HARI MOHAN SHARMA & ANR. versus CHARANJEET SINGH REKHI & ORS. ETC. on 16 November 2018

324 SUPREME COURT REPORTS [2018] 14 S.C.R.[2018] 14 S.C.R. 324

A

HARI MOHAN SHARMA & ANR.

v.

CHARANJEET SINGH REKHI & ORS. ETC.(Civil Appeal Nos. 11029-30 of 2018)

NOVEMBER 16, 2018

B

[R.F. NARIMAN AND NAVIN SINHA, JJ.]

Party/Parties: Necessary party – Suit for specific performance– Determination of correct defendants – Issue arose whether oneCS and his wife who are defendant no. 2 & 3 in one group of SLPand defendant no. 1 & 2 in other group of SLP are persons who doCnot purport to be who they say they are – I.As had been filed by twoother CS one belonging to Moradabad and other to Uttarakhandstating that each one of them are defendant no. 1 and 2 anddefendant no. 2 and 3 respectively in the suits – Single Judge of theHigh Court held that a question of mistaken identity cannot be goneDinto in a specific performance suit, and that the plaintiff does notclaim anything against the persons who have filed the I.As but onlyagainst one CS, who belongs to Delhi (since deceased), and hiswife MK who is in US – Division Bench set aside the order – Onappeal held: Plaintiff in both the suits for specific performance isdominus litus and has chosen CS who resides in Delhi (since deceased)Eand his wife MK as persons against whom the lis exists – It waspleaded that the persons mentioned defendant nos. 1 & 2 anddefendant nos. 2 & 3 in the two suits are, in fact, the personsmentioned in the two I.As – Plaintiff has no lis against such persons– Thus, the persons in the I.As are neither necessary nor properFparties in the present adjudication – Order passed by the DivisionBench is set aside and that of the Single Judge of the High Court isrestored.

Sumtibai & Others v. Paras Finance Co. MankanwarW/o Parasmal Chordia (D) & Ors. [2007] 10 SCR 543

–G distinguished.

Kasturi v. Iyyamperumal and Others (2005) 6 SCC 733– referred to.

Case Law Reference

[2007] 10 SCR 543distinguishedPara 7H(2005) 6 SCC 733referred to324Para 7

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 11029-11030 of 2018.

From the Judgment and Order dated 07.07.2014 of the High Courtof Delhi at New Delhi in FAO(OS) Nos.213/2013 and 235/2013.

With

Civil Appeal Nos. 11031-11033 of 2018.

Parag P. Tripathi, Sr. Adv., Mrs. Neelima Tripathi, K. V. Mohan,Ms. Gunjan Singh, Joydip Bhattacharya, Hitesh Kumar, Lalltaksh Joshi,Abid Ali Beeran P, M. Qyamuddin, Wajeeh Shafiq, Mukesh K. Verma,Rajeev Kumar, Manu Parkash Upadhyay, Anis Ahmed Khan, Advs. forthe appearing parties.

The Judgment of the Court was delivered by

R. F. NARIMAN, J. 1. Leave granted.

2. In both these cases, suits for specific performance have beenfiled. The narrow question that arises is whether one Charanjeet SinghRekhi and his wife - Manjit Kaur, who are Defendant Nos. 2 & 3 in SLP(C) Nos. 32725-32726 of 2014 and Defendant Nos. 1 & 2 in SLP (C)Nos. 28958-28960/2014 are persons who do not purport to be who theysay they are. This arises out of I.As that have been filed by two otherCharanjeet Singh Rekhis’, one belonging to Moradabad and the otherbelonging to Uttarakhand, stating that each one of them are DefendantNos. 1 & 2 and Defendant Nos. 2 & 3 respectively in these suits, andconsidering that it should conclusively be determined as to who the correctdefendants are, they are necessary parties to both specific performancesuits.

3. The learned Single Judge of the High Court of Delhi, by judgmentdated 05.03.2013, held that a question of mistaken identity cannot begone into in a specific performance suit, as the persons who have filedthe I.As are either necessary or proper parties to the suits for the reasonthat the plaintiff does not claim anything against them but only againstone Charanjeet Singh Rekhi, who belongs to Delhi, and who has sincedied. His wife, Manjit Kaur, is no longer in India and resides in theUnited States. Both the I.As were, therefore, dismissed.

