Madras High Court
Marikannu vs Alagammal(Died) on 18 October, 2019
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.10.2019
CORAM:
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
CRP(PD)(MD)NO.1260 OF 2012
and
M.P(MD)No.1 of 2012
Marikannu :Petitioner/Petitioner/proposed fourth
defendant
.vs.
1.Alagammal(died), :Respondent/Respondent/Plaintiff
2.G.Kalaimani
3.Chellakannu
4.Muthukannu :Respondents/Respondents/
Defendants 1 to 3
5.Alagurani :5th respondent
R5 is brought on record as LR of the deceased R1 vide
order of this Court dated 4.4.2017, made in C.M.P(MD)No.8739 to
8741 of 2016)
PRAYER: Civil Revision Petition filed under Article 226 of the
Constitution of India against the fair and decretal order dated
7.12.2011, made in I.A.No.665 of 2010 in O.S.No.211 of 2009, on
the file of Sub-Court, Pudukkottai.
For Petitioner :Mr.K.Baalasundhaream
For Respondent-1 :Died
For Respondent-2 :No appearance
For Respondents :Mr.R.P.Ramachanthiran
3 and 4
For Respondent-5 :Mr.D.Rameshkumar
http://www.judis.nic.in
2
ORDER
************* This Civil Revision Petition has been filed against the fair and decretal order passed by the Court below in dismissing the application filed by the Petitioner under Order 1 Rule 10(2) of Civil Procedure Code to implead herself as a defendant in the suit.
2.The first respondent has filed a suit for specific performance as against the respondents/defendants 2 to 4. When the said suit was pending, the Petitioner filed the above application under Order 1 Rule 10(2) of C.P.C to implead herself as a defendant on the ground that he is the real owner of the property and that respondents 2 to 4/defendants have absolutely no right, title or interest over the property. This application has been dismissed by the Court below on the ground that the inter-se dispute with regard to title between the defendants and the Petitioner cannot be decided in a suit for specific performance. The learned counsel for the Petitioner submitted that the defendants are colluding with the plaintiff and are attempting to deprive the rights of the Petitioner over the suit property. The learned counsel further submitted that the Petitioner is a proper party, since in his absence, a final conclusion cannot be arrived at by the Court below regarding the title over the property. The learned counsel, in order to http://www.judis.nic.in 3 substantiate his arguments, relied upon the judgement of the Honourable Supreme Court in the case of Robin Ramjibhai Patel .vs. Anandibai Rama @ Rajaram Pawar and others reported in 2016(6) CTC 765.
3.Per contra, the learned counsel appearing on behalf of the first respondent submitted that in a suit for specific performance, the inter-se dispute with regard to the title as between the defendants and the Petitioner cannot be decided. If at all, the Petitioner is aggrieved, he has to institute an independent suit against the defendants and he cannot work out his remedy in the suit filed by the first respondent.
4.This Court has carefully considered the submissions made on either side and perused the materials available on record.
5.Admittedly, the first respondent has filed a suit for specific performance by virtue of an agreement of sale executed by the defendants. The Petitioner claims that he is the lawful owner of the property and that the defendants did not have any title over the property and therefore, he has to be added as a party-defendant in the suit.
http://www.judis.nic.in 4
6.The Court below has dismissed the application mainly on the ground that the Petitioner is neither a necessary party nor a proper party and the inter-se dispute with regard to title as between the defendants and the Petitioner cannot be decided in a suit for specific performance filed by the first respondent/Plaintiff. The Court below has also relied upon the earlier judgments of this Court, in that regard.
7.It is necessary to refer to the judgment cited by the learned counsel for the Petitioner. From the facts of the case in the judgment, it is seen that the defendants have created third party rights through subsequent agreements and therefore, it became necessary for the plaintiff to make them as party, in order to avoid multiplicity of proceedings. The Honourable Supreme Court, after considering the entire law, has held as follows:
''8.As it appears from the aforesaid paragraph this Court accepted the status of dominus litus of the Plaintiff and proceeded to hold that if the plaintiff did not want to join the rival claimants as Defendant in the pending suit, the risk was totally of the plaintiff and he cannot be forced to join them as party- Defendant.
9.In the aforesaid context, this Court also http://www.judis.nic.in 5 considered the provisions of Order 1 Rule 10 C.P.C and in paragraph 7 it expressed its view that the relevant provisions show that the necessary parties in a suit for Specific Performance of a Contract for Sale are not only parties to the Contract or their Legal Representatives but also a person, who had purchased the contracted property from the vendor.
It was further elaborated that '' in equity as well as in law, the Contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the Contract, but a person, who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party.''
8.It is clear from the above judgment that the Court has taken note of the fact that the necessary parties in a suit for specific performance are not only parties to the contract or their legal representatives, but also a person who had purchased the property from the original vendor. This judgment will not in any way help the Petitioner, in this case. In the present case, the Petitioner wants the Court below to decide the inter-se title over the property as between the defendants and herself. This goes beyond the scope of the suit for specific performance. The http://www.judis.nic.in 6 judgment of the Honourable Supreme Court that has been cited by the learned counsel for the petitioner will have no application to the facts of the present case.
9.This Court does not find any illegality or infirmity in the order passed by the Court below and there is no ground to interfere with the same. It is left open to the Petitioner to independently work out his remedy as against the defendants in the suit, if the defendants are acting against his alleged interest or title over the property. Certainly, the Petitioner cannot work out his remedy in the present suit.
10.In the result, the Civil Revision Petition is dismissed and the Court below is directed to complete the proceedings in O.S.NO.211 of 2009 within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is dismissed.
18.10.2019 Index:Yes Internet:Yes vsn http://www.judis.nic.in 7 To The Sub-Judge, Pudukkottai.
http://www.judis.nic.in 8 N.ANAND VENKATESH, J.
vsn 0RDER MADE IN CRP(PD)(MD)NO.1260 OF 2012 and M.P(MD)No.1 of 2012 18.10.2019 http://www.judis.nic.in