Rajasthan High Court - Jodhpur
Rajendra Kumar vs Rameshchandra & Ors on 3 July, 2017
Equivalent citations: AIR 2017 RAJASTHAN 169, (2018) 1 RAJ LW 124 (2017) 4 WLC (RAJ) 614, (2017) 4 WLC (RAJ) 614
Author: Dinesh Mehta
Bench: Dinesh Mehta
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 12331 / 2016
1. Rajendra Kumar S/o Sohanlalji Balotiya, Aged About 37 Years,
Gangrar, Tehsil- Gangrar, District- Chittorgarh
2. Smt. Indira W/o Rajendra Kumarji Balotiya, Aged About 35
Years, Gangrar, Tehsil- Gangrar, District- Chittorgarh
----Petitioners
Versus
1. Rameshchandra S/o Ruplalji Kakhani, Mukam 102/05, Patel
Marg, Manasarovar, Jaipur (raj).
2. Shivlal S/o Ruplalji Kakhani, 23/27 Mansarovar, Jaipur-(raj.).
3. Chiranjeev Lal S/o Ruplalji, Mukam B-2/33 Rbi, Officer Colony,
Near Jeevraj Hospital, Ahmedabad (gujrat).
4. Gopal Lal S/o Ruplalji, Gangrar, Mukam 404 Ekta Tower, Osho
Pallav Complex, Vapi (gujrat)
5. Shantilal S/o Bhuralalji Kothari
6. Badri Lal S/o Motilalji Menariya
7. Shyam Lal S/o Motilalji Menariya
8. Jagdish S/o Motilalji Menariya
9. Dhapu W/o Shantilalji Kothari
10. Raju S/o Bheruji Khatik
11. Balu S/o Mohanlalji Jagotiya
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Sandeep Saruparia, Adv.
For Respondent(s) : Mr. Sanjeet Purhohit, Adv assisted by
Mr. Rajat Dave, Adv.
_____________________________________________________
(2 of 56)
JUSTICE DINESH MEHTA
CAV Judgment
REPORTABLE
03/07/2017
The question involved in the present writ petition is,
"whether in a suit for specific performance filed for the
enforcement of an agreement , the persons who had
purchased the property or had acquired right, interest and
title therein, prior to the disputed agreement, can be
impleaded as party Respondents?"
The facts in a nutshell, necessary for the determination
of the above question are that the petitioners-plaintiffs filed
a suit for specific performance for the enforcement of an
agreement to sell dated 16.08.2005, allegedly executed in
their favour wherein, the defendants No.1 to 4, being legal
representatives of Late Shri Roop Lal Kakhani were arrayed
as Defendants. It was asserted by the plaintiffs that at the
time of execution of the respective agreements to sell, the
possession of the plots/land, had been handed over by Shri
Roop Lal Kakhani (the vendor) for which a total consideration
of Rs.10,00,000/- was paid to him. Plaintiffs further stated
that before the said transaction could be completed and
registered sale deed could be executed, the vendor passed
away on 08.11.2005. It has been averred by the plaintiffs
that despite their persuasion, the defendants, being legal
representatives of the said vendor, refused to execute the
(3 of 56)
sale deed in their favour, even though the plaintiffs were
willing and ready to perform their part of the contract.
In a bid to make the factum of said agreement known
to general public, plaintiffs got a notice published in daily
newspaper on 17th December 2015, having its circulation in
the area informing that they had purchased the land
admeasuring 4.68 hectares by way of the agreement to sell
dated 16.08.2005 and have obtained possession thereof.
After the publication of the said notice, the plaintiffs instituted
a suit for specific performance of the said agreement for sale,
on 20.12.2015. The defendants No.1 to 4 filed a written
statement, inter alia refuting the factum of execution of the
agreement to sell dated 16.08.2005 and contended that the
agreement in question was forged, for which the defendants-
legal representatives of Roop Lal Kakhani, cannot be bound.
On the basis of the pleadings of rival parties, the Additional
District & Sessions Judge No.1, Chittorgarh (hereinafter
referred to as 'the Trial Court'), framed the following issues:-
rudh;kr fnukad 12-04-2006
1- D;k izfroknhx.k ds firk :iyky us o`)koLFkk ,oa
viuh ?kjsyq vko';drk gksus ls okni= ds en ua- 1 ls
15 fdrk vkjkth;kr jdck 4-68 gSDVj oknhx.k dks 10
yk[k :i;s esa foØ; djuk r; ikdj 10 yk[k :i;s
izkIr fd;s vkSj mDr vkjkth;kr dk vkf/kiR; oknhx.k
dks lqiqnZ fd;k rFkk foØ; vuqca/k fnukad 16-08-2005
fu"ikfnr fd;k \
-----------cftEes oknhx.k
(4 of 56)
2- D;k oknhx.k us mDr foØ; vuqca/k ds le; ;g 'krZ
r; dh gS fd tc Hkh oknhx.k foØ; i= dk iath;u
djkuk pkgsaxs foØ; i= dk iath;u djk fn;k tkosxk
& bldk D;k izHkko gS \
-----------cftEes oknhx.k
3- D;k izfroknhx.k la[;k 1 ls 4 e`rd :iykyth ds
fof/kd mÙkjkf/kdkjh gS vkSj :iyky }kjk fd;s x;s
foØ; vuqca/k dh ikyuk djus gsrq ck/; gS \ bldk
D;k izHkko gS \
-----------cftEes oknhx.k
4- D;k oknhx.k viuh vksj ls lafonk dh vuqikyuk ds
fy, rS;kj ,oa bPNqd jgsgS \
-----------cftEes oknhx.k
5- D;k okni= ds en ua- 1 esa of.kZr leLr vkjkth;kr
:iyky dh ugha gS vkSj vkjkth [kljk uEcj 2573 ls
2577 izfroknh la- 3 fpjUthoyky xksniq= xkso/kZuyky
dh gS \ bldk D;k izHkko gS \
-----------cftEes izfroknhx.k
6- D;k fookfnr vkjkth;kr dks ekfy;r 60 yk[k :i;s
gS vkSj bldk D;k izHkko gS \
-----------cftEes izfroknhx.k
7- D;k :iyky dh 'kkjhfjd ,oa ekufld v{kerk dk
vuqfpr ykHk mBkdj mudh vlgk; voLFkk esa
'kM+;a=iwoZd izfroknhx.k dh cgqewY; vkjkth;kr dks
csbZekuhiwoZd uktk;t ykHk izkIr djus dh xjt ls gM+i
djus ds fy, mDr foØ; bdjkj rS;kj fd;k x;k gS \
bldk D;k izHkko gS \
----------cftEes izfroknhx.k
8- D;k dfFkr bdjkj vu&jftLVMZ gksdj izksij LVkEi
ij ugha gS \ bldk D;k izHkko gS \
-----------cftEes izfroknhx.k
9- D;k e`rd :iyky dh iq=h;ka Jherh deyknsoh]
Jherh izHkk] o Jherh vatuknsoh vko';d i{kdkj gS \
-----------cftEes izfroknhx.k
10- vuqrks"k
(5 of 56)
O;k[;k dh xbZA**
During the pendency of the above suit, seven persons
(respondents No.5 to 11) filed a joint application dated
28.04.2016, under Order I Rule (10) (2) (ii) of the Code of
Civil Procedure, 1908 seeking their impleadment therein,
contending that said Shri Rooplal Kakhani, the owner of the
land had already sold/transferred various parcels of land, out
of the disputed land of Aarji No.2028/1, 2028/3, to them. It
is noteworthy that out of the seven applicants, except Shanti
Lal-the Respondent No.5, all the other applicants had
admittedly purchased and acquired interest in the disputed
land, by way of different agreements to sell ranging between
1996 and 2003. Shanti Lal-respondent No.5 herein, asserted
that a plot admeasuring 30ft X 45 ft, in Aarji No.2028/1 had
been purchased by him, vide a registered sale deed dated
16.10.1985 duly executed by said Shri Roop Lal Kakhani;
whereupon he has already raised construction. It is also
relevant to note that other applicants claiming procurement
of right and interest vide agreements to sell, asserted that
simultaneous with the entering into the agreement to sell,
they were handed over the possession of the respective land.
The applicants asserted that they have not only been
enjoying the possession of the plots, but have constructed
tenements thereupon, having all sorts of facilities, including
and electricity and water. The plaintiffs opposed the
(6 of 56)
impleadment application with vehemence and contended that
if the original owner Rooplal Kakhani had entered into any
agreement, as claimed by the applicants, they should have
insisted upon execution of the sale deed and/or they ought to
have taken appropriate remedies within the prescribed period
of limitation provided for enforcement of the agreement. It
was also contended by the plaintiffs that on publication of the
public notice on 20.12.2005, with respect to the contentious
land, it was required of the applicants to have taken their
remedies before the appropriate fora; and that the
application for impleadment filed on 28.04.2016 was highly
belated and thus barred by the law of limitation. Besides the
above objection, it was contended by the plaintiffs that the
applicants are strangers to the present suit for specific
performance of the agreement to sell dated 16.08.2005. It
was argued on behalf of plaintiffs that the applicants are
neither necessary, nor proper party for the disposal of the
suit.
