Bombay High Court
Krsihnabai Mallappa Herwade And Ors vs Shri Kiran Kalgonda Patil And Ors on 10 March, 2021
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11516 OF 2015
Krishnabai Mallappa Herwade & Ors. ... Petitioners
Vs.
Shri Kiran Kalgonda Patil & Ors. ... Respondents
...........
Mr. Chetan Gajanan Patil a/w. Mr. Mandar Bagkar for the Petitioners.
Mr. Pratap Patil for the Respondent No.1 & 2.
Mr Abhay A. Jadhavar i/b. Mr. Sachin K. Hande for the Respondent
No.3.
..........
CORAM: MADHAV J. JAMDAR, J.
DATE : 10th MARCH, 2021.
P. C:-
1. By this Petition filed under Article 227 of the Constitution of
India, the Petitioners have challenged the order dated 13th April,
2015 passed below Exhibit-53 in Special Civil Suit No. 5 of 2012 by
Learned Civil Judge, Senior Division, Sangli. The said Application
bearing Exhibit-53 was filed by the Plaintiffs under Order 1 Rule 10
of Code of Civil Procedure for impleading Petitioners i.e. sisters of
original Defendant Nos. 1 to 4 as Defendant Nos. 7 to 10 and also
for impleading as Defendant Nos. 11 and 12 subsequent purchasers
of certain portions of the suit property.
2. The said suit bearing Special Civil Suit No. 5 of 2012 is
specifically filed for the specific performance of the suit agreement
dated 27th February, 2003. The said Application at Exhibit-53 was
allowed by the impugned order dated 13 th April, 2015. The said
order is challenged by the Petitioners i.e. proposed Defendant Nos. 7
to 10 i.e. the sisters of vendors.
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3. It is the contention of Mr. Chetan Patil, Learned Advocate
appearing on behalf of the Petitioners that as per the settled legal
position, the parties to the agreement are only necessary and proper
parties in the suit for specific performance. In support of his
contention, Mr. Chetan Patil has relied on the following judgments:-
1. Kasturi V/s. Iyyamperumal 2005 (6) SCC 733.
2. Bharat Karsondas Thakkar Vs. Kiran Construction Co. & Ors.
2008 AIR (SC) 2134.
3. Anil Kumar Singh Vs. Shivnath Mishra Alias Gadasa Guru
1995 (1) JT 273.
4. Pandit Bahuso Khavare Vs. Rajaram Shivappa Shinge & Ors.
(Bombay High Court, Writ Petition No. 3423 of 2019)
4. On the other hand, it is the contention of Mr. Pratap Patil, the
learned Advocate appearing for the Respondent Nos. 1 and 2 i.e.
original Plaintiffs that suit filed is not simplicitor for specific
performance but it is also for partition. He therefore submitted that
the sisters are also necessary and proper parties.
5. A perusal of the agreement dated 27th February, 2003 executed
between the original Defendant Nos. 1 to 4 i.e. Respondent Nos. 3 to
6 and original Plaintiffs i.e. Respondent Nos. 1 and 2 show that the
Respondent Nos. 3 to 6 agreed to sell certain portion of agricultural
land to the Respondent Nos. 1 and 2. While describing the property
which is the subject matter of the said agreement, it is specifically
mentioned that out of survey No. 229/3B, 230/B, 231/B land
admeasuring 40 Aar is subject matter of sale agreement by excluding
80 feet DP Road and plot reserved by Municipality.
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6. A perusal of the plaint clearly shows that the suit is filed for
specific performance and the prayer clauses set out in the plaint are
for execution of sale deed in compliance with the agreement and
possession of the said 40 Aar portion demanded as per the
description set out in the agreement. Thus, there is no substance in
the contention of Mr. Pratap Patil that suit is not simplicitor for
specific performance but for partition. The prayers which are set out
in the plaint are made on the basis of various terms and conditions
of the said agreement. Thus, it is very clear that the suit is filed only
for the specific performance of the agreement.
7. It is well settled legal position as held by the Hon'ble Supreme
Court in above mentioned judgments that in a suit for specific
performance of a contract for sale, the issue to be decided is the
enforceability of the contract entered into between the parties and
whether the Plaintiffs are ready and willing to perform their part of
the contract and whether they are entitled for the decree for specific
performance of contract. It is also well established that the issues
regarding the right, title and interest in the suit property of the
strangers 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. If contentions of Mr. Pratap Patil are accepted that
sisters are necessary and proper parties as the Plaintiff is seeking
possession in the manner as specified in the agreement then, that
will amount to converting the suit which is for specific performance
into suit for title by impleading sisters as parties to the suit as
according to Plaintiffs they are having certain right, title and
interest. The contentions raised by Mr. Pratap Patil are squarely
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covered by the judgment of Hon'ble Supreme Court in the matter
between Kasturi V/s. Iyyamperumal 2005 (6) SCC 733. In that
judgment, it is clearly held that strangers to the contract cannot be
impleaded as party in suit for specific performance. It is further held
that if the decree is passed in favour of the Plaintiffs and the sale
deed is executed in favour of the Plaintiffs, then the strangers to the
contract have to be sued seeking possession, if such strangers are in
possession of the property. The other judgments which are cited by
Advocate Chetan Patil reiterates the said position.
8. The judgment of learned Single Judge dated 13 th September,
2019 passed in Writ Petition No. 3423 of 2019 is squarely applicable
to the facts of the present case, as in that case also sisters were
sought to be impleaded as parties as they have filed suit for
partition. The learned Single Judge on the basis of aforesaid
judgment of Hon'ble Supreme Court in the case of Kasturi held that
in suit for specific performance of contract for sale, the lis between
the vendor and the vendee shall only be gone into and that question
to be decided in a suit for specific performance of contract for sale is
regarding the enforceability of the contract entered into between the
parties to the contract and if the sisters are added in such a suit, the
scope of the suit would be enlarged.
9. In the Writ Petition the challenge to the impugned order dated
13th April, 2015 is restricting only insofar as addition of the
Petitioners as party Defendants is concerned. By the impugned order
Respondent Nos. 9 and 10 were also directed to be impleaded as
parties . The said part of the impugned order is not challenged by
the Petitioners and Advocate Chetan Patil submits that even said part
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is not challenged by the Respondent No. 9 and 10.
10. In view of above discussion the following order is passed:-
ORDER
(i) The impugned order dated 13th April, 2015 passed by the learned Civil Judge, Senior Division, Sangli below Exhibit-53 in Special Civil Suit No. 5 of 2012 is quashed and set aside, as far as the Petitioners i.e. proposed Defendant Nos. 7 to 10 are concerned.
(ii) It is clarified that Application bearing Exhibit-53 in Special Civil Suit No. 5 of 2012 is dismissed only as regards prayer to implead Petitioners i.e. proposed Defendant Nos. 7 to 10 is concerned. It is clarified that the impugned order dated 13 th April, 2015 by which proposed Defendant Nos. 11 and 12 i.e. Respondent Nos. 9 and 10 were directed to be impleaded as parties to the said Special Civil Suit No. 5 of 2012 is not affected by this order.
(iii) The Writ Petition is allowed in the aforesaid terms with no order as to costs.
(iv) Ad-interim relief if any, shall stand vacated.
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