petitioner and learned advocate Mr. Digant B. Kakkad respondents No.5 to 21 and 22 to 29.
8. No other and further submissions are being made.
9. POINT FOR DETERMINATION 9.1. The short question that falls for my consideration is as to whether, in a suit for specific performance of an agreement to sell, can, at the instance of the plaintiff, a subsequent purchaser of the suit property by way of a registered sale deed be joined as a defendant in such suit or not?
10. ANALYSIS
11. The facts which are noted hereinabove are not in dispute. It is true that the suit in question is filed seeking specific performance of an agreement executed between the original plaintiff and defendants (owner of suit property), wherein the proposed co-defendants were not parties to such agreement.
12. At the same time, the proposed co-defendants are, undisputedly, purchasers of the suit property by way of Page 9 of 26 Uploaded by MOHD MONIS(HC01900) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:45:14 IST 2025 NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined independent registered sale deeds executed by the original defendants- owners of suit property in their favour. By virtue of such execution of registered sale deeds in their favour, they have become owners of the suit property, being transferees pendente lite.
13. Once, it has come on record that the suit property has changed hands from one party to another and in light of such fact, the plaintiff wants to join such subsequent purchasers who purchased the suit property by way of registered sale deeds, question may arise as to whether any impediment in the way of the plaintiff who can not bring those persons before the Court in the pending suit filed by him seeking specific performance of his agreement to sell executed with the original owner and so also seeking possession of suit property?
14. As such, by now, it is a well-settled legal position of law that the plaintiff is considered to be dominus litis, who is the maker of the suit and he has the choice to choose his opponents, albeit, such opponents must have a direct interest Page 10 of 26 Uploaded by MOHD MONIS(HC01900) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:45:14 IST 2025 NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined in the subject matter of the suit property being an immovable property.
15. To appreciate the controversy involved in the present application, the following few decisions of the Honourable Supreme Court are required to be noted down, which would clear the dust on the issue.
15.1. First, in the case of Razia Begum vs Sahebzadi Anwar Begum & Others reported in AIR 1958 SC 886, while appreciating the provisions of Order 1, Rule 10 (2) of the CPC, the Full Bench of the Honourable Supreme Court of India held thus:-
"13. As a result of these considerations, we have arrived at the following conclusions:
(1) That the question of addition of parties under Rule 10 of Order 1 of the Code of Civil Procedure, is generally not one of initial jurisdiction of the court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case; but in some cases, it may raise controversies as to the power of the court, in contradistinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in Section 115 of the Code;
(2) That in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject- matter of the litigation;
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NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined (3) Where the subject-matter of a litigation, is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy; (4) The cases contemplated in the last proposition, have to be determined in accordance with the statutory provisions of Sections 42 and 43 of the Specific Relief Act;
(5) In cases covered by those statutory provisions, the court is not bound to grant the declaration prayed for, on a mere admission of the claim by the defendant, if the court has reasons to insist upon a clear proof apart from the admission;
(6) The result of a declaratory decree on the question of status, such as in controversy in the instant case, affects not only the parties actually before the court, but generations to come, and in view of that consideration, the rule of "present interest", as evolved by case law relating to disputes about property, does not apply with full force; and (7) The rule laid down in Section 43 of the Specific Relief Act, is not exactly a rule of res judicata. It is narrower in one sense and wider in another."
(emphasis supplied)
16. Second in line, is the case of Kasturi (supra), which was in fact referred to by the Trial Court but failed to appreciate its ratio, wherein the Honourable Apex Court has observed and held as under:-
"14. Keeping the principles as stated above in mind, let us now, on the admitted facts of this case, first consider whether Respondents 1 and 4 to 11 are necessary parties or not. In our opinion, Respondents 1 and 4 to 11 are not necessary parties as an effective decree could be passed in their absence as they had not purchased the contracted property from the vendor after the contract was entered Page 12 of 26 Uploaded by MOHD MONIS(HC01900) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:45:14 IST 2025 NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined into. They were also not necessary parties as they would not be affected by the contract entered into between the appellant and Respondents 2 and 3. In the case of Anil Kumar Singh v. Shivnath Mishra [(1995) 3 SCC 147] , it has been held that since the applicant who sought for his addition is not a party to the agreement for sale, it cannot be said that in his absence, the dispute as to specific performance cannot be decided. In this case at para 9, the Supreme Court while deciding whether a person is a necessary party or not in a suit for specific performance of a contract for sale made the following observation: (SCC p.
150) "Since the respondent is not a party to the agreement of sale, it cannot be said that without his presence the dispute as to specific performance cannot be determined. Therefore, he is not a necessary party."