The aforesaid application dated 28.04.2016, filed under
Order I Rule 10 of the Code of Civil Procedure came to be
allowed by the learned Trial Court, vide its order dated
28.09.2016, with the following observations:-
^^eSaus nksuksa i{kksa ds rdksZa ij xkSj fd;kA tgka rd
nLrkostkr dh frfFk dk laca/k gS] tckonkos ds iwoZ ds
gksuk vafdr frfFk;ksa ds vk/kkj ij izrhr gksrk gSA
lqlaxrrk o vlaxrrk ds rF; dks i{kdkjku }kjk
(7 of 56)
izLrqr lk{; ds mijkar r; fd;k tk ldrk gSA nsjh ds
rF; dks gtZ ds }kjk iwjk fd;k tk ldrk gSA
ifj.kke Lo:i izfroknhx.k dh vksj ls izLrqr izkFkZuk varxZr
vkns'k 8 fu;e 1¼3½ o /kkjk 151 lhihlh ,d gtkj :i;s gtsZ
¼mDr gtkZ jkf'k ,d gtkj :i;s dk fu;ekuqlkj fof/kd
lgk;rk en esa tek djk;k tkos½ ij Lohdkj fd;k tkdj
dfFkr nLrkostkr dks fjdkMZ ij izLrqr fd;s tkus dh vuqefr
nh tkrh gSA**
The present writ petition has been filed by the
petitioner-plaintiffs, oppugning the aforesaid order dated
28.09.2016, passed by the Trial Court, permitting
impleadment of respondent Nos. 5 to 11.
Mr. Sandeep Sarupariya, representing the petitioners, at
the outset submitted that the plaintiff is the 'dominus litis' or
the best judge of his case and is free to decide the persons,
against whom he wants to see or prosecute. He further
urged that the applicants having their separate contractual
rights, independent of the present dispute and can avail their
own remedies, if available, under the law, but in any event,
they cannot be permitted to indulge in the present lis, which
is essentially between the plaintiffs and the defendants for
enforcement of their rights, flowing from the agreement to
sell dated 16.08.2005.
Mr. Saruparia further contended that plaintiffs had got a
public notice published in the daily newspaper way back in
the month of December 2005, so as to inform the general
public about their right and interest, emanating from the
agreement dated 16.08.2005. As such, if the applicants were
to take their remedies or even participate in the present suit
(8 of 56)
proceedings, the same should have been initiated, at the
earliest point of time. In essence, his argument has been
that the application under consideration, filed by the
applicants on 28.04.2016, in the suit in question, which had
been filed way back on 20.12.2015, suffers from inordinate
delay and laches. Developing his argument further, he
submitted that in the period of eleven years, much water has
flown under the bridge and notwithstanding to his stand
that the applicants cannot be impleaded, he submitted that
the stage at which, the applicants have tried to intrude, was
not a stage, at which, the Trial Court should have permitted
their intervention. He urged that applicants' impleadment, at
the stage, when all the pleadings are complete, would bring
the suit proceedings back to square one, resulting in a
miscarriage of justice.
He invited attention of this Court towards the fact that
the applicants got up from their slumber after eleven years
and have not whispered even a single word, in their
application or in the arguments as to how they came to know
about the pendency of the suit in question. He added that
their conduct becomes more questionable as the defendants
themselves were unaware of the transfer of property to the
applicants by way of registered sale deed or otherwise. He
went on to argue that the defendants have brought these
applicants as stooges to stall or frustrate the suit
(9 of 56)
proceedings; and that the application under consideration
was not bonafide.
Learned counsel for the petitioner, while inviting
attention of the Court towards the issues framed by the Trial
Court, contended that a suit is required to be decided on the
basis of the pleadings of the rival parties and in light of the
issues framed; and that the applicants who have been
impleaded as a party by the Trial Court, cannot in any
manner, assist the Court in adjudicating any of the issues, as
they are alien to the bipartite agreement between the
plaintiffs and Late Shri Rooplal, the vendor.
Mr. Saruparia contended that if the applicants have any
right, title or interest in the property, they are supposed to
file objection under Order XXI Rule 97 to 101 of the Code of
Civil Procedure. According to him, that is the only course
available to the applicants and they can well lodge their
protest and protect their possession, in the execution
proceedings, filed by the plaintiffs, if the suit is ultimately
decreed against them.
Learned counsel for the petitioner relied upon the
judgment of Supreme Court in the matter of Kasturi Vs.
Iyyamperumal reported in (2005) 6 SCC 733 and judgment of
this Court in the matter of Deva Ram Vs. Additional District
Judge, Deedwana reported in AIR 2008 (Raj.) 174, to drive
(10 of 56)
home the point that the person having separate agreement to
sell or acquired interest in the property, cannot be permitted
to be impleaded as a party in a suit for specific performance,
filed by a buyer against the vendor.
Mr. Sanjeet Purohit assisted by Mr. Rajat Arora, voicing
the cause of the respondents firstly submitted that the
present writ petition filed under Articles 226/227 of the
Constitution of India, invoking supervisory jurisdiction of this
Court, is not maintainable, inasmuch as, the Trial Court in
valid exercise of its power and discretion has permitted
impleadment of respondents as defendants in the suit, which
cannot be interfered with, in supervisory jurisdiction of this
Court. He argued that the Trial Court has exercised the
jurisdiction and discretion vested in it and there is no error of
law, warranting interference by this Court.
In support of his argument he relied upon a judgment
dated 10.09.2015 of this Court rendered in S.B. Civil Writ
Petition No.3466/2013 Manohar Lal & Ors Vs. Bhupendra
Singh & Ors., wherein this Court deriving support from the
celebrated judgment of the Supreme Court in the matter of
Shalini Shetty & Anr. Vs. Rajendra Shanker Patil (2010) 8 SCC
329 in which it has been held as under:-
" 20. Rule 17 deals with application under
Articles 227 and 228. If a comparison is made
between Rule 1 of Chapter XVII and Rule 17 of
the same Chapter it will be clear that petitions
under Article 226 and those under Article
(11 of 56)
227 are treated differently. Both these Rules are
set out one after the other:
"1. (i) Applications for issue of writs, directions,
etc. under Article 226 of the Constitution Every
application for the issue of a direction, order or
writ under Article 226 of the Constitution shall, if
the matter in dispute is or has arisen
substantially outside Greater Bombay, be heard
and disposed of by a Division Bench to be
appointed by the Chief Justice. The application
shall set out therein the relief sought and the
grounds on which it is sought, it shall he
solemnly affirmed or supported by an affidavit In
every such application, the applicant shall state
whether he has made any other application to
the Supreme Court or the High Court in respect
of the same matter and how that application has
been disposed of.
(ii) Applicant to inform Court, if during pendency
of an application, the Supreme Court has been
approached.-If the applicant makes an
application to the Supreme Court in respect of
the same matter during the pendency of the
application in the High Court, he shall forthwith
bring this fact to the notice of the High Court
filing an affidavit in the case and shall furnish a
copy of such affidavit to the other side.
(iii) Hearing may be adjourned pending decision
by Supreme Court. The Court may adjourn the
hearing of the application made to it pending the
decision of the Supreme Court in the matter."
"17. (i) Applications under Article 227 and 228 An
application invoking the jurisdiction of the High
Court under Article 227 of the Constitution or
under Article 228 of the Constitution, shall be filed
on the Appellate Side of the High Court and be
heard and disposed of by a Division bench to be
appointed by the Chief Justice. The application
shall set out therein the relief sought and the
grounds on which it is sought. It shall be
solemnly affirmed or supported by an affidavit.
In every such application, the applicant shall
state whether he has made any other application
to the Supreme Court or the High Court in
respect of the same matter and how that
application is disposed of.
(ii) Application to inform Court, if, during
pendency of an application, the Supreme Court
is approached.-If the applicant makes an
application to the Supreme Court in respect of
the same matter during the pendency of the
(12 of 56)
application in the High Court, he shall forthwith
bring this fact to the notice of the High Court by
filing an affidavit in the case and shall furnish a
copy of such affidavit to the other side.
(iii) Hearing may be adjourned pending decision
by Supreme Court The Court may adjourn the
hearing of the application made to it pending the
decision of the Supreme Court in the matter.
(iv) Rule 2 to 16 to apply mutatis mutandis
Provision of Rules 2 to 16 above shall apply
mutatis mutandis to all such applications.
21. The distinction between the two proceedings
also came up for consideration before the
Bombay High Court and in the case of Jhaman
Karamsingh Dadlani vs. Ramanlal Maneklal Kantawala (AIR
1975 Bombay 182) the Bombay High Court held:
"2. This High Court since its establishment
in 1862 under the Letters Patent has been
exercising original as well as appellate
jurisdiction and its functioning is regulated by
'the Bombay High Court (Original Side) Rules,
1957' and 'Rules of the High Court of Judicature
at Bombay, Appellate Side, 1960' (hereinafter
referred to respectively as 'O. S. Rules' and 'A.
