CRP/5550/2010 of K.Narasimha Moorthy Vs P.Venkataswamy Reddy on 29 December 2010

ORDER:

The first respondent herein (hereafter called, the plaintiff) filed thesuit, being O.S.No.113 of 2003, on the file of the Court of the JuniorCivil Judge, Piler, against respondent Nos.2 to 7 herein (hereaftercalled, the defendants). The suit is for specific performance ofagreement of sale, dated 27.11.1997. The petitioner is a third party tothe suit. The plaintiff filed I.A.No.976 of 2009 under Order I Rule 10(2)of the Code of Civil Procedure, 1908 (CPC), and under Order VI Rule17 of CPC to implead the petitioner and another as defendant Nos.6and 7 and also insert sub para 4(a) after para 4 in the plaint containingthe requisite allegations against the petitioner and another who weresought to be impleaded. The petitioner opposed. By impugned order,dated 16.09.2010, the Court below allowed the application adding thepetitioner and another as defendant Nos.6 and 7.

The Counsel for the petitioner submits that the defendants filedwritten statement on 11.08.2003 alleging that the suit scheduleproperty was already sold to the petitioner. The plaintiff all along keptquiet and chose to file the application to implead belatedly when the property was already sold to the petitioner under registered sale deeddated 02.01.1998. Therefore, he would urge that the application isbarred by limitation.

In the application to implead and amend the plaint, the plaintiffalleged that so as to defeat his legitimate claims, defendants broughtinto existence a sham and fictitious sale in favour of the petitioner andanother though the agreement of sale dated 06.07.1997 is in force. This weighed with the Court below in granting the relief to the plaintiff. This Court fails to notice any error, much less, grave error apparent onthe face of the record. It is settled law that in a suit for specificperformance of agreement of sale of immovable property, all theparties interested over the property including the subsequentpurchasers with or without notice of prior sale are necessary parties. In case the plaintiff succeeds in the suit, and the petitioner is notimpleaded as a party, the very purpose of obtaining the decree wouldbe defeated. This view is well supported by Kasturi vIyyamperumal[[1]]. Therein a Division Bench of the Supreme Courtlaid down as under.

In our view, a bare reading of this provision, namely, secondpart of Order 1 Rule 10 sub-rule (2) CPC would clearly showthat the necessary parties in a suit for specific performance ofa contract for sale are the parties to the contract or if they aredead, their legal representatives as also a person who hadpurchased the contracted property from the vendor. In equityas well as in law, the contract constitutes rights and alsoregulates the liabilities of the parties. A purchaser is anecessary party as he would be affected if he had purchasedwith or without notice of the contract, but a person who claimsadversely to the claim of a vendor, however, not a necessaryparty. From the above, it is now clear that two tests are to besatisfied for determining the question who is a necessaryparty. Tests are – (1) there must be a right to some reliefagainst such party in respect of the controversies involved inthe proceedings; (2) no effective decree can be passed in theabsence of such party.

In view of the above to resolve all the issues that would arise inthe case, the petitioner is certainly a necessary party. The question oflimitation does not arise. Needless to mention that to resolve “allquestions involved in the suit” at any time in the course of the suit, theCourt can implead all interested parties either as necessary parties orproper parties. In this case, the lower Court has done precisely thesame.

The Civil Revision Petition is misconceived, and the same isaccordingly dismissed.

.12.2010vs

[1](2005) 6 SCC 733

__________________(V.V.S.RAO, J)