GURMIT SINGH BHATIA versus KIRAN KANT ROBINSON AND OTHERS on 17 July 2019

[2019] 9 S.C.R. 593

GURMIT SINGH BHATIA

v.

KIRAN KANT ROBINSON AND OTHERS

(Civil Appeal Nos. 5522-5523 of 2019)

JULY 17, 2019

[DR. DHANANJAYA Y. CHANDRACHUD AND

M. R. SHAH, JJ.]

Code of Civil Procedure, 1908 – Or.1, r.10 – Impleadment ofparty – Respondent nos. 2 & 3-original plaintiffs filed a suit againstrespondent no.1-original defendant no.1 for specific performanceof the agreement to sell/contract – During the pendency of the suitand despite the injunction against the respondent no.1 not to alienateor transfer the suit property, he executed a sale deed in favour ofappellant – Pursuant thereto, appellant filed an application u/Or.1r.10 of the CPC for impleadment as a defendant in the suit – TrialCourt directed the original plaintiffs to join the appellant as adefendant in the suit – Writ petition – High Court set aside the orderpassed by the Trial Court and held that as no relief was claimedagainst the appellant, he cannot be said to be necessary or formalparty – On appeal, held: Considering the principle that plaintiff isthe dominus litis and cannot be forced to add parties against whomhe does not want to fight unless there is a compulsion of the rule oflaw – Also, considering the decision of Supreme Court in the caseof Kasturi v. Iyyamperumal, the appellant cannot be impleaded asa defendant in the suit filed by the original plaintiffs for specificperformance of the contract against the original defendant no.1 towhich the appellant is not a party and that too against the wish ofthe plaintiffs – No reason to interfere with the judgment of the HighCourt.

Dismissing the appeals, the Court

HELD: Whether the plaintiffs can be compelled to impleada person in the suit for specific performance, against his wish andmore particularly with respect to a person against whom no reliefhas been claimed by him?

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A1.1 An identical question came to be considered beforethis Court in the case of Kasturi v. Iyyamperumal and applyingthe principle that the plaintiff is the dominus litis, in the similarfacts and circumstances of the case, this Court observed and heldthat the question of jurisdiction of the court to invoke Order 1Rule 10 CPC to add a party who is not made a party in the suit byBthe plaintiff shall not arise unless a party proposed to be addedhas direct and legal interest in the controversy involved in thesuit. It is further observed and held by this Court that two testsare to be satisfied for determining the question who is a necessaryparty. The tests are – (1) there must be a right to some reliefCagainst such party in respect of the controversies involved in theproceedings; (2) no effective decree can be passed in the absenceof such party. It is further observed and held that in a suit forspecific performance the first test can be formulated is, todetermine whether a party is a necessary party there must be a

right to the same relief against the party claiming to be aDnecessary party, relating to the same subject matter involved inthe proceedings for specific performance of contract to sell. It isfurther observed and held by this Court that in a suit for specificperformance of the contract, a proper party is a party whosepresence is necessary to adjudicate the controversy involved inEthe suit. It is further observed and held that the parties claimingan independent title and possession adverse to the title of thevendor and not on the basis of the contract, are not proper partiesand if such party is impleaded in the suit, the scope of the suit forspecific performance shall be enlarged to a suit for title andpossession, which is impermissible. It is further observed andFheld that a third party or a stranger cannot be added in a suit forspecific performance, merely in order to find out who is inpossession of the contracted property or to avoid multiplicity ofthe suits. It is further observed and held by this Court that athird party or a stranger to a contract cannot be added so as toGconvert a suit of one character into a suit of different character.[Para 5.2] [600-E-H; 601-A-C]