S. Rules'). Rules also provide for disposal of
petitions under Articles 226 and 227 of the
Constitution. Supervisory jurisdiction of the High
Court under Article 227 of the Constitution is
exclusively vested in a Bench on the Appellate
Side and jurisdiction of either of the two wings
of this Court under Article 226, however, depends
upon whether "the matter in dispute" arises
substantially in Greater Bombay or beyond it,
the same being exercisable by the original Side
in the former case and by the Appellate Side in
the latter case. This is not made dependent on
the matter being in fact of an original or
appellate nature. The contention of the learned
Advocate General and Mr. Desai is that the
matter in dispute, on averments in the petition,
must be said to have arisen at any rate,
substantially within the limits of Greater Bombay
and the petitioner cannot be permitted to avoid
the impact of these Rules and choose his own
forum by merely quoting Article 227 of the title
and prayer clause of the petition, when it is not
attracted or by merely making a pretence of the
dispute having arisen beyond Greater Bombay
by referring to non- existing facts to attract the
Appellate Side jurisdiction under Article 226"
(13 of 56)
22. In paragraph 4 of Jhaman (supra), the High
Court further distinguished the nature of
proceeding under Article 226 of the Constitution to
which, depending upon the situs of the cause of
action, Rule 623 of Bombay High Court original
Side Rules will apply. The said rule is set out
below:
"623. Every application for the issue of a
direction, order or writ under Article 226 of the
Constitution other than an application for a writ
of Habeas Corpus shall, if the matter in dispute
is or has arisen substantially within Greater
Bombay, be heard and disposed of by such one
of the Judges sitting on the Original Side or any
specially constituted Bench as the Chief Justice
may appoint. The application shall be by petition
setting out therein the relief sought and the
grounds on which it is sought. The petition shall
be supported by an affidavit. In every such
petition the petitioner shall state whether he has
made any other application to the Supreme
Court or the High Court in respect of the same
matter and how that application has been
disposed of. The petitioner shall move for a Rule
Nisi in open Court.
If the Petitioner makes an application to the
Supreme Court in respect of the same matter
during the pendency of the petition in the High
Court, he shall forthwith bring this fact to the
notice of the High Court by filing an affidavit in
the case and shall furnish a copy of such
affidavit to the other side.
The Court may adjourn the hearing of the
application made to it pending the decision of
the Supreme Court in the matter."
Laying great emphasis on the aforesaid judgment of
Manohar Lal; wherein the Kasturi's judgment of the Supreme
Court and judgment of this Court in Deva Ram's case
(Supra), relied upon by Mr. Saruparia, have been referred to,
discussed and dealt with; Mr. Sanjeet Purohit contended that
no interference is permissible in the present case.
Notwithstanding his stand that the writ petition is not
(14 of 56)
maintainable, he zealously joined the debate on the question
involved in the case and contended that in the basic
judgment of Kasturi (Supra) relied upon by the petitioners,
the persons seeking impleadment were completely strangers,
whereas in the instant facts, the respondents-applicants
cannot be held to be strangers to the lis.
Mr. Sanjeet Purohit relied upon the Supreme Court's
judgment in the matter of Thomson Press (India) Private Ltd.
Vs. Nanak Builders & Investors P. Ltd. & Ors. (2013) 5 SCC
397 and pointed out that in para No.24 of the said judgment,
the earlier judgment of Kasturi (Supra) has been dealt with,
discussed and explained by the Supreme Court and submitted
that Kasturi's case was a case of specific performance of
contract for sale, wherein an impleadment application came
to be filed for contesting the suit as a party-defendant, by
the petitioners, claiming their rights not through or under the
vendor, but adverse to the title of the vendor; for which the
Supreme Court denied the impleadment of the applicants.
Counsel for the respondents cited a judgment of the
Apex Court rendered in the case of Sumiti Bai & Ors. State of
Karnataka reported in (2007) 10 SCC 82, wherein an
application seeking impleadment, filed by a co-owner had
been allowed by the Supreme Court, while setting aside the
judgments of the Trial Court and the High Court. Reading
para Nos. 9 and 14 of the said judgment, Mr. Purohit
(15 of 56)
submitted that if the arguments of Mr. Saruparia were
accepted, the applicants will have to wait until a decree is
finally passed against the defendants, left with the only
option of filing a suit for cancellation of the decree, on the
footing that the plaintiffs-petitioners did not have a title of
the property in dispute.
Dealing with the decision of this Court rendered in Deva
Ram's case (Supra), he submitted that Deva Ram's case has
been decided in ignorance of the judgment of the Supreme
Court rendered in Sumiti Bai and Ors. Vs. State of Karnataka
reported in (2007) 10 SCC 82, wherein the impleadment
application of co-owners was allowed by the Supreme Court.
In the pursuit of his efforts of embedding the order
impugned, learned counsel, relied upon judgment of High
Court of Karnataka reported in 2016 (2) CCC 152, and gave a
different facet to his argument, showing his concern and
apprehension that if the applicants' impleadment application
is rejected, they would lose their rights even as objectors, as
has been held by the Karnataka High Court, in Paragraph
Nos.13 & 14 reproduced herein below:-
"13. The learned counsel for the
petitioner placed reliance on the decision in
Silverline Forum Pvt. Ltd., v., Rajiv Trust &
another, reported in AIR 1998 SC 1754 to the
effect that resistance or obstructions made
even by a third party to the execution of
decree can be gone into under O.21 Rule 97,
Rules 97 to 106 in Order 21 are subsumed
under the caption "resistance to delivery of
(16 of 56)
possession to decree-holder or purchaser." A
third party to the decree who offers resistance
would thus fall within the ambit of R.101 if an
adjudication is warranted as a consequence of
the resistance or obstruction made by him to
the execution of the decree. The court is not
obliged to determine a question merely
because the resistor raised it. The words "all
questions arising between the parties to a
proceeding on an application under R.97"
would envelop only such questions as would
legally arise for determination between those
parties.
14. The learned counsel for the
respondents placed reliance on decision in
Ashan Devi & Anr. Vs., Phulwasi Devi & Ors,
(2003 (9) SCALE 783 and in Sri
Venkatarayappa vs., Sri G Muniyappa & others,
reported in ILR 2008 KAR 3553. The facts of
the said cases are different from the
facts involved in the present case. In those
two decisions, the court was concerned with
threat of dispossession of the obstructers and
knowledge of the decree holder about title of
the obstructers and not impleading them in
the suit and obtaining a decree. But here is a
case where the obstructers made impleading
applications which came to be dismissed by
the trial court and the impleading applicants
did not assail that order and accepted with the
same. Further the obstructers who are
claiming title based on the individual title
deeds and as the petitioner claims that the
properties claimed by the obstructers are
different and distinct, they are entitled to
agitate their rights in respect of their
respective sites. Some of the obstructers'
rights are resolved in the individual suits filed
by them and therefore one more resolution of
their dispute in the present execution does not
arise."
Mr. Purohit also cited the judgment of Madras High
Court, reported in AIR 2014 Madras 15, to buttress his
submission that a person having prior agreement to sell has a
(17 of 56)
right to be impleaded in a suit for specific performance of the
same property.
Concluding his arguments Mr. Sanjeet Purohit submitted
that the law is now well settled, vide judgment of Supreme
Court in Thomson Press's case and other authoritative
pronouncements that a subsequent purchaser in a suit for
specific performance is required to be impleaded as a party.
He added with bewilderment and surprise that if the persons
having purchased or acquired right, interest and title in the
property, after the contentious agreement to sell, has the
right to be impleaded as a party, then how the respondents
having purchased the property prior to the execution of the
disputed agreement can be denied such right? Mr. Purohit
emphatically asserted that the position of prior purchasers is
on much better footing or at a higher pedestal.
Joining the debate in rejoinder, Mr. Saruparia contended
that as far as the persons acquiring interest in the property,
pendente lite, or a subsequent purchaser is concerned, they
are precluded to raise objection, as prohibited under order
XXI Rule 102 of the Code of Civil Procedure. That is why the
Courts have adopted a lenient view, so that such persons
may not be rendered remediless. However, when it comes to
the persons, having acquired right, interest and title in the
property, prior to the execution of agreement to sell for
which, the suit proceedings relate, they have been given a
(18 of 56)
right to obstruct, under Order XXI Rule 97 of the Code of Civil
Procedure and that is why, they cannot be permitted to
plunge in the suit proceedings.
Mr. Saruparia contended that if the order impugned is
not interferred with and the contesting respondents are
permitted to remain on the files of the Trial Court, the suit in
question would turn into a suit for title from a simple suit of
specific performance.
Before dealing with the arguments advanced at the bar
by the rival counsels, it would be profitable to sail through
various judgments of the Supreme Court, appertain to the
issue, some of which have already been relied upon by the
rival counsels, as noted above.
To churn out the underlying principle and with a view to
find answer to the question involved in the present case, the
pertinent judgments are being analysed, while their relevant
parts and excerpts are italicised.
1. Kasturi v Iyyamperumal and Ors (2005) 6 SCC 733
"........6. Let us therefore confine ourselves to
the provision of Order 1 Rule 10 sub-rule (2) of
CPC which has already been quoted
hereinabove. From a bare perusal of sub-rule
(2) of Order 1 Rule 10 of the CPC, we find that
power has been conferred on the Court to
strike out the name of any party improperly
joined whether as plaintiff or defendant and
also when the name of any person ought to
have been joined as plaintiff or defendant or in
a case where a person 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
(19 of 56)
involved in the suit. In the present case, since
we are not concerned with striking out the
name of any plaintiff or defendant who has
been improperly joined in the suit, we will
therefore only consider whether the second
part of sub-rule(2) Order 1 Rule 10 of the CPC
empowers the Court to add a person who
ought to have been joined 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.
