Punjab-Haryana High Court
Bahadur Singh And Anr. vs Avtar Singh on 21 February, 2007
Equivalent citations: (2007)147PLR628, AIR 2007 (NOC) 1528 (PUNJ. & HAR.)
JUDGMENT Vinod K. Sharma, J.
1. By way of present revision petition, the petitioner have challenged the order dated 22.3.2006 passed by the learned Additional Civil Judge (Senior Division), Malerkotla, vide which the application moved by the petitioners under Order 1 Rule 10 and Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure has been dismissed.
2. The plaintiff-petitioners filed a suit for specific performance of agreement to sell dated 19.12.2002. Along with the suit an application under Order 39 Rules 1 and 21 of C.P.C. was also filed in which the respondent was restrained from alienating the suit land in any manner. In the said suit, Sarvshri Jasbir Singh and Jagdeep Singh, sons of Mohinder Singh, had moved an application dated i 1.12.2003 under Order 1 Rule 10 of the C.P.C. for being impleaded as a party on the plea that the there was an agreement to sell dated 7th December 2002 qua the suit land in their favour which was executed by Avtar Singh defendant. The plaintiff-petitioners contested the said application on the ground that the remedy of Jasbir Singh and Jagdeep Singh was to file a separate suit on the basis of alleged agreement of sale. The said application was dismissed by the learned civil judge (Jr. Division) Malerkotla, vide order dated 12th May, 2004 by observing as under:
In view of the above discussion and law laid down by Hon'ble Punjab and Haryana High Court the applicants are not at all necessary party. However, if they have any right or interest in the property in dispute on the basis of an agreement to sell; they are at liberty to file a separate civil suit against defendant. Finding no merit in the application the same stands dismissed. Now to come up for evidence of plaintiff on 2.9.2004.
3. The plaintiff-petitioners pleaded that Sarvshri Jasbir Singh and Jagdeep Singh did not apply for consolidation of suit filed by them and by concealing material fact from the Court obtained a decree for specific performance. The said judgment and decree was got executed by the Court and sale-deed in their favour was executed on 27.1.2005. The case of the petitioners was that in view of this development, it became necessary for the petitioners to implead them as a party as also to amend his suit to challenge the subsequent judgment and decree as well as the sale deed executed in favour of Sarvshri Jasbir Singh and Jagdeep Singh.
4. The learned trial Court took note of the fact that the application moved by Jasbir Singh and Jagdeep Singh for being imp leaded as a party was challenged by the petitioners on the plea that they would be at liberty to file a separate suit and, therefore, it was not open to the petitioners to claim now that they were necessary parties to the present suit. The learned trial Court further noticed that in the written statement filed by Avtar Singh, a specific objection was taken that the suit was bad for non-joinder of necessary parties as there was an agreement to sell in favour of Jasbir Singh and Jagdeep Singh. This assertion was also opposed by the petitioner. The learned trial Court, therefore, came to the conclusion that the subsequent sale in favour of Jasbir Singh and Jagdeep Singh did not make them necessary parties to the suit for specific performance and accordingly the application moved by the petitioners was dismissed.
5. Mr. Arun Palli, learned Counsel for the petitioners challenged the order primarily on the ground that the application moved was necessary for dispensation of justice as in view of the subsequent development, no effective decree can be passed in the absence of Jasbir Singh and Jagdeep Singh. In support of this contention, he placed reliance on a judgment of the Hon'ble Supreme Court in the case of Rajesh Kumar Aggarwal and Anr. v. K.K. Modi and Ors. wherein it was held that the amendment of pleadings should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. This plea of the petitioner prima facie cannot be accepted in view of the fact that the amendment sought by the petitioner was within the knowledge of the petitioners when the suit was filed or in any case when the written statement was filed and the application moved by Jasbir Sigh and Jagdeep Singh for being impleaded as parties. In view of proviso to Order 6 Rule 17 of the Code of Civil Procedure amendment with regard to the facts which were within knowledge of the petitioners or could be found with due diligence cannot be allowed after commencement of the trial and in the present case, the trial has already commenced and, therefore, the learned trial Court was right in rejecting the application for amendment.
6. Mr. Harsh Aggarwal, learned Counsel for the respondent in support of the impugned order placed reliance on a judgment of the Hon'ble Supreme Court in the case of Kasturi v. Iyyamperumal and Ors. to contend that in a suit for specific performance of contract for sale, a 3rd party claiming independent title and possession over the contracted property is neither necessary nor proper party and, therefore, is not entitled to join as a party. He made reference to paras 10 to 13 of the said judgment which read as under:
10. 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. 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 fur specific performance would be enlarged and it would be practically converted into a suit for title. Therefore, for effective adjudication of the controversies involved in the suit, presence of such parties cannot be said to be necessary at all. Lord Chancellor (Tottenham in Tasker v. Small 1834(4) English Report 848 made the following observations:
It is not disputed that, generally, to a bill for a specific performance of a contract for sale, the parties to the contract only are the proper parties; and, when the ground of the jurisdiction of Courts of Equity in suits of that kind is considered it could not properly be otherwise. The Court assumes jurisdiction in such cases, because a court of law, giving damages only for the non-performance of the contract, in many cases does not afford an adequate remedy. But, in equity, as well as in law, the contract constitutes the right and regulates the liabilities of the parties; and the object of both proceedings is to place the party complaining as nearly as possible in the same situation as the defendant had agreed that he should be placed in. It is obvious that persons, strangers to the contract, and, therefore, neither entitled to the right, nor subject to the liabilities which arise out of it, are as much strangers to proceeding to enforce the execution of it as they are to be proceeding to recover damages for the breach of it.