1.2 That thereafter, after observing and holding as above,this Court further observed that in view of the principle that theplaintiff who has filed a suit for specific performance of the contractHto sell is the dominus litis, he cannot be forced to add parties against whom, he does not want to fight unless it is a compulsionof the rule of law. In the aforesaid decision in the case of Kasturi,it was contended on behalf of the third parties that they are inpossession of the suit property on the basis of their independenttitle to the same and as the plaintiff had also claimed the relief ofpossession in the plaint and the issue with regard to possessionis common to the parties including the third parties, and therefore,the same can be settled in the suit itself. It was further submittedon behalf of the third parties that to avoid the multiplicity of thesuits, it would be appropriate to join them as party defendants.This Court did not accept the aforesaid submission by observingthat merely in order to find out who is in possession of thecontracted property, a third party or a stranger to the contractcannot be added in a suit for specific performance of the contractto sell because they are not necessary parties as there was nosemblance of right to some relief against the party to the contract.It is further observed and held that in a suit for specificperformance of the contract to sell the lis between the vendorand the persons in whose favour agreement to sell is executedshall only be gone into and it is also not open to the Court todecide whether any other parties have acquired any title andpossession of the contracted property. It is further observedand held by this Court in the aforesaid decision that if the plaintiffwho has filed a suit for specific performance of the contract tosell, even after receiving the notice of claim of title and possessionby other persons (not parties to the suit and even not parties tothe agreement to sell for which a decree for specific performanceis sought) does not want to join them in the pending suit, it isalways done at the risk of the plaintiff because he cannot beforced to join the third parties as party-defendants in such suit.The aforesaid observations are made by this Court consideringthe principle that plaintiff is the dominus litis and cannot be forcedto add parties against whom he does not want to fight unlessthere is a compulsion of the rule of law. Therefore, consideringthe decision of this Court in the case of Kasturi, the appellantcannot be impleaded as a defendant in the suit filed by the originalplaintiffs for specific performance of the contract between theoriginal plaintiffs and original defendant no.1 and in a suit forspecific performance of the contract to which the appellant is not AB

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Aa party and that too against the wish of the plaintiffs. The plaintiffscannot be forced to add party against whom he does not want tofight. If he does so, in that case, it will be at the risk of theplaintiffs. [Para 5.2] [603-D-H; 604-A-E]

Robin Ramjibhai Patel v. Anandibai Rama @ RajaramBPawar (2018) 15 SCC 614 ; Shri Swastik Developersv. Saket Kumar Jain 2014 (2) Mh. L.J 968– inapplicable.

Kasturi v. Iyyamperumal (2005) 6 SCC 733 : [2005]3 SCR 864 – relied on.

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DCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5522-5523 of 2019.

From the Judgment and Order dated 03.07.2013 of the High Courtof Chhattisgarh at Bilaspur in W.P. (227)/856/2012 and order dated05.08.2013 in Review Petition No. 169 of 2013 in W.P. (227)/856/2012.E

Prashanto Chandra Sen, Sr. Adv., P. S. Sudheer, Rishi Maheshwari,Ms. Anne Mathew, Ms. Raj Lakshmi Singh, Kaustab Singh, Ms. ShrutiJose, Advs. for the Appellants.

M. Shoeb Alam, Ujjwal Singh, Gautam Prabhakar, Mojahid Karim FKhan, Kunal Verma, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH , J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 3.7.2013 passed in Writ Petition No. 856/2012 and orderGdated 5.8.2013 passed in Review Petition No. 169/2013 in Writ PetitionNo. 856/2012 by the High Court of Chhattisgarh at Bilaspur, by whichthe High Court has allowed the said writ petition preferred by the originalplaintiffs and has quashed and set aside the order passed by the learnedtrial Court allowing the application preferred by the appellant herein for H

impleading him as a necessary party to the suit filed by respondent nos.2 & 3 herein – the original plaintiffs, the original applicant – appellanthas preferred the present appeals.