7. In our view, a bare reading of this provision
namely, second part of Order 1 Rule 10 sub-
rule (2) of the CPC would clearly show that the
necessary parties in a suit for specific
performance of a contract for sale are the
parties to the contract or if they are dead their
legal representatives as also a person who had
purchased the contracted property from the
vendor. 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 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.
Tests are - (1) there must be a right to some
relief against such party in respect of the
controversies involved in the proceedings
(2) no effective decree can be passed in the
absence of such party.
8. We may look to this problem from another
angle.
Section 19 of the Specific Relief Act provides
relief against parties and persons claiming
under them by subsequent title. Except as
otherwise provided by Chapter II, specific
performance of a contract may be enforced
against :-
(a) either party thereto;
(b) any other person claiming under him by a
title arising subsequently to the contract,
except a transferee for value who has paid his
money in good faith and without notice of the
original contract;
(c) any person claiming under a title which,
though prior to the contract and known to the
plaintiff, might have been displaced by the
defendant;
(d) when a company has entered into a
contract and subsequently becomes
amalgamated with another company, the new
company which arises out of the
amalgamation;
(20 of 56)
(e) when the promoters of a company have,
before its incorporation, entered into a contract
for the purpose of the company and such
contract is warranted by the terms of the
incorporation, the company;
Provided that the company has accepted the
contract and communicated such acceptance to
the other party to the contract.
14. 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 and 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 vendor 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 Vs. Shivnath Mishra Alias
Gadasa Guru, reported in 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 paragraph 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:
"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]......"
In this case, the Appellant filed a suit for specific
performance against Respondent No. 2 and 3 (vendors) regarding
the enforcement of an agreement to sell entered into between
them. The Respondent No. 1 (Iyyamperumal) and Respondent Nos
4 to 11 sought their impleadment as necessary parties by filing
application under Order I Rule 10 claiming title and possession of
the contracted property.
With a view to complete the factual narration and
determining the position and status of the parties involved, it
(21 of 56)
would be appropriate to go through the High Court judgment,
which has been reported in 2003 (2) Madras Law Weekly. After
reading the same, it transpires that Respondent Nos. 4 to 11 were
legal heirs of the elder brother of Respondent No. 1 namely
Chockanathan.
The Supreme Court, after a perusal of the relevant
provisions of Specific Relief Act and the Code of Civil Procedure
ruled in favour of the Appellant and held that Respondents 1 & 4
to 11 are not necessary parties, reiterating the twin tests
regarding impleadment of necessary party, namely; right to some
relief against such party in relation to the controversies involved in
the proceedings and the inability to pass a decree in the absence
of such party.
2. Sumitibai and Ors v Paras Finance Co. and Ors. 2007
10 SCC 82
"........9. Learned counsel for the respondent
relied on a three-Judge Bench decision of this
Court in Kasturi vs. Iyyamperumal and others
- (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. 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
(22 of 56)
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.
14.In view of the aforesaid decisions we
are of the opinion that Kasturis case (supra)
is 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.........."
In this case, a suit was filed by the respondent
(purchaser) against Kapoor Chand (vendor) for specific
performance of a contract for sale. During the pendency of
the suit, Kapoor Chand died and his wife, sons etc.(the
Appellants) applied to be brought on record as legal
representatives. After they were impleaded, they filed an
application under Order XXII Rule 4(2) read with Order I Rule
10 Code of Civil Procedure praying inter alia, that they should
be permitted to file additional written statement and also be
allowed to take such pleas which are available to them.
The court held that in the registered sale deed dated
12.8.1960, the property in dispute was mentioned and the
sale was shown in favour of Kapoor Chand and his sons,
Narainlal, Devilal and Pukhraj. Hence, the registered sale
deed itself showed that the purchaser was not Kapoor Chand
(23 of 56)
alone, but also his sons, being co-owners. Though the court
didn't express any final opinion on the question whether they
are co-owners or not and left it to be decided in the suit, yet
it held that the legal representatives of late Kapoor Chand
have a right to take this defence, by way of filing an
additional written statement and adduce evidence in the suit.
The Supreme Court discussed the Kasturi case and
distinguished, rather explained it and held in Para 14 that it
cannot be laid down as an absolute proposition that whenever
a suit for specific performance is filed, third party can never
be impleaded as a party.
3. Vidur Impex and Traders Pvt. Ltd. and Ors. vs. Tosh
Apartments Pvt. Ltd. and Ors (2012 ) 8 SCC 384
"......... 30.In Anil Kumar Singh v.
Shivnath Mishra (1995) 3 SCC 147, this Court
interpreted Order 1 Rule 10(2) in the following
manner:
"By operation of the above-quoted rule though
the court may have power to strike out the
name of a party improperly joined or add a
party either on application or without
application of either party, but the condition
precedent is that the court must be satisfied
that the presence of the party to be added,
would be necessary in order to enable the court
to effectually and completely adjudicate upon
and settle all questions involved in the suit. To
bring a person as party- defendant is not a
substantive right but one of procedure and the
court has discretion in its proper exercise. The
object of the rule is to bring on record all the
persons who are parties to the dispute relating
to the subject-matter so that the dispute may
be determined in their presence at the same
time without any protraction, inconvenience
and to avoid multiplicity of proceedings."
32. In Kasturi v. Iyyamperumal (supra), this
Court considered the question whether a
person who sets up independent title and
claims possession of the suit property is
(24 of 56)
entitled to be impleaded as party to a suit for
specific performance of contract entered into
between the plaintiff and the defendant. In that
case, the trial Court allowed the application for
impleadment on the ground that respondent
Nos.1 and 4 to 11 were claiming title and
possession of the contracted property and,
therefore, they will be deemed to have direct
interest in the subject matter of the suit. The
High Court dismissed the revision filed by the
appellant and confirmed the order of the trial
Court.
33.While allowing the appeal and setting aside
the orders of the trial Court and the High
Court, this Court referred to Order 1 Rule 10(2)
CPC and observed:
7."In our view, a bare reading of this
provision, namely, second part of Order 1 Rule
10 sub-rule (2) CPC would clearly show that
the necessary parties in a suit for specific
performance of a contract for sale are the
parties to the contract or if they are dead, their
legal representatives as also a person who had
purchased the contracted property from the
vendor. 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. Tests are -- (1) there must be a right to
some relief against such party in respect of the
controversies involved in the proceedings; (2)
no effective decree can be passed in the
absence of such party.
11. 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 for specific performance of
the contract for sale. Thus, the question is to
be decided keeping in mind the scope of 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,
(25 of 56)
the scope of the suit for 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 Cottenham in Tasker v. Small made
the following observations:
"It is not disputed that, generally, to a
bill for a specific performance of a contract of
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 at
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 a proceeding to enforce the
execution of it as they are to a proceeding to
recover damages for the breach of it."
12. The aforesaid decision in Tasker was noted
with approval in De Hoghton v. Mone. Turner,
L.J. observed:
"Here again his case is met by Tasker 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." (emphasis
supplied).
44. The ratio of the judgment in Kasturi
v. Iyyamperumal (supra), on which heavy
reliance has been placed by the learned senior
counsel for the appellants, does not help his
clients. In the present case, the agreements for
sale and the sale deeds were executed by
respondent No.2 in favour of the appellants in
a clandestine manner and in violation of the
injunction granted by the High Court.
Therefore, it cannot be said that any valid title
(26 of 56)
or interest has been acquired by the appellants
in the suit property and the ratio of the
judgment in Surjit Singh v. Harbans
Singh (supra) would squarely apply to the
appellants' case because they are claiming
right on the basis of transactions made in
defiance of the restraint order passed by the
High Court. The suppression of material facts
by Bhagwati Developers and the appellants
from the Calcutta High Court, which was
persuaded to pass orders in their favour, takes
the appellants out of the category of bona fide
purchaser. Therefore, their presence is neither
required to decide the controversy involved in
the suit filed by respondent No.1 nor required
to pass an effective decree......"
In this case the Respondent No. 1 (purchaser) had filed
a suit for specific performance of agreement dated 13.9.1988
executed by Respondent No. 2, representatives of Pradeep
Kumar Khanna (vendor). Thereafter, Respondent No. 2
entered into a clandestine transaction, with the Appellants for
sale of the suit property and executed some agreements for
sale, which were followed by registered sale deeds and the
Appellants executed agreement for sale in favour of Bhagwati
Developers. These transactions were found to be in clear
violation of the order of injunction passed by the Delhi High
Court, which had restrained Respondent No. 2 from alienating
the suit property or creating third party interest. The
Appellants and Bhagwati Developers sought impleadment
under Order I Rule 10 in the aforementioned suit.
Hon'ble Supreme Court held that since the transactions
did not confer any right upon the Appellants or Bhagwati
Developers, their presence is not at all necessary for
(27 of 56)
adjudication of the question whether Respondent Nos. 1 and
2 had entered into a binding agreement and whether
Respondent No. 1 is entitled to a decree of specific
performance of the said agreement.
