Dashrath Kumar Choudhary vs Rameshwer Goyal And Anr on 28 February, 2013

[Cites 8, Cited by 1]

Rajasthan High Court - Jaipur

Dashrath Kumar Choudhary vs Rameshwer Goyal And Anr on 28 February, 2013

1. The present petition has been filed by the petitioner-defendant challenging the order dated 4.2.12 passed by the Addl. District Judge, No.7, Jaipur City, Jaipur (hereinafter referred to as 'the trial court') in Civil Suit No. 89/09 whereby the trial court has allowed the application of the respondent-plaintiff seeking amendment in the plaint under Order VI Rule 17, and impleadment of Smt. Gunjan Choudhary as the party-defendant in the suit under Order I Rule 10 of CPC.

2. The facts in nutshell are that the respondent-plaintiff has filed the suit against the petitioner-defendant seeking specific performance of the agreement dated 30th April, 2008, alleging interalia that the defendant was the owner of the property bearing Flat No. 101 having super built up area of 2845 Sq. feet and the Showroom having built up area of 900 Sq. feet and one basement with parking situated at the Vaibhav Paradise Apartment, Plot No. 3-B, Moti Doongri Road, Jaipur. It was further alleged that the petitioner-defendant had agreed to sell the said property to the respondent-plaintiff for consideration of Rs. 52 lacs, out of which the plaintiff had paid Rs. 5 lacs in cash. Since the petitioner-defendant refused to perform his part of agreement in question, the suit was filed. The said suit was resisted by the petitioner-defendant by filing the written statement denying the allegations made in the plaint and further contending interalia that no such agreement as alleged was executed by him. He also further contended that the father of the petitioner-defendant Shri Girdhar Gopal Choudhary was the owner of the suit property, who had gifted the Showroom to Smt. Gunjan Choudhary, wife of the petitioner by registered gift deed dated 2.6.07 and had gifted the Flat No. 101 to the petitioner-defendant. The respondent-plaintiff filed the rejoinder alleging that the said gift deed was sham and fictitious.

3. In view of the said contentions raised by the petitioner-defendant in his written statement, the respondent-plaintiff also filed an application seeking amendment in the plaint under Order VI Rule 17 and seeking impleadment of Smt. Gunjan Choudhary as the party-defendant No.2 under Order I Rule 10 of CPC. The said application was resisted by the petitioner-defendant, however the trial court vide the impugned order allowed the said application. Being aggrieved by the same, the present writ petition has been filed by the petitioner-defendant invoking Article 227 of the Constitution of India.

4. It has been submitted by the learned senior counsel Mr. Ajeet Bhandari for the petitioner that in the suit for specific performance of the alleged agreement, the person who is not the party to the alleged agreement could not be said to be either necessary or proper party. In this regard he has placed heavy reliance on the decisions of the Apex Court in case of Bharat Karsondas Thakkar Vs. Kiran Construction Company & Ors. (2008) 13 SCC 658 and Kasturi Vs. Iyyameperumal & Ors. (2005) 6 SCC 733. He also submitted that the trial court without appreciating the provisions contained in the Specific Relief Act, 1963 in the light of the said decisions has passed the impugned order, which deserves to be set aside.

5. However, the learned senior counsel Mr. R.K. Agrawal for the respondent-plaintiff placing reliance on the decision of the Apex Court in the case of Sumatibai & Ors. Vs. Paras Finance Co. & Ors. (2007) 10 SCC 82 submitted that the decision in the case of Kasturi Vs. Iyyameperulmal (supra) has been distinguished by the Apex Court and that there could not be any absolute proposition that whenever a suit for specific performance is filed, the third party who was not the party to the agreement could not be joined as the party to the suit. Mr. Agrawal further submitted that the amendment was sought in the plaint in view of the contentions raised by the petitioner-defendant in the written statement that he was not the owner of part of the suit property and that his wife was the owner. He also submitted that the order passed by the trial court being just and proper, no interference is called for in the instant petition filed under Article 227 of the Constitution of India.

6. In order to appreciate the rival contentions raised by the learned counsels for the parties, it would be beneficial to refer to the ratio of the decisions laid down by the Apex Court in various cases, where the question had arisen as to whether the person who was not the party to the agreement would be a necessary or proper party in the suit for specific performance of the contract or not. In case of Kasturi Vs. Iyyamperumal & Ors. (supra) the Supreme Court has held as under:-

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.

7. The Apex Court further held in para 11 as under:-

11. As noted hereinearlier, 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, 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.