2. The facts of the case leading to these appeals in nutshell are asfollows:

Respondent nos. 2 & 3 herein – the original plaintiffs filed a suitagainst respondent no.1 herein – original defendant no.1 for specificperformance of the agreement to sell/contract dated 3.5.2005 executedby respondent no.1 – original defendant no.1 in the Court of learned 4[th]Additional District Judge, Bilaspur. That during the pendency of theaforesaid suit and despite the injunction against respondent no.1 herein– original defendant no.1 – original owner not to alienate or transfer thesuit property, respondent no.1 herein – original defendant no.1 executeda sale deed in favour of the appellant herein vide sale deed dated10.07.2008. The appellant herein – purchaser who purchased the suitproperty during the pendency of the suit filed an application in the pendingsuit under Order 1 Rule 10 of the CPC for impleadment as a defendantin the suit. It was the case on behalf of the appellant herein that he haspurchased the suit property and is a necessary and proper party to thesuit as he has a direct interest in the suit property. That by an orderdated 5.11.2012, the learned trial Court allowed the said application anddirected the original plaintiffs to join the appellant as a defendant in thesuit.

2.1 Feeling aggrieved and dissatisfied with the order passed bythe learned trial Court dated 5.11.2012 allowing the application andpermitting the appellant herein to be joined as a party defendant in thesuit filed by the original plaintiffs – respondent nos. 2 & 3 herein,respondent nos. 2 & 3 herein filed writ petition No. 856/2012 before theHigh Court of Chhattisgarh. By the impugned judgment and order dated3.7.2013, the High Court has allowed the said writ petition and has quashedand set aside the order passed by the learned trial Court allowing theimpleadment application preferred by the appellant herein by holdingthat as regards the relief claimed against the original defendants and asno relief has been claimed against the appellant herein, the appellantcannot be said to be a necessary or formal party. That thereafter theappellant preferred a review application which came to be dismissed.Hence, the present appeals by way of special leave petitions.

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A3. Shri Prashanto Chandra Sen, learned Senior Advocate hasappeared on behalf of the appellant and Shri M. Shoeb Alam, learnedAdvocate has appeared on behalf of the original plaintiffs.

3.1 Learned Senior Advocate appearing on behalf of the appellanthas vehemently submitted that once the learned trial Court allowed theBimpleadment application submitted by the appellant herein under Order1 Rule 10 of the CPC holding that the appellant is a necessary andproper party, the High Court, in exercise of powers under Article 227 ofthe Constitution of India, ought not to have interfered with the same.

3.2 It is vehemently submitted by the learned Senior AdvocateCappearing on behalf of the appellant that as such the appellant haspurchased the suit property from the same vendor and, in fact, theappellant was prior agreement to sell holder and to protect the interestof the appellant the appellant is a necessary and proper party. It issubmitted that therefore the learned trial Court rightly allowed theimpleadment application submitted by the appellant.D

3.3 Making the above submissions and relying upon the decisionof this Court in the case of Robin Ramjibhai Patel v. Anandibai Rama@ Rajaram Pawar, reported in (2018) 15 SCC 614 and the decisionof the Bombay High Court in the case of Shri Swastik Developers vs.Saket Kumar Jain, reported in 2014 (2) Mh. L.J 968, it is prayed toEallow the present appeals and quash and set aside the impugned judgmentsand orders passed by the High Court and restore the order passed bythe learned trial Court.

4. The present appeals are vehemently opposed by Shri M. ShoebAlam, learned Advocate appearing on behalf of the original plaintiffs. ItFis vehemently submitted that in fact the appellant purchased the suitproperty during the pendency of the suit and that too in violation of theinjunction granted by the learned trial Court. It is submitted that as suchthe prior agreement to sell upon which reliance has been placed by theappellant is a concocted and forged one. It is submitted that in any caseGthe appellant cannot be impleaded as a defendant in a suit filed by theoriginal plaintiffs for specific performance of the agreement to sell/contract to which the appellant is not a party. It is submitted that theoriginal plaintiffs are the dominus litis and without their consent nobodycan be permitted to be impleaded as defendant.

4.1 It is vehemently submitted that as such the issue involved inthe present case is squarely covered against the appellant in view of thedecision of this Court in the case of Kasturi v. Iyyamperumal, reportedin (2005) 6 SCC 733.