4. Thomson Press (India) Ltd. vs. Nanak Builders and
Investors P. Ltd. and Ors. (2013 ) 5 SCC 397
".....24. In Kasturi's case (supra) a three
Judges' Bench of this Court said that in a suit
for specific performance of contract for sale an
impleadment petition was filed for addition as
party defendant on the ground that the
petitioners were claiming not under the vendor
but adverse to the title of the vendor. In other
words, on the basis of independent title in the
suit property the petitioner sought to be added
as a necessary party in the suit. Rejecting the
petition this Court held as under :-
11 "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 contract for sale. For
deciding the question who is a proper party in
the 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 for specific performance of
the contract for sale. Thus, the question is to
be decided keeping in mind the scope of 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 for 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 Cottenham in Tasker v. Small 1834
(40) English Report 848 made the following
observations :
"It is not disputed that, generally, to a bill for
specific performance of a contract for sale, the
parties to the contract only are the proper
parties; and, when the ground of this
jurisdiction of Courts of Equity in suits of that
kind is considered it could not properly be
(28 of 56)
otherwise. The Court assumes jurisdiction in
such case, 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 a
proceeding to enforce the execution of it as
they are to a proceeding to recover damages
for the breach of it."
14. "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 and 4 to 11 are necessary parties or not.
In our opinion, the respondent Nos. 1 and 4 to
11 are not necessary parties effective decree
could be passed in their absence as they had
not purchased the contracted property from the
vendor 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, 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 paragraph 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:
9. "Since the respondent is not a party to the
agreement for 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."
25. In the case of Vidhur Impex (supra), the
Supreme Court again had the opportunity to
consider all the earlier judgments. The fact of
the case was that a suit for specific
performance of agreement was filed. The
appellants and Bhagwati Developers though
totally strangers to the agreement, came into
picture only when all the respondents entered
into a clandestine transaction with the
(29 of 56)
appellants for sale of the property and
executed an agreement of sale which was
followed by sale deed. Taking note all the
earlier decisions, the Court laid down the broad
principles governing the disposal of application
for impleadment. Paragraph 41 is worth to be
quoted hereinbelow:
41. Though there is apparent conflict in the
observations made in some of the
aforementioned judgments, the broad
principles which should govern disposal of an
application for impleadment are:
41.1. The Court can, at any stage of the
proceedings, either on an application made by
the parties or otherwise, direct impleadment of
any person as party, who ought to have been
joined as Plaintiff or Defendant or whose
presence before the Court is necessary for
effective and complete adjudication of the
issues involved in the Suit.
41.2. A necessary party is the person who
ought to be joined as party to the Suit and in
whose absence an effective decree cannot be
passed by the Court.
41.3. A proper party is a person whose
presence would enable the Court to completely,
effectively and properly adjudicate upon all
matters and issues, though he may not be a
person in favour of or against whom a decree is
to be made.
41.4. If a person is not found to be a proper or
necessary party, the Court does not have the
jurisdiction to order his impleadment against
the wishes of the Plaintiff.
41.5. In a Suit for specific performance, the
Court can order impleadment of a purchaser
whose conduct is above board, and who files
Application for being joined as party within
reasonable time of his acquiring knowledge
about the pending litigation.
41.6 However, if the applicant is guilty of
contumacious conduct or is beneficiary of a
clandestine transaction or a transaction made
by the owner of the suit property in violation of
the restraint order passed by the Court or the
Application is unduly delayed then the Court
will be fully justified in declining the prayer for
impleadment."
58. With the above additions, I agree with the
order proposed by my Esteemed Brother, M.Y.
Eqbal, J. that this appeal be allowed and the
appellant added as party defendant to the suit
in question......"
(30 of 56)
Plaintiff -Respondent No. 1 (purchaser) filed a suit for
specific performance on 01.11.1991 against the Defendants
Sawhneys (Vendors) for the specific performance of the
agreements dated 29.05.1986. Before the institution of the
suit for specific performance, when the Plaintiff came to
know about the activities of the Sawhneys' to deal with the
property, a public notice was published at the instance of the
plaintiff in a newspaper. Even after the institution of the suit,
the counsel who appeared for the Defendants-Sawhneys'
gave an undertaking not to transfer and alienate the suit
property. In between 31.01.2001 and 03.04.2001 five sale
deeds were executed by Defendants-Sawhneys' in favour of
the present Appellant herein M/s Thomson Press India
Limited. On the basis of those sale deeds, the Appellant
moved an application under Order I Rule 10 Code of Civil
Procedure for impleadment as Defendants in a suit for
specific performance filed by Respondent No. 1. The Hon'ble
Supreme Court held that there can be no hesitation in holding
that the Appellant entered into a clandestine transaction with
the Defendants-Sawhneys' and got the property transferred
in their favour. Hence the Appellant - M/s Thomson Press
cannot be held to be a bonafide purchaser, without notice.
Hon'ble Supreme Court noticed that the High Court had not
gone into the question as to whether, a person having
purchased the suit property in violation of the order of
(31 of 56)
injunction, having sufficient notice and knowledge of the
agreement, needs to be added as party for passing an
effective decree in the suit. Having regard to the facts and
circumstances of the case and also to meet the ends of
justice, the Court held that the Appellant be added as party-
Defendant in the suit.
5. Amit Kumar Shaw and Anr. vs. Farida Khatoon and Anr
(2005) 11 SCC 403
"........8. On a combined reading of Order
1 Rule 10, Order XXII Rule 10 of the Code of
Civil Procedure and Section 52 of the Transfer
of Property Act, can an application for
substitution by a subsequent transferee be
rejected and the subsequent purchaser be
non-suited altogether is the prime question for
consideration in these appeals.
9. The object of Order 1 Rule 10 is to
discourage contests on technical pleas, and to
save honest and bona fide claimants from
being non-suited. The power to strike out or
add parties can be exercised by the Court at
any stage of the proceedings. Under this Rule,
a person may be added as a party to a suit in
the following two cases:
(1) When he ought to have been joined as
plaintiff or defendant, and is not joined so, or
(2) When, without his presence, the questions
in the suit cannot be completely decided.
14. An alienee pendente lite is bound by the
final decree that may be passed in the suit.
Such an alienee can be brought on record both
under this rule as also under O 1 Rule 10.
Since under the doctrine of lis pendens a
decree passed in the suit during the pendency
of which a transfer is made binds the
transferee, his application to be brought on
record should ordinarily be allowed.
16. The doctrine of lis pendens applies only
where the lis is pending before a Court.
Further pending the suit, the transferee is not
entitled as of right to be made a party to the
suit, though the Court has a discretion to
make him a party. But the transferee
pendente lite can be added as a proper party if
(32 of 56)
his interest in the subject matter of the suit is
substantial and not just peripheral. A
transferee pendente lite to the extent he has
acquired interest from the defendant is vitally
interested in the litigation, whether the
transfer is of the entire interest of the
defendant; the latter having no more interest
in the property may not properly defend the
suit. He may collude with the plaintiff. Hence,
though the plaintiff is under no obligation to
make a lis pendens transferee a party; under
Order XXII Rule 10 an alienee pendente lite
may be joined as party. As already noticed,
the Court has discretion in the matter which
must be judicially exercised and an alienee
would ordinarily be joined as a party to enable
him to protect his interests. The Court has
held that a transferee pendente lite of an
interest in immovable property is a
representative-in-interest of the party from
whom he has acquired that interest. He is
entitled to be impleaded in the suit or other
proceedings where the transferee pendente
lite is made a party to the litigation; he is
entitled to be heard in the matter on the
merits of the case........."
In this case, the property in question originally
belonged to Khetra Mohan Das, which later on came in the
hands of Birendra Nath Dey and Smt. Kalyani Dey by way of
lease and transfer. There were troubles in between the
original owner and Birendra Nath Dey and Smt. Kalyani Dey,
as a result of which, the suit in question was filed. One Fakir
Mohammad claimed his right, title and interest in respect of
the contentious property by way of adverse possession.
Ultimately, both the appeals were allowed by a common
judgment and decree and the suit was remanded back for
rehearing before the trial Court. Being aggrieved by the said
decree, Fakir Mohammad filed an appeal, challenging the said
judgment of the first appellate Court.
(33 of 56)
Later, by a deed of assignment, Birendra Nath Dey
assigned his leasehold interest in the property, in favour of
the appellants. Similarly, by a sale deed on 15.12.1995,
Kalyani Dey sold and transferred her property in favour of the
appellants. The appellants, thus filed these applications for
recording their names in the Municipal records, and for the
first time, came to know about the pendency of the above
two appeals. The appellants, losing no time, moved
applications praying for adding them as a party in connection
with those two appeals.
The Court held that the presence of the appellants are
absolutely essential in order to decide the appeals on merits.
The Court observed that doctrine of lis pendens applies only
where the lis is pending before a Court. Further pending the
suit, the transferee is not entitled as of right to be made a
party to the suit, though the Court has discretion to make
him a party. But the transferee pendente lite can be added as
a proper party, if his interest in the subject matter of the suit
is substantial and not just peripheral.
Permitting the impleadment, the Supreme Court ruled
that a transferree pendente lite, to the extent he has
acquired interest from the defendant is vitally interested in
the litigation. When the transfer is of the entire rights of the
of the defendant, the latter having no more interest in the
property, may not properly defend the suit.
(34 of 56)
6. Baluram v P. Chellathangam AIR 2015 SC 1264
".......12. After due consideration of the
rival submissions, we are of the view that the
High Court erred in interfering with the order of
the trial Court impleading the appellant as a
party defendant. Admittedly, the appellant is a
beneficiary of the Trust and under the
provisions of the Trusts Act, the Trustee has to
act reasonably in exercise of his right of
alienation under the terms of the trust deed.