(emphasis supplied)
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. In our view, therefore, the court cannot allow adjudication of collateral matters so as to convert a suit for specific performance of contract for sale into a complicated suit for title between the plaintiff-appellant on one hand and Respondents 2 and 3 and Respondents 1 and 4 to 11 on the other. This addition, if allowed, would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit would have to be gone into. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of Respondents 1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made herein earlier, Respondents 1 and 4 to 11 would not, at all, be necessary to be added in the instant suit for specific performance of the contract for sale.
17 [Ed.: Para 17 corrected vide Official Corrigendum No. F.3/Ed.B.J./78/2005 dated 5-9-2005.] . It is difficult to Page 13 of 26 Uploaded by MOHD MONIS(HC01900) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:45:14 IST 2025 NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined conceive that while deciding the question as to who is in possession of the contracted property, it would be open to the court to decide the question of possession of a third party or a stranger as first the lis to be decided is the enforceability of the contract entered into between the appellant and Respondent 3 and whether contract was executed by the appellant and Respondents 2 and 3 for sale of the contracted property, whether the plaintiffs were ready and willing to perform their part of the contract and whether the appellant is entitled to a decree for specific performance of a contract for sale against Respondents 2 and 3. Secondly in that case, whoever asserts his independent possession of the contracted property has to be added in the suit, then this process may continue without a final decision of the suit. Apart from that, the intervener must be directly and legally interested in the answers to the controversies involved in the suit for specific performance of the contract for sale. In Amon v. Raphael Tuck and Sons Ltd. [(1956) 1 All ER 273 : (1956) 1 QB 357 : (1956) 2 WLR 372] it has been held that a person is 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.
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. For the reasons aforesaid, we are, therefore, of the view that Respondents 1 and 4 to 11 are neither necessary parties nor proper parties and therefore they are not entitled to be added as party-defendants in the pending suit for specific performance of the contract for sale.
(emphasis supplied)
17. As such, a reading of the decision of the Honourable Apex Court in the case of Kasturi (supra) would not lay down an absolute proposition that in a case for specific performance, Page 14 of 26 Uploaded by MOHD MONIS(HC01900) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:45:14 IST 2025 NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined if the plaintiff wants to join a subsequent purchaser in the suit, such recourse cannot be adopted by the Trial Court. According to me, the Trial Court has completely misread the proposition of law laid down in the decision of Kasturi (supra), which ultimately resulted in the rejection of the impugned application by the Trial Court.
18. Be that as it may, within a short span of two years from the date of the decision in Kasturi (supra), again, the Honourable Supreme Court in the case of Sumtibai & othersParas Finance Co. Mankanwar W/o Parasmal Chordia (D)& Ors reported in (2007) 10 SCC 82, after referring to the aforesaid decision in the case of Kasturi (supra), held thus:-
"9. Learned counsel for the respondent relied on a three- Judge Bench decision of this Court in Kasturi v. Iyyamperumal [(2005) 6 SCC 733] . He has submitted that in this case it has been held that in a suit for specific performance of a contract for sale of property a stranger or a third party to the contract cannot be added as defendant in the suit. In our opinion, the aforesaid decision is clearly distinguishable. In our opinion, the aforesaid decision can only be understood to mean that a third party cannot be impleaded in a suit for specific performance if he has no semblance of title in the property in dispute. Obviously, a busybody or interloper with no semblance of title cannot be impleaded in such a suit. That would unnecessarily protract or obstruct the proceedings in the suit. However, the aforesaid decision will Page 15 of 26 Uploaded by MOHD MONIS(HC01900) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:45:14 IST 2025 NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined have no application where a third party shows some semblance of title or interest in the property in dispute. In the present case, the registered sale deed dated 12-8-1960 by which the property was purchased shows that the shop in dispute was sold in favour of not only Kapoor Chand, but also his sons. Thus prima facie it appears that the purchaser of the property in dispute was not only Kapoor Chand but also his sons. Hence, it cannot be said that the sons of Kapoor Chand have no semblance of title and are mere busybodies or interlopers.
10. As observed by this Court in State of Orissa v. Sudhansu Sekhar Misra [AIR 1968 SC 647] vide para 13 :
(AIR pp. 651-52) "13. ... A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury, L.C. said in Quinn v. Leathem [1901 AC 495 : (1900-03) All ER Rep 1 (HL)] :
'Now before discussing the case of Allen v. Flood [1898 AC 1 : (1895-99) All ER Rep 52 (HL)] and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.' "
(emphasis supplied)
11. In Ambica Quarry Works v. State of Gujarat [(1987) 1 SCC 213] vide para 18 this Court observed : (SCC p. 221) Page 16 of 26 Uploaded by MOHD MONIS(HC01900) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:45:14 IST 2025 NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined "18. ... The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it."
12. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd. [(2003) 2 SCC 111] vide para 59 this Court observed : (SCC p. 130) "59. ... It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."
(emphasis supplied)
13. As held in Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani [(2004) 8 SCC 579 : AIR 2004 SC 4778] a decision cannot be relied on without disclosing the factual situation. In the same judgment this Court also observed :
(SCC pp. 584-85, paras 9-12) "9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton [1951 AC 737 (HL)] (AC at p. 761) Lord MacDermott observed : (All ER p. 14 C-D) 'The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge, ...' Page 17 of 26 Uploaded by MOHD MONIS(HC01900) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:45:14 IST 2025 NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined
10. In Home Office v. Dorset Yacht Co. [1970 AC 1004 : (1970) 2 WLR 1140 : (1970) 2 All ER 294 (HL)] (All ER p. 297 g-h) Lord Reid said, 'Lord Atkin's speech ...
is not to be treated as if it were a statutory definition. It will require qualification in new circumstances'. Megarry, J. in Shepherd Homes Ltd. v. Sandham (No.
2) [(1971) 1 WLR 1062] observed:'One must not, of course, construe even a reserved judgment of Russell, L.J. as if it were an Act of Parliament.' And, in Herrington v. British Railways Board [1972 AC 877 :
(1972) 2 WLR 537 (HL)] Lord Morris said : (All ER p. 761c) 'There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.'
11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
12. The following words of Hidayatullah, J. in the matter of applying precedents have become locus classicus : (Abdul Kayoom v. CIT [AIR 1962 SC 680] , AIR p. 688, para 19) '19. ... Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.' *** 'Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.' "
(emphasis supplied)
14. In view of the aforesaid decisions we are of the opinion that Kasturi case [(2005) 6 SCC 733] is Page 18 of 26 Uploaded by MOHD MONIS(HC01900) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:45:14 IST 2025 NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined clearly distinguishable. In our opinion it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. In our opinion, if C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced."
(Emphasis supplied)
19. Further, the Honourable Apex Court had an occasion to decide such a controversy again, which is germane here, its decided in the case of Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd. , reported in (2010) 7 SCC 417, wherein after taking into account both the aforesaid decisions of the Honourable Supreme Court, i.e., Kasturi (supra) and Sumtibai (supra), it held thus:-
"13. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure ("the Code", for short), which provides for impleadment of proper or necessary parties. The said sub- rule is extracted below:Page 19 of 26 Uploaded by MOHD MONIS(HC01900) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:45:14 IST 2025
NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined "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."
14. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party:
(a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party.
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.
16. The learned counsel for the appellants relied upon the following observations of a two-Judge Bench of this Court in Sumtibai v. Paras Finance Co. [(2007) 10 SCC 82] to contend that a person need not have any subsisting right or interest in the suit property for being impleaded as a Page 20 of 26 Uploaded by MOHD MONIS(HC01900) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:45:14 IST 2025 NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined defendant, and that even a person who is likely to acquire an interest therein in future, in appropriate cases, is entitled to be impleaded as a party: (SCC pp. 85 & 87, paras 9 & 14) "9. Learned counsel for the respondent relied on a three-Judge Bench decision of this Court in Kasturi v. Iyyamperumal [(2005) 6 SCC 733] . He has submitted that in this case it has been held that in a suit for specific performance of a contract for sale of property a stranger or a third party to the contract cannot be added as defendant in the suit. In our opinion, the aforesaid decision is clearly distinguishable. In our opinion, the aforesaid decision can only be understood to mean that a third party cannot be impleaded in a suit for specific performance if he has no semblance of title in the property in dispute. Obviously, a busybody or interloper with no semblance of title cannot be impleaded in such a suit. That would unnecessarily protract or obstruct the proceedings in the suit. However, the aforesaid decision will have no application where a third party shows some semblance of title or interest in the property in dispute. ...
***
14. ... it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. ... if C can show a fair semblance of title or interest he can certainly file an application for impleadment."
(emphasis in original)
21. On a careful consideration, we find that there is no conflict between the two decisions. The two decisions were dealing with different situations requiring application of different facets of sub-rule (2) of Rule 10 of Order 1. This is made clear in Sumtibai [(2007) 10 SCC 82] itself. It was observed that every judgment must be governed and qualified by the particular facts of the case in which such expressions are to be found; that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision and that even a single significant detail may alter the entire aspect; that there is always peril in treating the words of a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. The decisions in Page 21 of 26 Uploaded by MOHD MONIS(HC01900) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:45:14 IST 2025 NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined Ramesh Hirachand Kundanmal v. Municipal Corpn. of Greater Bombay [(1992) 2 SCC 524] and Anil Kumar Singh v. Shivnath Mishra [(1995) 3 SCC 147] also explain in what circumstances persons may be added as parties.