4.2 Insofar as the reliance placed upon the decision of this Courtin the case of Robin Ramjibhai Patel (supra) as well as the decision ofthe Bombay High Court in the case of Shri Swastik Developers(supra) by the learned Senior Advocate appearing on behalf of theappellant, it is vehemently submitted by Shri M. Shoeb Alam, learnedAdvocate appearing on behalf of the original plaintiffs that the saiddecisions shall not be applicable to the facts of the case on hand. It issubmitted that in the aforesaid two cases, it was an application by theoriginal plaintiff to implead the subsequent purchaser who purchasedthe property during the pendency of the suits. It is submitted that as heldby this Court in the case of Kasturi(supra), it is for the plaintiff/plaintiffsto implead a particular person/persons as defendant/defendants and ifhe/they does not/do not join then it will be at the risk of the plaintiff/plaintiffs. It is further submitted that the plaintiff cannot be forced toimplead any other person, more particularly who is not a party to thecontract, against the wish of the plaintiff. It is submitted that thereforethe aforesaid two decisions, upon which reliance has been placed by thelearned Senior Advocate appearing on behalf of the appellant, shall notbe applicable to the facts of the case on hand. It is submitted that assuch the decision of this Court in the case of Kasturi (supra) clinchesthe issue and shall be squarely applicable to the facts of the case onhand.

4.3 Making the above submissions and relying upon the decisionof this Court in the case of Kasturi(supra), it is prayed to dismiss thepresent appeals.

5. We have heard the learned counsel for the respective partiesat length.

5.1 At the outset, it is required to be noted that the original plaintiffsfiled the suit against the original owner – vendor – original defendantno.1 for specific performance of the agreement to sell with respect tosuit property dated 3.5.2005. It is an admitted position that so far asagreement to sell dated 3.5.2005 of which the specific performance issought, the appellant is not a party to the said agreement to sell. It A

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Aappears that during the pendency of the aforesaid suit and though therewas an injunction against the original owner – vendor restraining himfrom transferring and alienating the suit property, the vendor executedthe sale deed in favour of the appellant by sale deed dated 10.07.2008.After a period of approximately four years, the appellant filed anapplication before the learned trial Court under Order 1 Rule 10 of theBCPC for his impleadment as a defendant. The appellant claimed theright on the basis of the said sale deed as well as the agreement to selldated 31.3.2003 alleged to have been executed by the original vendor.The said application was opposed by the original plaintiffs. The learnedtrial Court despite the opposition by the original plaintiffs allowed theCsaid application which has been set aside by the High Court by theimpugned judgment and order. Thus, it was an application under Order1 Rule 10 of the CPC by a third party to the agreement to sell betweenthe original plaintiffs and original defendant no.1 (vendor) and the saidapplication for impleadment is/was opposed by the original plaintiffs.Therefore, the short question which is posed for consideration beforeDthis Court is, whether the plaintiffs can be compelled to implead a personin the suit for specific performance, against his wish and more particularlywith respect to a person against whom no relief has been claimed byhim?

5.2 An identical question came to be considered before this CourtEin the case of Kasturi (supra) and applying the principle that the plaintiffis the dominus litis, in the similar facts and circumstances of the case,this Court observed and held that the question of jurisdiction of the courtto invoke Order 1 Rule 10 CPC to add a party who is not made a partyin the suit by the plaintiff shall not arise unless a party proposed to beFadded has direct and legal interest in the controversy involved in the suit.It is further observed and held by this Court that two tests are to besatisfied for determining the question who is a necessary party. Thetests are – (1) there must be a right to some relief against such party inrespect of the controversies involved in the proceedings; (2) no effectivedecree can be passed in the absence of such party. It is further observedGand held that in a suit for specific performance the first test can beformulated is, to determine whether a party is a necessary party theremust be a right to the same relief against the party claiming to be anecessary party, relating to the same subject matter involved in theproceedings for specific performance of contract to sell. It is furtherH

observed and held by this Court that in a suit for specific performance ofthe contract, a proper party is a party whose presence is necessary toadjudicate the controversy involved in the suit. It is further observedand held that the parties claiming an independent title and possessionadverse to the title of the vendor and not on the basis of the contract, arenot proper parties and if such party is impleaded in the suit, the scope ofthe suit for specific performance shall be enlarged to a suit for title andpossession, which is impermissible. It is further observed and held thata third party or a stranger cannot be added in a suit for specificperformance, merely in order to find out who is in possession of thecontracted property or to avoid multiplicity of the suits. It is furtherobserved and held by this Court that a third party or a stranger to acontract cannot be added so as to convert a suit of one character into asuit of different character. In paragraphs 15 and 16, this Court observedand held as under:

“15. As discussed hereinearlier, whether Respondents 1 and 4to 11 were proper parties or not, the governing principle fordeciding the question would be that the presence of Respondents1 and 4 to 11 before the court would be necessary to enable iteffectually and completely to adjudicate upon and settle all thequestions involved in the suit. As noted hereinearlier, in a suit forspecific performance of a contract for sale, the issue to be decidedis the enforceability of the contract entered into between theappellant and Respondents 2 and 3 and whether contract wasexecuted by the appellant and Respondents 2 and 3 for sale of thecontracted property, whether the plaintiffs were ready and willingto perform their part of the contract and whether the appellant isentitled to a decree for specific performance of a contract forsale against Respondents 2 and 3. It is an admitted position thatRespondents 1 and 4 to 11 did not seek their addition in the suit onthe strength of the contract in respect of which the suit for specificperformance of the contract for sale has been filed. Admittedly,they based their claim on independent title and possession of thecontracted property. It is, therefore, obvious as noted hereinearlierthat in the event, Respondents 1 and 4 to 11 are added or impleadedin the suit, the scope of the suit for specific performance of thecontract for sale shall be enlarged from the suit for specificperformance to a suit for title and possession which is not A

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permissible in law. In the case of Vijay Pratap v. Sambhu SaranSinha [(1996) 10 SCC 53] this Court had taken the same viewwhich is being taken by us in this judgment as discussed above.This Court in that decision clearly held that to decide the right,title and interest in the suit property of the stranger to the contractis beyond the scope of the suit for specific performance of thecontract and the same cannot be turned into a regular title suit.Therefore, in our view, a third party or a stranger to the contractcannot be added so as to convert a suit of one character into asuit of different character. As discussed above, in the event anydecree is passed against Respondents 2 and 3 and in favour ofthe appellant for specific performance of the contract for sale inrespect of the contracted property, the decree that would be passedin the said suit, obviously, cannot bind Respondents 1 and 4 to 11.It may also be observed that in the event, the appellant obtains adecree for specific performance of the contracted property againstRespondents 2 and 3, then, the Court shall direct execution ofdeed of sale in favour of the appellant in the event Respondents 2and 3 refusing to execute the deed of sale and to obtain possessionof the contracted property he has to put the decree in execution.As noted hereinearlier, since Respondents 1 and 4 to 11 were notparties in the suit for specific performance of a contract for saleof the contracted property, a decree passed in such a suit shall notbind them and in that case, Respondents 1 and 4 to 11 would be atliberty either to obstruct execution in order to protect theirpossession by taking recourse to the relevant provisions of CPC,if they are available to them, or to file an independent suit fordeclaration of title and possession against the appellant orRespondent 3. On the other hand, if the decree is passed in favourof the appellant and sale deed is executed, the stranger to thecontract being Respondents 1 and 4 to 11 have to be sued fortaking possession if they are in possession of the decretal property.

16. That apart, from a plain reading of the expression used insub-rule (2) Order 1 Rule 10 CPC “all the questions involved inthe suit” it is abundantly clear that the legislature clearly meantthat the controversies raised as between the parties to the litigationmust be gone into only, that is to say, controversies with regard to the right which is set up and the relief claimed on one side anddenied on the other and not the controversies which may arisebetween the plaintiff-appellant and the defendants inter se orquestions between the parties to the suit and a third party. In ourview, therefore, the court cannot allow adjudication of collateralmatters so as to convert a suit for specific performance of contractfor sale into a complicated suit for title between the plaintiff-appellant on one hand and Respondents 2 and 3 and Respondents1 and 4 to 11 on the other. This addition, if allowed, would lead toa complicated litigation by which the trial and decision of seriousquestions which are totally outside the scope of the suit wouldhave to be gone into. As the decree of a suit for specificperformance of the contract for sale, if passed, cannot, at all,affect the right, title and interest of Respondents 1 and 4 to 11 inrespect of the contracted property and in view of the detaileddiscussion made hereinearlier, Respondents 1 and 4 to 11 wouldnot, at all, be necessary to be added in the instant suit for specificperformance of the contract for sale.”