Appellant cannot thus be treated as a stranger.
No doubt, it may be permissible for the
appellant to file a separate suit, as suggested
by Respondent No.1, but the beneficiary could
certainly be held to be a proper party. There is
no valid reason to decline his prayer to be
impleaded as a party to avoid multiplicity of
proceedings. Order I Rule 10(2), CPC enables,
the Court to add a necessary or proper party so
as to "effectually and completely adjudicate
upon and settle all the questions involved in
the suit".
14. In the present case, the appellant could
not be held to be a stranger being beneficiary
of the Trust property. The trial Court was
justified in impleading him as a party. The High
Court erred in interfering with the order of the
trial Court.
15. Accordingly, we allow this appeal, set
aside the impugned order of the High Court
and restore that of the trial Court dated 10th
August, 2010, impleading the appellant as a
party defendant in the suit. There will be no
order as to costs......"
In this case, Respondent No. 1 (the purchaser) filed a
suit for specific performance against K. Jagathees and R.
Subbaram Babu @ Subbaram (Respondent Nos. 2 and 3
respectively and the vendors). Respondent Nos. 2 & 3, who
were acting as trustees of a trust, of which Baluram (the
Appellant) was a beneficiary, entered into an agreement with
Respondent No. 1 to sell the suit property in his favour but
later refused to execute the sale deed unless the beneficiaries
of the Trust agreed to it. The Appellant filed an application
(35 of 56)
under Order I Rule 10 of the Code of Civil Procedure seeking
impleadment in the suit for specific performance between
Respondent No.1 and Respondent Nos. 2 & 3. The Supreme
Court held that under the provisions of the Trusts Act, the
Trustee has to act reasonably in exercise of his right of
alienation under the terms of the trust deed, the appellant
cannot thus be treated as a stranger; it may be permissible
for the Appellant to file a separate suit, as suggested by
Respondent No. 1, but the beneficiary could certainly be held
to be a proper party. Supreme Court concluded that there is
no valid reason to decline his prayer to be impleaded as a
party, and the same would avoid multiplicity of proceedings
and that Order I Rule 10(ii) of the Code of Civil Procedure
enables the Court to add a necessary or proper party so as to
"effectually and completely adjudicate upon and settle all the
questions involved in the suit".
7. Shaukat Ali v Bhag Chand and Ors. 2016 (4) CDR 1899
(Raj)
".........12. The plea raised by counsel for
the petitioner regarding non-issuance of notice
may have substance, however, in view of the
fact that the order dated 19.12.2013 passed
by a coordinate Bench of this Court (supra)
has become final, there is very little that the
petitioner could have done even if the notice
was issued to him as essentially there is no
dispute in the facts that the part of the suit
property was purchased by the petitioner after
the date of agreement to sale, which is the
subject matter of the suit in question and,
therefore, the petitioner would fall within the
category of a subsequent purchaser and would
definitely be affected by the present suit in
(36 of 56)
view of the provisions of Section 19(b) of the
Specific Relief Act, 1963.
13. In unusual circumstances of the case
as noticed herein before, no interference
can be made in the order impugned and,
therefore, the writ petition filed by the
petitioner has no substance, the same is,
therefore, dismissed.
In this case, the respondent No. 1-plaintiff (purchaser)
filed a suit for specific performance of contract dated
07.04.2004. In the written statement of the defendant, it was
indicated that the suit property was already transferred
before the suit was filed. The plaintiff filed an application
under Order I, Rule 10 CPC seeking to implead the
subsequent purchasers as party-defendants in the trial court,
which was accepted. The petitioner (subsequent purchaser)
however contended that the trial court committed an error in
accepting the application filed by the plaintiff. It was
submitted that no notice of the application under Order I,
Rule 10 CPC was issued to the petitioner either at the earlier
stage, when the application was dismissed or after the matter
was remanded by the High Court and the application has
been accepted by the Trial Court by the order impugned. It
was emphasized that the application has been accepted,
without providing any opportunity of hearing and, therefore,
the order impugned deserves to be quashed and set aside.
The Court dismissed the petition by holding that in view
of the fact that the order dated 19.12.2013 passed by a
Coordinate Bench of this Court (Supra) has become final,
(37 of 56)
there is very little that the petitioner could have done, even if
the notice was issued to him as essentially there is no dispute
in the facts that the part of the suit property was purchased
by the petitioner after the date of agreement to sale, which is
the subject matter of the suit in question and, therefore, the
petitioner would fall within the category of a subsequent
purchaser and would definitely be affected by the present suit
in view of the provisions of Section 19(b) of the Specific Relief
Act, 1963.
8. S.A. Babu Reddy v Munireddy and Ors. 2016 (1) AKR
147
"........12. The court below while passing the
impugned order has failed to note that on the
same set of facts, the obstructors moved the
impleading application and failed in their
attempt. They have accepted the said order
and therefore they are not entitled to obstruct
the decree in the execution petition and seek
for rejection of the execution petition.
13. The learned counsel for the petitioner
placed reliance on the decision in Silverline
Forum Pvt. Ltd., v., Rajiv Trust & another,
reported in AIR 1998 SC 1754 to the
effect that resistance or obstructions made
even by a third party to the execution of
decree can be gone into under O.21 Rule 97,
Rules 97 to 106 in Order 21 are subsumed
under the caption "resistance to delivery of
possession to decree-holder or purchaser." A
third party to the decree who offers resistance
would thus fall within the ambit of R.101 if an
adjudication is warranted as a consequence of
the resistance or obstruction made by him to
the execution of the decree. The court is not
obliged to determine a question merely
because the resistor raised it. The words "all
questions arising between the parties to a
proceeding on an application under R.97"
would envelop only such questions as would
legally arise for determination between those
parties.
(38 of 56)
14. The learned counsel for the respondents
placed reliance on decision in Ashan Devi &
Anr. Vs., Phulwasi Devi & Ors, (2003 (9)
SCALE 783 and in Sri Venkatarayappa vs., Sri
G Muniyappa & others, reported in ILR 2008
KAR 3553. The facts of the said cases are
different from the facts involved in the present
case. In those two decisions, the court was
concerned with threat of dispossession of the
obstructers and knowledge of the decree
holder about title of the obstructers and not
impleading them in the suit and obtaining a
decree. But here is a case where the
obstructers made impleading applications
which came to be dismissed by the trial court
and the impleading applicants did not assail
that order and accepted with the same.
Further the obstructers who are claiming title
based on the individual title deeds and as the
petitioner claims that the properties claimed
by the obstructers are different and distinct,
they are entitled to agitate their rights in
respect of their respective sites. Some of the
obstructers' rights are resolved in the
individual suits filed by them and therefore
one more resolution of their dispute in the
present execution does not arise......."
In this case, the petitioner (purchaser) filed a suit for
specific performance against respondent Nos. 1 to 9 (vendor)
seeking directions to them to execute sale deed as per the
agreement of sale dated 5.12.1993. During pendency of the
suit, the obstructors filed impleadment application on the
ground that they have purchased residential sites formed in
the suit schedule lands from the defendants and they are in
occupation of the respective sites, as absolute owners, they
are the bona fide purchasers for valuable consideration,
under respective sale deeds.
The Karnataka High Court held that it is seen from the
records that the obstructers already filed suits on the basis of
sale deeds and obtained decree in their favour, and now the
(39 of 56)
matters are before this Court. Therefore, the obstructers who
are basing their title on the basis of individual sale deeds
have to protect their rights on the basis of individual title
deeds and are not entitled to have a resolution of their
dispute in the execution petition filed by the petitioner. The
Court below while passing the impugned order has failed to
note that on the same set of facts, the obstructers moved the
impleadment application and failed in their attempt. They
have accepted the said order and therefore they are not
entitled to obstruct the decree in the execution petition and
pray for rejection of the execution petition.
9. Deva Ram and Ors. v The Addl. District Judge and
Ors. AIR 2008 Raj 174
".......6. The learned Trial Court has
proceeded to reject the aforesaid three
applications together by the impugned
common order dated 14.12.2007. The learned
Trial Court has observed that the matter
relates to agricultural land wherein khatedari
rights are allowed under the Rajasthan
Tenancy Act and in case of intestate demise of
the khatedar, the rights devolve as per
personal law; and during the lifetime of the
khatedar, his sons and daughters cannot
prevent him from alienating the land. The
learned Trial Court has further observed that
the land in question is in the khatedari of
Motaram who received the same from his
father; that the plaintiff has alleged the
agreement for sale having been executed by
Motaram and his sons and has filed the suit for
specific performance joining them as parties;
and hence, there was no necessity to hear the
applicants......"
In this case, the suit in question was filed on 01.09.1993
by the plaintiff Omprakash (purchaser) (Respondent No. 2)
against the defendants and vendors Motaram (Respondent
(40 of 56)
No. 3 herein), his sons Ramdhan (since deceased and
represented by his legal representatives Respondent Nos.
4/1 to 4/10) and Pemaram (Respondent No. 5). The plaintiff
Omprakash alleged the defendants Motaram, Ramdhan and
Pemaram having entered into an agreement on 02.09.1990
to sell the suit property and later not executing the same.