8. The said judgment was distinguished by the Apex Court in case of Sumatibai & Ors. Vs. Paras Finance Company (supra), wherein the Apex Court observed as under :-

14. In view of the aforesaid decisions we are of the opinion that Kasturi case 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.

9. Again the Apex Court in case of Bharat Karsondas Thakkar Vs. Kiran Construction Company (supra)while considering the question as to whether the stranger to an agreement for sale can be added as a party in a suit for specific performance of an agreement in view of Section 15 of Specific Relief Act, 1963, held as under :-

28. Along with that is the other question, which very often raises its head in suits for specific performance, that is, whether a stranger to an agreement for sale can be added as a party in a suit for specific performance of an agreement for sale in view of Section 15 of the Specific Relief Act, 1963. The relevant provision of Section 15 with which we are concerned is contained in clause (a) thereof and entitles any party to the contract to seek specific performance of such contract. Admittedly, the appellant herein is a third party to the agreement and does not, therefore, fall within the category of "parties to the agreement". The appellant also does not come within the ambit of Section 19 of the said Act, which provides for relief against parties and persons claiming under them by subsequent title. This aspect of the matter has been dealt with in detail in Kasturi case. While holding that the scope of a suit for specific performance could not be enlarged to convert the same into a suit for title and possession, Their Lordships observed that a third party or a stranger to the contract could not be added so as to convert a suit of one character into a suit of a different character.

10. Now if the facts of the present case are appreciated in the light of the above stated legal position, it transpires that the amendment in the plaint was proposed by the respondent-plaintiff under Order VI Rule 17 and the impleadment of Smt. Gunjan Choudhary was sought for under Order I Rule 10 of CPC as the petitioner-defendant had raised the contentions in the written statement that his father Shri Girdhar Gopal Choudhary was the owner of the entire suit property and that part of it i.e. the Showroom was gifted by him to Smt. Gunjan Choudhary wife of the petitioner, by registered gift deed dated 2.6.07. Though the respondent-plaintiff had filed the rejoinder alleging that the said gift deed was a fictitious document, the amendment was sought on the ground that the same was necessary for the purpose of deciding the real questions in controversy between the parties. It is not disputed that the trial of the suit has still not been commenced. It also appears that the petitioner-defendant while denying the execution of the alleged agreement had set up the defence that he was not the owner of part of the suit premises and his wife was the owner by virtue of the registered gift deed executed by his father. Such facts having come on record for the first time in the written statement, the respondent-plaintiff would not have knowledge of the same. Since the petitioner-defendant had allegedly posed himself as the owner of the entire suit property in the agreement in question, the new defence raised by him in the written statement necessitated the amendment in the plaint. Though the suit for specific performance can not be permitted to be converted into the suit for title, the proposed amendment was required to avoid multiplicity of proceedings, and to determine the real questions between the parties. The trial having not commenced so far, both the parties would have ample opportunity to lead their respective evidence.

11. In the decision of the Apex Court relied upon by the learned senior counsel Mr. Ajeet Bhandari for the petitioner, the question involved was as to whether the third party or stranger to the agreement, who was the subsequent purchaser was necessary party or not. However, in the instant case the proposed party who is sought to be impleaded is the wife of the petitioner and according to the petitioner she was the owner of the part of the suit property. Under the circumstances her presence would be necessary to enable the court to effectively and completely adjudicate upon and settle all the questions involved in the suit, as contemplated under Order I Rule 10 of CPC. Even in case of Kasturi Vs. Iyyamperumal & Ors.(supra) the Apex Court has held that two tests are to be satisfied for determining the questions as to who is a necessary party and the tests are (1) there must a right to some relief against such party in respect of the controversies involved in the proceedings and (2) no effective decree can be passed in absence of such party. Since as per the contentions raised by the petitioner-defendant himself, the proposed defendant Smt. Gunjan Choudhary, was the owner of part of the suit property, her presence would be necessary for passing an effective decree. In that view of the matter, the court is of the opinion that there is no illegality or infirmity in the impugned order passed by the trial court, allowing the application seeking amendment and impleadment of the party defendant No.2 in the suit as prayed for by the respondent-plaintiff.

12. In the aforesaid premises, the petition being devoid of merits deserves to be dismissed and is accordingly dismissed.

(BELA M. TRIVEDI) J.

MRG.

All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.

M.R. Gidwani PS-cum-JW

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Rajasthan High Court - Jaipur