4. In an appeal filed to the Division Bench, this judgment wasreversed stating:

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326 SUPREME COURT REPORTS [2018] 14 S.C.R.

A“35. It is contended that the appellants are not parties to thecontract and therefore, are not necessary parties in a suit forspecific performance of the contract. In our view, treating theappellants as separate from Charanjeet Singh Rekhi & ManjitKaur Rekhi would be an erroneous assumption as their applicationunder Order 1 Rule 10(2) is premised on the basis that they areBCharanjeet Singh Rekhi & Manjit Kaur Rekhi or are claimingthrough them. Indisputably, Charanjeet Singh Rekhi & ManjitKaur are parties to the contract which is sought to be specificallyenforced. The appellants may not have signed the contract butare claiming to be the persons who are named therein. In thisCsituation, would it be open for the respondents to contend that theappellants who claim to be Charanjeet Singh Rekhi & Manjit KaurRekhi are not parties to the contract. We think not. The veryassumption that the parties to the contract are persons other thanthe appellants or their predecessors is the controversy that hasbeen raised by the appellants. The only question that thus arisesDis whether this controversy has to be decided in the present suitsor whether the appellants are to be relegated to filing separatesuit(s). It is obvious that this controversy would have to be settledin order that the controversy with regard to any agreement enteredinto by the Charanjeet Singh Rekhi & Manjit Kaur Rekhi can beEdecided. Thus, in our view, it would be apposite if this controversyis decided in the present suit in order that all the disputes in thepresent suit can be effectively adjudicated.”

5. Having heard learned counsel for the parties, we are of theview that the Single Judge is correct. The plaintiff in both the suits forFspecific performance is dominus litus and has chosen Charanjeet SinghLekhi who resides in Delhi (since deceased) and his wife Manjit Kauras persons against whom the lis exists.

6. It is clear that if ultimately it is found that there is no cause ofaction against either of these people, his suit will fail; or if it is found, inGexecution proceedings, that the aforesaid persons have nothing to dowith the agreement to sell in question, such execution proceedings willfail. That is the risk that the plaintiff takes in these matters. It is clear,therefore, that persons who state that they happen to be DefendantNos. 1 & 2 and Defendant Nos. 2 & 3 respectively in the two suits arepersons who have to take independent proceedings against the saidH

defendants and/or the plaintiff if they allege collusion between the plaintiffand the defendants.

7. Learned counsel appearing on behalf of the respondents hassupported the impugned judgment and has cited to us a judgment dated04.10.2007 in Civil Appeal No. 117 of 2001 titledSumtibai & Othersvs.Paras Finance Co. Mankanwar W/o Parasmal Chordia (D) & Ors.in which this Court has stated that there can be no absolute propositionthat whenever a suit for specific performance is filed, a third party cannever be impleaded in that suit. These observations were made in thecontext of a sale deed that had been entered into with one Kapoor Chandand his two sons. After Kapoor Chand died, his two sons wished to takeup certain additional pleas in an additional written statement sought to befiled by them. This was ultimately allowed by this Court, stating that theregistered sale deed itself shows that the purchaser was not KapoorChand alone, but also his sons as co-owners. Hence, prima facie ,thesons of Kapoor Chand are also co-owners of the property in disputeand, therefore, have some semblance of title. It was in this fact situationthat the judgment in Kasturivs. Iyyamperumal and Others, (2005) 6SCC 733 was distinguished.

8. We are of the view that the aforesaid judgment has no applicationon the facts of the present case. The case pleaded before us is that theperson mentioned as Defendant Nos. 1 & 2 and Defendant Nos. 2 & 3in the two suits are, in fact, the persons mentioned in the two I.As. Thisbeing clear, the plaintiff in the specific performance suit has no lis againstsuch persons, and have chosen to have a lis only against DefendantNos. 1 & 2 and 2 & 3 (original).

9. This being the case, it is clear that the persons in the I.As areneither necessary nor proper parties in the present adjudication.

10. The appeals are, accordingly, allowed and the Division Benchjudgment is set aside and restored to that of the single Judge.

Nidhi Jain

Appeals allowed.

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