That thereafter, after observing and holding as above, this Courtfurther observed that in view of the principle that the plaintiff who hasfiled a suit for specific performance of the contract to sell is the dominuslitis, he cannot be forced to add parties against whom, he does not wantto fight unless it is a compulsion of the rule of law. In the aforesaiddecision in the case of Kasturi(supra), it was contended on behalf ofthe third parties that they are in possession of the suit property on thebasis of their independent title to the same and as the plaintiff had alsoclaimed the relief of possession in the plaint and the issue with regard topossession is common to the parties including the third parties, andtherefore, the same can be settled in the suit itself. It was furthersubmitted on behalf of the third parties that to avoid the multiplicity ofthe suits, it would be appropriate to join them as party defendants. ThisCourt did not accept the aforesaid submission by observing that merelyin order to find out who is in possession of the contracted property, athird party or a stranger to the contract cannot be added in a suit forspecific performance of the contract to sell because they are notnecessary parties as there was no semblance of right to some reliefagainst the party to the contract. It is further observed and held that in AB

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Aa suit for specific performance of the contract to sell the lis between thevendor and the persons in whose favour agreement to sell is executedshall only be gone into and it is also not open to the Court to decidewhether any other parties have acquired any title and possession of thecontracted property. It is further observed and held by this Court in theaforesaid decision that if the plaintiff who has filed a suit for specificBperformance of the contract to sell, even after receiving the notice ofclaim of title and possession by other persons (not parties to the suit andeven not parties to the agreement to sell for which a decree for specificperformance is sought) does not want to join them in the pending suit, itis always done at the risk of the plaintiff because he cannot be forced toCjoin the third parties as party-defendants in such suit. The aforesaidobservations are made by this Court considering the principle that plaintiffis the dominus litis and cannot be forced to add parties against whomhe does not want to fight unless there is a compulsion of the rule of law.Therefore, considering the decision of this Court in the case of Kasturi (supra), the appellant cannot be impleaded as a defendant in the suitDfiled by the original plaintiffs for specific performance of the contractbetween the original plaintiffs and original defendant no.1 and in a suitfor specific performance of the contract to which the appellant is not aparty and that too against the wish of the plaintiffs. The plaintiffs cannotbe forced to add party against whom he does not want to fight. If heEdoes so, in that case, it will be at the risk of the plaintiffs.

6. Now so far as the reliance placed upon the decision of thisCourt in the case of Robin Ramjibhai Patel (supra) and the decisionof the Bombay High Court in the case of Shri Swastik Developers(supra), relied upon by the learned Senior Advocate for the appellant isFconcerned, the aforesaid decisions shall not be applicable to the facts ofthe case on hand as in both the aforesaid cases, it was the plaintiff whosubmitted an application to implead the third parties/subsequentpurchasers who claimed title under the vendor of the plaintiff. Positionwill be different when the plaintiff submits an application to implead thesubsequent purchaser as a party and when the plaintiff opposes such anGapplication for impleadment. This is the distinguishing feature in theaforesaid two decisions and in the decision of this Court in the case ofKasturi(supra).

7. In view of the above and for the reasons stated above, we arein complete agreement with the view taken by the High Court. NoH

interference of this Court is called for. The appellant cannot be impleadedas a defendant in the suit for specific performance of the contractbetween the original plaintiffs and original defendant no.1 against thewish of the plaintiffs. Accordingly, the present appeals stand dismissed.However, in the facts and circumstances of the case, there shall be noorder as to costs.

Ankit Gyan

Appeals dismissed.

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