Jammu & Kashmir High Court
Rafiqa And Ors. vs Habibullah Bhat And Ors. on 14 December, 2006
Equivalent citations: AIR2007J&K48, 2007(2)JKJ243, AIR 2007 JAMMU AND KASHMIR 48, 2007 AIHC (NOC) 462 (J. & K.) = AIR 2007 JAMMU & KASHMIR 48
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
ORDER Mansoor Ahmad Mir, J.
1. This revision is directed against the order dated 31-10-2006 passed by learned 1st. Additional District Judge. Srlnagar. In a suit titled Habibullah Bhat v. Abdul Gaffar Sofi dismissing the application of the petitioners-applicant for impleadment to the suit.
2. Plaintiff. Habibullah Bhat respondent No. 1 herein filed a suit for specific performance of contract and decree of possession against the defendants-respondents 2 to 4 with the averments as contained in the plaint that defendants executed an agreement to sell, agreeing to sell his property for a consideration of Rs. 9 lacs, out of which Rs. 8 lacs had been paid to the defendants and Rs. 1 lac was to be paid later on. The plaintiff requested the defendants to execute a sale deed in terms of the stipulations contained in the agreement to sell, but defendants desisted though plaintiff was/is ready and willing to perform his part of the contract and he had also performed his part of contract by making payment to the tune of Rs. 8 lacs to the defendants and only Rs. one lac is to be paid. The defendants are bound to perform the contract. It is also pleaded that at the time of execution of the agreement plaintiff came in possession of the house excepting two rooms, the possession whereof is also sought.
3. The suit came to be resisted by the defendants 2 and 3 i.e. Ghulam Rasool Sofi and Mst. Azizi but Abdul Gaffar Sofi in terms of his written statement has virtually admitted the claim of the plaintiff. During the pendency of the suit, petitioners herein filed application for impleadment on the ground that they are co-sharers and are in possession of the suit property and have thus asserted that they are necessary parties and the judgment will adversely affect their rights and will also cause prejudice to them.
4. It appears that the respondents-defendants 2 and 3 and plaintiffs 3 and 4 have also pleaded in the written statement that Jawihara, Mstr. Hajira and Mst. Rafiqa are co-sharers and are necessary parties and have also filed a suit for partition and permanent injunction.
5. After hearing parties, the learned trial Court dismissed the application on the ground that the petitioners are strangers to the agreement to sell and a suit for performance of contract will lie only in between the parties to the agreement and no relief can be claimed against the petitioners by the parties to the agreement. Further the trial Court has observed that in case suit will be decreed and if that decree will adversely affect the petitioners, they can resist it by way of any other remedy and care can also be taken while passing judgment in the suit. Feeling aggrieved by the order of the trial Court, the petitioners have filed this revision.
6. Admittedly petitioners are strangers and are not parties to the agreement and a suit for performance of contract will lie only against parties to the agreement. Thus a person who is not a party to the agreement cannot be arrayed as party to the suit. Provisions of Specific Relief Act, 1996 contained in Chapter-II provides how a suit can be filed. As per the mandate of the Act, only those persons can be arrayed as party to the suit who are parties to agreement and who are claiming under vendor or vendee. Applying the test to the instant case, the petitioners herein are neither party to the agreement nor are claiming under vendor/ vendee. Thus they cannot be arrayed as party in the suit. It is profitable to reproduce para 8 of the Apex Court judgment titled Kasturi v. Iyyamprumal 2005 SAR (Civil) 500:
...We have carefully considered Sub-sections (a) to (e) of Section 19 of the Act. From a careful examination of the aforesaid provisions of Sub-sections (a) to (e) of the Specific Relief Act we are of the view that the persons seeking addition in the suit for specific performance of the contract for sale who were not claiming under the vendor but they were claiming adverse to the title of the vendor do not fall in any of the categories enumerated in Sub-sections (a) to (e) of Sec-Lion 19 of the Specific Relief Act.
7. No-doubt petitioners have pleaded that they are co-sharers and are in possession of the suit property. Whether they are co-sharers or in possession of the property in dispute is a question of title which falls beyond the controversy raised in the suit and such a question cannot be decided in the suit in hand. However, if the suit is decreed after plaintiff succeeds and establishes all the ingredients which are pre-requisite for passing decree in a suit for specific performance of contract, then question is whether petitioners can be dispossessed. The answer to this question is in negative because, they can at that time resist the execution petition and also file a suit for cancellation of decree. It is profitable to reproduce relevant portion of para 14 of the judgment referred to hereinabove, hereunder:
...Therefore, in our view, a third party or a stranger to the contract cannot be added so as to convert a suit of one character into a suit of different character. As discussed above, in the event any decree is passed against the respondent Nos. 2 and 3 and in favour of the appellant for specific performance of the contract for sale in respect of the contracted property, the decree that would be passed in the said suit obviously, cannot bind the respondent Nos. 1 and 4 to 11. It may also be observed that in the event, the appellant obtains a decree for specific performance of the contracted property against the respondent Nos. 2 and 3, then, the Court shall direct execution of deed of sale in favour of the appellant in the event respondent Nos. 2 and 3 refusing to execute the deed of sale and to obtain possession of the contracted property he has to put the decree in execution. As noted hereinabove, since the respondent Nos. 1 and 4 to 11 were not parties in the suit for specific performance of a contract for sale of the contracted property, a decree passed in such a suit shall not bind them and in that case, the respondent Nos. 1 and 4 to 11 would be at liberty either to obstruct execution in order to protect their possession by taking recourse to the relevant provisions of the CPC, if they are available to them, or to file an independent suit for declaration of the title and possession against the appellant or respondent Nos. 3. On the other hand, if the decree is passed in favour of the appellant and sale deed is executed the stranger to the contract being the respondent Nos. 1 and 4 to 11 have to-be sued for taking possession if they are in possession of the decretal property.
8. It is beaten law of the land that plaintiff is dominus litis and it is his choice whom he will array a party and he cannot be forced to add a party against whom he does not want to fight or any relief. I am fortified in my view by the above judgment, the relevant portion of which is annexed hereunder:
...This apart, there is another principle which cannot also be forgotten. The appellant, who has filed the instant suit for specific performance of the contract for sale is dominus litus and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law, as already discussed above. For the reasons aforesaid, we are therefore, of the view that respondent Nos. 1 and 4 to 11 are neither necessary parties nor proper parties and therefore they are not entitled to be added as party-defendants in the pending suit for specific performance of the contract for sale.
9. It is worthwhile to mention here that the petitioner has already filed a suit and they can protect their interest and title in that suit. Petitioners can resist the execution and executing Court has to take into consideration the objections at that point of time.
10. For the foregoing reasons, I am of the considered view that the trial Court has not committed any illegality while passing the impugned order. Be it noted that the findings returned by the trial Court or by this Court shall not in any way cause prejudice to the parties and they are at liberty to seek appropriate remedy at appropriate state from appropriate forum. With these observations, the revision petition is dismissed along with all CMPs. Interim direction, if any also stands vacated.