The petitioners before the High Court moved an
application under Order I Rule 10 CPC, asserting the land in
question to be an ancestral property; and while stating their
entitlement thereto, alleged that the litigation in question
has a direct bearing on their rights for which their presence
would be necessary for effectual and complete determination
of the questions involved. The petitioner No. 1 Devaram
stated himself to be the son of the daughter of Bheraram
(their ancestor and father of Motaram); and the petitioners
Nos. 2 to 6 stated themselves being the daughters of
Motaram (defendant No. 1). Another application of similar
nature for impleadment was filed by the sons of the
defendant No. 3, Pemaram. The Court held that the crux of
the matter remains that the suit in question is the one for
specific performance of an agreement to sell, alleged to have
been entered into by the defendants Motaram, Ramdhan and
Pemaram. This Court held that in the factual situation of the
case, none else except the plaintiff (the alleged purchaser)
and the defendants (the alleged vendors) were the
(41 of 56)
necessary parties to this suit. The application for
impleadment as filed by the petitioners, who were not the
parties to the agreement in question, was held
fundamentally misconceived and was rejected.
10. Mumbai International Airport Pvt. Ltd. v Regency
Convention Centre and Hotels Pvt. Ltd. and Ors. AIR
2010 SC 3109
".........24.4 If an application is made by
a plaintiff for impleading someone as a proper
party, subject to limitation, bonafides 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 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
(42 of 56)
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........"
In this case, Chhatrapati Shivaji International Airport,
Mumbai was handed over to the appellant for operation,
maintenance, development and expansion under an
agreement dated 4.4.2006 with AAI. However, a parcel of
the land measuring 31,000 sq.m. was not made a part of
the lease due to a pending suit filed by the Respondent No.
1 against AAI in High Court and the said premises could
become part of the demised premises subject to the Court
verdict. The Appellant filed an application under Order I Rule
10 of the Code of Civil Procedure requesting impleadment in
the suit for specific performance between Respondent No.1
and AAI which was rejected by the Court. The Hon'ble Court
held that the appellant is neither a necessary nor a proper
party. If the interim order in the suit filed by the Respondent
No.1 came in the way of granting the lease of the suit land,
it is clear that the suit land was not leased to the Appellant.
The fact that if AAI succeeded in the suit, the suit land may
also be leased to the appellant is not sufficient to hold that
the appellant has any right, interest or a semblance of right
or interest in the suit property. It was held that the Appellant
was neither a purchaser nor the lessee of the suit property
(43 of 56)
and had no right, title or interest therein, to be a party in
the suit.
11. Manohar Lal and Ors. v Bhupendra Singh and Ors.
2015 (4) CDR 2127 (Raj)
".......8. Learned counsel appearing for
the petitioners submitted that the Court below
has found that there could have been
possibility of fabricating any document by the
petitioners, since the alleged sale agreement
is an unregistered document, which is not
warranted. Further, the said Amavasai has not
filed any suit for specific performance of the
contract, hence, the Court below has viewed
for the possibility of fabricating the document,
which could not be construed as defamatory or
pre-conclusion against the petitioners......"
In this case, Petitioners filed a civil suit for specific
performance of contract and perpetual injunction by arraying
the Respondents Nos. 1(vendor) and Respondent No. 2
(holder of power of attorney of first respondent) as
defendants. In the suit, it was averred that first respondent
has agreed to sell urban land measuring 4928 sq.ft. to them
by executing agreement to sell dated 21.08.1992. In the
written statement, the first respondent has denied the fact
that he has appointed second respondent as his power of
attorney holder. During pendency of the suit, the third
respondent laid an application under Order I Rule 10 CPC for
being impleaded as a party defendant. In his application, the
third respondent averred that the land in question is owned
by him and, therefore, he is not only proper party but a
necessary party to the litigation. With a view to substantiate
(44 of 56)
his assertion, the third respondent also averred in the
application that for the same property he has launched a Civil
Suit bearing No. 229/1998 for permanent injunction wherein
interim injunction has been granted in his favour to protect
his possession.
The Court held that although the subject matter of the
suit was specific performance of the contract, since the
petitioners had also claimed the relief of perpetual injunction,
as such, on the face of it, when the third respondent had
shown his semblance of interest and title on the land in
question and further he had proved his possession over the
same, it could not be said that the learned Courts below has
committed any jurisdictional error in impleading him as party
defendant. The Court found that the third respondent has
proved his possession on the strength of suit for perpetual
injunction filed by him, wherein interim relief had been
granted to him and further more, there was a sale deed in his
favour of the said property. After scrutinizing the legal
precedents on which rival parties have placed reliance, on the
touchstone of the facts of the case, in the suit for specific
performance of contract and permanent injunction
considering the semblance of title or interest of the third
respondent and his possession on the land founded on sale
deed, the Court instead of subscribing to the traditional
view, found that departure from it was a better course. What
(45 of 56)
is noteworthy here is, that the case of Thompson Press was
neither considered nor cited.
As a result of the analysis of various judgments cited by
the rival counsels and some other judgments, which were
deemed germane to the question involved, this Court finds
that the position of law is more or less trite that in the suit for
specific performance, a person who has acquired right, title
and interest in the property, after the contentious agreement
to sell for specific performance whereof, the suit has been
filed, has a right to become a party.
A question thus naturally arises, that if a subsequent
purchaser, bonafide or a stranger, having acquired right or
interest after the notice of the litigation, has a right to be
impleaded as a party, then why a person who has acquired
right, title and interest in the subject property, prior to the
agreement to sell, for which, the litigation is pending, should
be denied such a right?
In this regard, the observation of Supreme Court in
Sumiti Bai & Ors Vs. Paras Finance Co. & Ors. reported in
(2007) 10 SCC 82 particularly Para 14 is of great significance.
At the cost of repetition, it would be worthwhile to go through
the excerpts from Para No.14 of the said judgment:
"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
(46 of 56)
the decree on the ground that (A) had no title in the property
in dispute, clearly such a view cannot be countenanced".
As far as the judgment of the Supreme Court in Kasturi's
case is concerned, on which, much reliance has been placed
by the learned counsel for the petitioner, if the facts of the
case are minutely examined, it is apparent that the persons
seeking impleadment, being respondents Nos.4 to 11 in the
said case, were the persons claiming title and possession of
the contracted property, indicating that they are the legal
heirs of elder brother of the deceased namely Chockanathan
and thus entitled to the suit property. Father of the
respondent No.1 Thiruvarasan had purchased the contentious
property involved in the suit from one Poonusamy Naicker
under the sale deed dated 19.03.1955, which sale deed
contained five items of property. Out of the said five items,
two items were the suit properties in the suit filed before the
Trial Court.
As the judgment of the Supreme Court in Kasturi's Case
reported in 2005 (6) SCC 773 does not clearly indicate as to
who were the respondents No.4 to 11, this Court has looked
into the judgment of Madras High Court reported in 2003 (2)
MLW 547 (Madras High Court). If the judgment of the
Supreme Court rendered in Kasturi's case is perused, this
Court finds that in Para No.7 of the said judgment, the
(47 of 56)
Hon'ble Supreme Court has clearly carved out that necessary
parties in suit for specific performance to an agreement to
sell are the parties to the contract i.e. vendor or vendee and
if they are dead, (their legal representatives as also
persons who had acquired the contracted property
from the vendor."
In the same vein in Para No.7 itself, the Supreme Court
has denied the right to be impleaded as a party to a
person who claims adversely to the claim of a vendor.
The aforesaid view of the Supreme Court is further
fortified from Para No.14 of the said judgment particularly the
expression "in our opinion, the respondent Nos.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 vendor after the contract was
entered into."
If the facts of the Kasturi's case are examined, it
transpires that the persons being respondent Nos.4 to 11
seeking impleadment claimed themselves to be the owner of
the property and as such, the Supreme court denied them the
right of audience and rejected their impleadment
applications.
A careful reading of Kasturi's judgment heavily relied by
Mr. Saruparia, on the contrary shows that a person who had
(48 of 56)
purchased the contracted property from the vendor is
entitled, to be impleaded as a party, while a person who
claims adversely to the claim of a vendor is not a necessary
party.
Having examined the facts of the present case on the
touchstone of the enunciation made by the Supreme Court in
Kasturi's case, this Court is prima facie of the opinion that
the applicants alleging to have acquired right, title, interest
in the property prior to the contentious agreement to sell are
entitled to be impleaded as a party. The law laid down in
Kasturi's case that "a person who claims adversely to the
claim of a vendor is however, not a necessary party" also
supports the case of the applicants-respondents inasmuch as
they have not claimed adversely or rival to the claim of the
vendor.
The vendor in the present case is Roop Lal Kakhani,
whose legal representatives have been impleaded as
defendants No. 1 to 4. The applicants have not asserted their
right against the right, title and interest of Roop Lal Kakhani,
or challenged his title, but contended that he had transferred
some part of the property to them, by way of separate
instruments or conveyance. In the peculiar facts of the
present case, if the applicants are impleaded as a party, they
will not be claiming their right adversely to the claim of the
vendor and hence there is a remote possibility of the
(49 of 56)
present suit being transformed into a suit for title, as
apprehended by Mr. Saruparia. If their impleadement is not
permitted, as argued by the petitioner, it would lead to
multiplicity of proceedings, because then in such event, the
applicants will have to wait until a decree is passed against
the defendants to take their legal remedies.