11. The aforesaid decision in 40 E.R. 848 was noted with approval in (De Hogton v. Money 1886(2) Ch. 164) as page 170. Turner, L.J. observed:
Here again his case is met by (1834)40 E.R. In which case it was distinctly laid down that a purchaser cannot, before his contract is carried into effect, enforce against strangers to the contract equities attaching to the property, a rule which, as it seems to me, is well founded in principle, for if it were otherwise, this Court might be called upon to adjudicate upon questions which might never arise, as it might appear that the contract either ought not to be, or could not be performed.
12. From the aforesaid discussion, it is pellucid that necessary parties are those persons in whose absence no decree can be passed by the Court or that there must be a right to some relief against some party in respect of the controversy involved in the proceedings and proper parties are those whose presence before the Court would be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such persons.
13. Keeping the principles as stated above in mind, let us now, on the admitted facts of this case, first consider whether the respondent Nos. 1 to 4 to 11 are necessary parties or not. In our opinion, the respondent Nos. 1 and 4 to 11 are not necessary parties as effective decree could be passed in their absence as they had not purchased the contracted property from the vender after the contract was entered into. They were also not necessary parties as they would not be affected by the contract entered into between the appellant and the respondent Nos. 2 and 3. In the case of Anil Kumar Singh v. Shivnath Mishra alias Gadasa Guru 1994(3) S.C.C. 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 paragraph 9, the Supreme Court while deciding whether a person is necessary party or not in a suit for specific performance of a contract for sale made the following observations:
Since the respondent is not a party to the agreement of sale, it cannot be said that without presence the dispute as to specific performance cannot be determined. Therefore, he is not a necessary party.
7. Faced with this situation, Mr. Arun Palli, learned Counsel for the petitioners contended that in this very judgment, the Hon'ble Supreme Court had observed that in the present case, 3rd Party or strangers to contract are not necessary parties as the effective decree can be passed in their absence as they had not purchased the contracted property from the vendor after the contract was entered into. The contention of the learned Counsel for the petitioners was that in the present case the property has been purchased from the contracted party. However, this contention is misconceived as Jasbir Singh and Jagdeep Singh have not purchased the property after the contract was entered into rather the agreement to sell in their favour was allegedly executed prior to agreement of sale with the petitioners. This was the reason why an application was moved by them for being impleaded as a party to the present suit, which was opposed by the petitioner,
8. Mr. Harsh Aggarwal, learned Counsel for the respondents, on the other hand relied upon a judgment of the Hon'ble Supreme Court in the case of Shanmughasundaram and Ors. v. Diravia Nadar (D) by LRs. to content that the present application moved by the petitioners was barred by principle of res judicata as earlier application moved by Jasbir Singh and Jagdeep Singh was dismissed by the Court on the objection having been taken by the petitioners. Para 20 of the said judgment reads as under:
20. Unfortunately, for the appellant, the second ground of invalidity of the first award was not expressly challenged in the appeal preferred to the High Court against the order setting aside the said award. The High Court has confirmed judgment of the civil Court setting aside the first award and the same has attained finality. It would operate as res judicata between the parties. See the following observations in Satyadhan v. Smt. Deorajin Debi, :
The principle of res judicata is based on the need of giving finality to judicial decisions. What it says is that once a res judicata, it shall not be adjudged again Primarily, it applies as between past litigation. When a matter, whether on a question of fact or on a question of law, has been decided between the two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding to canvass the matter again. This principle of res judicata is embodied in relation to suits in Section 11 of the Code of Civil Procedure; but even where Section 11 does not apply, the principle of resjudicata has been applied by Courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher Court must in any future litigation proceed on the basis that the previous decision was correct.
The principle of resjudicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided in a matter one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings.
But an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken can be challenged in an appeal from the final decree or order.
In the subsequent proceedings initiated on the same arbitration agreement, therefore, it is not open to the appellant to contend that the first award was set aside only on ground of breach of natural justice and not on the ground of its invalidity that the sisters were not parties to the arbitration agreement and not bound either by agreement of sale or fixation of price at the instance of the brothers. See: Chhoba Lal v. Kunna Lal A.I.R. 1946 P.C. 72; Deep Narain Singh v. Mr. Dhaneshwari : Patanjal v. Rawalpindi Theaters Pvt. Ltd. ; Narsing Das v. Gogan Ram Lachmi Narain and Draupadbai v. Narayan Masanu Sutar .
9. Learned Counsel for the petitioners also placed reliance on a judgment of the Hon'ble Supreme Court in the case of Savitri Devi v. District Judge, Gorakhpur and Ors. to contend that subsequent purchasers are necessary parties to the suit. However, the said judgment has no application to the facts of the present case as in the said case the suit filed by the appellant against her sons for decree for maintenance and creation of charge over ancestral properties and in spite of injunction the property was sold to 3rd Party, the Hon'ble Supreme Court held that subsequent purchasers were necessary parties for deciding the question as to whether sale was committed in contempt and disregard to injunction and whether the purchasers are bona fide transferees so that multiplicity of suits could be avoided. However, as mentioned above, in the present case, the petitioners had opposed the application moved by Jasbir Singh and Jagdeep Singh for being impleaded as a party and their application having been dismissed, the subsequent application moved by the petitioners, therefore, would be hit by principle of res-judicata in view of the judgment of the Hon'ble Supreme Court in Shanmjughasundaram and others case (supra).
In view of the discussion made above, I find no merit in this revision petition, which is, accordingly, dismissed.