Madras High Court
Saivasamy Thevar (Died) vs Rajasekaran on 11 June, 2008
Equivalent citations: AIR 2008 (NOC) 2753 (MAD.), 2009 (1) AJHAR (NOC) 176 (MAD.) 2009 (1) AKAR (NOC) 48 (MAD.), 2009 (1) AKAR (NOC) 48 (MAD.), 2009 (1) AKAR (NOC) 48 (MAD.) 2009 (1) AJHAR (NOC) 176 (MAD.), 2009 (1) AJHAR (NOC) 176 (MAD.)
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11/06/2008 CORAM THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN C.R.P.(PD)(MD)No.536 of 2004 and C.M.P(MD).No.5419 of 2004 1.Saivasamy Thevar (died) 2.S.Angammal 3.S.Solai 4.S.Munisamy 5.S.Duraipandi [Petitioners 2 to 5 brought on record as LRs of the deceased sole petitioner as per order of this Court dated 14.02.2008 in M.P.No.1 of 2007] ... Petitioners Vs. 1.Rajasekaran 2.Neelakandan 3.Anbarasan 4.Utthiram ... Respondents PRAYER Civil Revision Petition filed under Article 227 of the Constitution of India against the Order dated 10.10.2003 allowing the I.A.No.119 of 2003 in O.S.No.170 of 2001 passed by the learned Sub-Judge, Aruppukottai, Virudhunagar District. !For Petitioners ... Mr.R.Ganesan ^For RR1 to 3 ... Mr.J.Gunaseelan Muthiah :ORDER
This Civil Revision Petition is directed against the order dated 10.10.2003 in I.A.No.119 of 2003 in O.S.No.170 of 2001 on the file of Subordinate Judge, Aruppukkottai.
2. The suit in O.S.No.170 of 2001 has been preferred by the first petitioner, since deceased, against the fourth respondent praying for a decree of specific performance on the basis of the sale agreement dated 17.04.1997 stated to have been executed by the said respondent.
3. The said suit was contested by the fourth respondent by filing written statement. While so, the respondents 1 to 3 filed an application in I.A.No.119 of 2003 praying for an order to implead them as defendants, as according to them, they are the children of the fourth respondent and they also got right in the suit property. The said application was opposed by the first petitioner, since deceased, on the ground that the proposed parties are unnecessary parties to the proceeding, as they have nothing to do with the agreement in question.
4. The learned trial Judge, as per order dated 10.10.2003, allowed the application for impleading by rejecting the contention of the first petitioner. It is the said order which is impugned in the present civil revision.
5. I have heard Mr.R.Ganesan, learned counsel appearing for the petitioner and Mr.J.Gunaseelan Muthiah, learned counsel appearing for the respondents 1 to
3.
6. Admittedly the suit in O.S.No.170 of 2001 is for a decree for specific performance. The basis for filing the said suit is a sale agreement executed by the fourth respondent with the revision petitioner on 17.04.1997, in and by which the fourth respondent agreed to sell the suit property to the first petitioner, since deceased. The lis involved in the matter is between the deceased first petitioner and the fourth respondent. The alleged right of the respondents 1 to 3 pertaining to the suit property is altogether a different matter to be agitated by them in an appropriate proceeding. The present suit being one for specific performance, the only issue to be decided is about the enforceability of the agreement in question. Such being the position, I am of the view that the learned trial Judge committed a serious error in impleading the respondents 1 to 3 as party to the suit in O.S.No.170 of 2001.
7. In Kasturi v. Iyyamperumal reported on 2005(6) SCC 733, the Apex Court considered the question as to whether a third party or stranger to the contract could be added in a suit for specific performance and held thus:
"4. In order to decide the question, as framed hereinearlier, it is necessary to consider the relevant provisions of the Code of Civil Procedure (in short CPC) under which the court is empowered to add a party in the suit. However, our answer to the question framed, as raised by the learned counsel for the parties, is that the High Court as well as the trial court had acted illegally in the exercise of their jurisdiction in allowing the application of Respondents 1 and 4 to 11 for their addition as defendants in the suit. There are certain special statutes which clearly provide as to who are the persons to be made as parties in the proceeding/suit filed under that special statute. Let us take the example of the provisions made under the Representation of the People Act. Section 82 of the aforesaid Act clearly provides who are the persons to be made parties in election petitions. There are other special statutes which also postulate who can be joined as parties in the proceedings instituted under that special statute, otherwise the provisions of CPC should be applicable. So far as addition of parties under CPC is concerned, we find that such power of addition of parties emanates from Order 1 Rule 10 CPC. As we are concerned in the instant case with Order 1 Rule 10 CPC, we do not find it necessary to refer to other provisions of CPC excepting Order 1 Rule 10 CPC which reads as under:
"10. (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the court thinks just.
(2) The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, 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, be added. (3)-(5) (omitted since not necessary)"(emphasis supplied)
5. In deciding whether a stranger or a third party to the contract is entitled to be added in a suit for specific performance of contract for sale as a defendant, it is not necessary for us to delve in depth into the scope of Order 1 Rule 10 sub-rule (1) CPC under which only the addition of a plaintiff in the suit may be directed.
6. Let us therefore confine ourselves to the provision of Order 1 Rule 10 sub- rule (2) CPC which has already been quoted hereinabove. From a bare perusal of sub-rule (2) of Order 1 Rule 10 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 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 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.
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10. That apart, from a plain reading of Section 19 of the Act we are also of the view that this section is exhaustive on the question as to who are the parties against whom a contract for specific performance may be enforced.
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. Lord Chancellor Cottenham in Tasker v. Small1 made the following observations: (ER pp.850-51) "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." (emphasis supplied)
12. The aforesaid decision in Tasker was noted with approval in De Hoghton v. Money. Turner, L.J. observed at Ch p.170:
"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."
8. In a recent judgment in Bharat Karsondas Thakkar vs. Kiran Construction Co. reported in 2008(6)Scale 355, the Apex Court reiterated the legal position that a suit for specific performance could not be enlarged to convert the same into a suit for title and possession and as such, a third party or a stranger to the contract could not be added in a suit for specific performance so as to convert the suit of one character into a suit of a different character.
9. The learned trial Judge appears to have allowed the application filed by the respondents 1 to 3 for impleading them as a party to the proceeding in a casual manner without making an attempt to see as to whether the junction of the parties sought to be impleaded is absolutely necessary for the disposal of the suit in one way or the other. The right claimed by the respondents 1 to 3 is not related to the claim made by the revision petitioner and as such, the respondents 1 to 3 are unnecessary parties to the suit filed by the revision petitioner for a decree of specific performance. Therefore, I do not find any reason to sustain the order of the learned trial Judge and accordingly, I am constrained to set aside the order dated 10.10.2003 in I.A.No.119 of 2003 in O.S.No.170 of 2001.
10. In the result, the Civil Revision Petition is allowed and the order dated 10.10.2003 in I.A.No.119 of 2003 in O.S.No.170 of 2001 on the file of the Subordinate Judge, Aruppukottai is set aside. However, in the facts and circumstances of the case, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
SML To The Sub-Judge, Aruppukottai, Virudhunagar District.