Now crops up the another ancillary, yet important
question, as to "who are the persons having acquired the
right, title and interest in the property?" The phrase "right,
title and interest" has been used by the Supreme Court and
other Courts of law, while deciding the impleadment
application under Order 1 Rule 10 of the Code of Civil
Procedure, 1908, may it be an application filed by the prior
purchaser or the subsequent purchaser, having acquired the
right after the date of the subject agreement to sell, which is
the subject matter of the suit.
In all the above referred cases, the impleadment has
been allowed by the Supreme Court, as the applicants were
having substantive right in the property either by way of joint
ownership or by way of interest or title, as a result their right
to succeed. In other words, as discussed in the case
analysis, the Supreme Court has permitted impleadment of
those persons who have prima facie established or showcased
their ownership, title and possession qua the property.
(50 of 56)
The case at hand is quite different, as out of seven
applicants, only one, namely Shanti Lal is having right, title
and interest in true sense. It is Shanti Lal alone, who is
having registered sale deed in his favour, whereas all other
applicants have laid their claim on the basis of separate
agreements to sell in their favour, executed by said Roop Lal
Kakhani during the period ranging from 1990 to 2005 (prior
to the contentious agreement). Without observing anything
about their individual rights, this Court holds that Shanti Lal-
respondent No.5 having a registered sale deed or title in his
favour, falls within the ambit of phrase "right, title and
interest in the property" and has a definite right to be
impleaed.
The cases/ applications of other applicants cannot be
equated with that of Shanti Lal, inasmuch as they are
admittedly having only agreement to sell in their favour
which too are unregistered. In this regard, it would be
relevant to refer to various provisions of Registrartion Act and
Specific Relief Act.
Section 50 of the Registration Act is reproduced
hereinfra:-
50. Certain registered documents relating
to land to take effect against unregistered
documents
(1) Every document of the kinds mentioned in
clauses (a), (b), (c) and (d) of section 17, sub-
section (1), and clauses (a) and (b) of section
18, shall, if duly registered, take effect as
(51 of 56)
regards the property comprised therein, against
every unregistered document relating to the
same property, and not being a decree or order,
whether such unregistered document be of the
same nature as the registered document or not.
(2) Nothing in sub-section (1) applies to leases
exempted under the proviso to sub-section (1)
of section 17 or to any document mentioned in
sub-section (2) of the same section, or to any
registered document which had not priority
under the law in force at the commencement of
this Act.
Explanation : In cases where Act No. XVI of
1864 or the Indian Registration Act, 1866,
was in force in the place and at the time in
and at which such unregistered document
was executed, "unregistered" means not
registered according to such Act, and, where
the document is executed after the first day
of July, 1871, not registered under the Indian
Registration Act, 1871, or the Indian
Registration Act, 1877, or this Act.
Section 17 (1) (f) and Sections 19 & 20 of the Specific
Relief Act are reproduced hereunder:-
"17. Documents of which registration is
compulsory
(1) The following documents shall be registered,
if the property to which they relate is situate in a
district in which, and if they have been executed
on or after the date on which, Act No. XVI of
1864, or the Indian Registration Act, 1866, or
the Indian Registration Act, 1871, or the Indian
Registration Act, 1877 or this Act came or comes
into force, namely:-
"(f) agreement to sell immovable property
possession whereof has been or is handed
over to the purported purchaser;
19. Relief against parties and persons
claiming under them by subsequent title
(52 of 56)
Except as otherwise provided by this Chapter,
specific performance of a contract may be
enforced against-
(a) either party thereto;
(b) any other person claiming under him by a
title arising subsequently to the contract, except
a transferee for value who has paid his money in
good faith and without notice of the original
contract;
(c) any person claiming under a title which,
though prior to the contract and known to the
plaintiff, might have been displaced by the
defendant;
(d) when a company has entered into a contract
and subsequently becomes amalgamated with
another company, the new company which
arises out of the amalgamation;
(e) when the promoters of a company have,
before its incorporation, entered into a contract
for the purpose of the company and such
contract is warranted by the terms of the
incorporation, the company:
PROVIDED that the company has accepted the
contract and communicated such acceptance to
the other party to the contract.
20. Discretion as to decreeing specific
performance
(1) The jurisdiction to decree specific
performance is discretionary, and the court is
not bound to grant such relief merely because it
is lawful to do so; but the discretion of the court
is not arbitrary but sound and reasonable,
guided by judicial principles and capable of
correction by a court of appeal.
(2) The following are cases in which the court
may properly exercise discretion not to decree
specific performance:
(a) where the terms of the contract or the
conduct of the parties at the time of entering
into the contract or the other circumstances
under which the contract was entered into are
such that the contract, though not voidable,
gives the plaintiff an unfair advantage over the
defendant; or
(b) where the performance of the contract would
involve some hardship on the defendant which
he did not foresee, whereas its non-performance
(53 of 56)
would involve no such hardship on the plaintiff;
or
(c) where the defendant entered into the
contract under circumstances which though not
rendering the contract voidable, makes it
inequitable to enforce specific performance.
Explanation 1 : Mere inadequacy of
consideration, or the mere fact that the contract
is onerous to the defendant or improvident in its
nature, shall not be deemed to constitute an
unfair advantage within the meaning of clause
(a) or hardship within the meaning of clause (b).
Explanation 2: The question whether the
performance of a contract would involve
hardship on the defendant within the meaning of
clause (b) shall, except in cases where the
hardship has resulted from any act of the
plaintiff subsequent to the contract, be
determined with reference to the circumstances
existing at the time of the contract.
(3) The court may properly exercise discretion to
decree specific performance in any case where
the plaintiff has done substantial acts or suffered
losses in consequence of a contract capable of
specific performance.
(4) The court shall not refuse to any party
specific performance of a contract merely on the
ground that the contract is not enforceable at
the instance of the party."
A perusal of Section 17 (1) (f) shows that agreement to
sell in relation to immovable property, possession whereof
has been handed over, requires compulsory registration. It is
an admitted fact on record that the agreement to sell in
favour of the Applicants-respondents (except respondent
No.5 Shanti Lal), have not been registered. After
18.09.1989, every agreement to sell in relation to an
immovable property, is required to be registered. As such in
(54 of 56)
absence of registration, the agreements to sell have no legal
sanctity or enforceability.
Besides this, by virtue of the provisions contained in
Section 50 of the Registration Act, the registered document
shall take effect against unregistered documents. In view
thereof, applicant-respondent No.5 Shanti Lal, who is having
registered conveyance in his favour has definitely a better
title, than the plaintiffs. As such, he is a necessary party in
the suit proceedings. After impleadment, it would be
necessary to enquire/probe as to whether, the vendor late
Shri Roop Lal Kakhani having transferred the said land in
favour of Shanti Lal, was having capacity or legal title to
convey even that parcel of the land to the plaintiffs, by way
of agreement to sell dated 16.08.2005.
The Supreme Court has dealt with the rights of the
parties, in light of Section 19 of the Specific Performance
Act, while deciding their impleadment applications. Clause
(b) of Section 19 is having important bearing on the issues
which deals with the transactions, after the execution of the
agreement to sell, for which a suit for specific performance
has been instituted.
Section 20 of the Specific Relief Act clearly provides that
jurisdiction to decree, specific performance is discretionary
and the Court is not bound to grant such relief merely
(55 of 56)
because it is lawful to do so, while carving out certain
exceptions, in which, the Court can exercise its discretionary
power not to decree the suit for specific performance, which
includes hardship. As such, being guided by the underlying
principles of Section 20 of the Specific Relief Act, 1963, the
Court may take into account the antecedent factors.
As an upshot of the above discussion, this Court holds
that respondent No.5 Shanti Lal, having purchased the
property by way of registered sale deed is a necessary party
whereas, other applicants who are having agreement to sell
simplicitor, despite being a proper party cannot be impleaded
as defendants, as they have staked their claim on the basis
of unregistered agreement to sell and long possession. Their
impleadment in the suit proceedings if permitted, would
definitely change the nature of the suit and it would become
a suit for title, and would stretch way beyond the confines of
a suit for specific performance.
The impleadment of respondents No.6 to 11 (herein
after referred to as "other applicants") would lead to
multiplicity of litigation and their arrayal in the suit would
make a mess of the suit proceedings, inasmuch as, various
issues may sprout, including the validity of their agreements,
which are neither registered nor appropriately stamped.
These Applicants' impleadment in the suit proceedings would
swell the scope of the suit, besides changing its nature.
(56 of 56)
At this juncture, it would be apt to observe that the
other applicants (respondent Nos.6 to 11) not being
permitted to participate in the suit proceedings by way of the
order instant, will have a right to obstruct the execution
proceedings on the basis of their right and interest in the
property within the frame work of law, including Order XXI
Rule 97 of the Code of Civil Procedure, 1908. The applicants
cannot be deprived of their rights to object or obstruct the
execution proceedings as a result of rejection of their
impleadment applications.
The writ petition is allowed in part. The impugned order
dated 28.09.2016, permitting impleadment of the applicants,
except Shanti Lal (respondent No.5) is set aside. Needless to
clarify that Shanti Lal shall continue to remain in the arena of
defendants and will have all right to contest the suit,
including filling the written statement.
(DINESH MEHTA), J.
mamta