25. 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.
26. 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 [(2005) 6 SCC 733] and Sumtibai [(2007) 10 SCC 82] are with reference to the facts and circumstances of the respective cases. In Kasturi [(2005) 6 SCC 733] 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 [(2007) 10 SCC 82] this Court held that a person having semblance of a title can be considered as a proper party. Sumtibai [(2007) 10 SCC 82] did not lay down any proposition that anyone claiming to have any semblance of title is a necessary party. Nor did Kasturi [(2005) 6 SCC 733] 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."
(Emphasis supplied)
20. The conjoined reading of the aforesaid decisions which are referred to hereinabove would clearly lay down that a person who has a direct interest in the immovable property would be a necessary and proper party to be joined in the suit proceedings.
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NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined
21. When the plaintiff a dominus litis wants a person who has a direct interest in the immovable property to be joined in the suit, unless it has been pointed out that there is any legal impediment whereby such a party cannot be joined in the suit, such an application is required to be allowed by the Court.
22. The decision which has been relied upon by learned advocate Mr. Kakkad in the case of Vidur Impex Tranders (P) Ltd. (supra), again, if the facts of that particular case are analyzed, it appears that despite there being an injunction granted by the court, the suit property was sold by the owner to a third party, and that third party insisted on to be joined, though opposed by the plaintiff. In that background of facts, the Honourable Supreme Court, after analyzing its previous decisions and law, also observed that such an act of transfer is not valid in law and refused the application of the third party (subsequent purchaser of suit property) who intended to join in the suit.
22.1. In view of said peculiar facts in the decision of the Honourable Supreme Court in the case of Vidur (supra), such Page 23 of 26 Uploaded by MOHD MONIS(HC01900) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:45:14 IST 2025 NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined decision would not be applicable and as such is not helpful to the case of the proposed co-defendants.
23. According to my view, when the plaintiff has filed an application to join subsequent purchasers who are transferees pendente lite and purchased the suit properties by way of different registered sale deeds from the original owners, they are necessary and proper parties for the adjudication of the suit, though filed seeking performance of an agreement to sell executed between the plaintiff and the original defendants- owners of suit property, more particularly when a prayer as regards the possession of the suit property is also prayed for by the plaintiff, which is ultimately required to be decided in the presence of the persons who are now occupying the suit property as on today by virtue of their registered sale deed.
24. CONCLUSION 24.1. Thus, in view of the aforesaid observations, discussions and reasons, I am of the view that the plaintiff is entitled to add the subsequent purchasers - transferees pendente lite of Page 24 of 26 Uploaded by MOHD MONIS(HC01900) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:45:14 IST 2025 NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined the suit property, as co-defendants in the suit, as they are purchasers of the suit property by way of registered sale deeds from the original owners of the suit property. 24.2. The Trial Court has committed a serious and gross error of law and has not properly exercised its jurisdiction and so discretion while adjudicating the impugned application filed under Order 1, Rule 10(2) of the CPC.
24.3. The impugned order is required to be quashed and set aside and is hereby quashed and set aside. 24.4. Consequently, the impugned application filed below Exhibit 197 by the plaintiff in the aforesaid suit is hereby allowed, and thereby, respondent Nos.5 to 30, except 30.1 against who its abated, are hereby joined in the aforesaid suit being Special Civil Suit No. 121 of 1998 pending before Civil Judge, Senior Division, Junagadh. Accordingly, suit be amended by adding co-defendants as aforesaid. 24.5. As this suit is of the year 1998, the newly added defendants/parties are directed to file their written statements Page 25 of 26 Uploaded by MOHD MONIS(HC01900) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:45:14 IST 2025 NEUTRAL CITATION C/SCA/1969/2021 JUDGMENT DATED: 25/06/2025 undefined within 60 days from the date of receipt of the copy of the order; thereafter, the Trial Court may frame necessary issues if not so far framed, and the proposed parties can also submit their suggested issues, if they wish.
24.6. In any case, the trial of the suit is ordered to be expedited, having considered the fact that the suit is of the year 1998, and it should be adjudicated at the earliest and finally decided by the Trial Court within a period of one year from the date of framing of issues be framed after pleading of newly added defendants get completed.
25. With the aforesaid direction, the present writ application is allowed. Rule is made absolute to the aforesaid extent. No order as to costs. Interim relief, if any granted earlier, stands vacated forthwith.
(MAULIK J.SHELAT,J) MOHD MONIS Page 26 of 26 Uploaded by MOHD MONIS(HC01900) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:45:14 IST 2025