Civil Revision No.3010 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.3010 of 2011(O&M) Date of Decision: September 16, 2011 Nawab Singh .....Petitioner v. Ompal Singh and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.S.D.Bansal, Advocate for the petitioner. Mr.Surender Dhull, Advocate for respondents no.1 and 2. ..... RAM CHAND GUPTA, J. C.M.Nos.11941-42-CII of 2011 Requests for placing on record Annexures P1 to P7. The same are taken on record subject to all just exceptions. Both the applications stand disposed of accordingly. Civil Revision No.3010 of 2011 Petitioner has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India for setting aside order dated 28.2.2011, passed by learned Additional Civil Judge, (Senior Division), Palwal, vide which application filed by by him under Order I Rule 10 read with Section 151 of the Code of Civil Procedure (hereinafter to be referred as the `Code') for impleading him as a party in a suit filed by respondent no.1-plaintiff against respondents-defendants no.1 and 2, was dismissed. I have heard learned counsel for the petitioner-applicant, Civil Revision No.3010 of 2011(O&M) -2- learned counsel for contesting respondents and have gone through the whole record carefully including the impugned order passed by learned trial Court. Briefly stated, suit for possession by way of partition with consequential relief of permanent injunction was filed by respondent no.1- plaintiff against respondents -defendants no.1 and 2. Plea has been taken that the property in dispute is joint of the parties as the same was jointly purchased by respondent no.1-plaintiff, defendant no.1 and father of defendant no.2, vide registered sale deed executed and registered on 26.5.1979 and that after purchasing the said property, a house was constructed by all the co-owners on the said plots bearing Nos.259 and 260 and the property now bears house No.6289/9 in the record of Municipal Council, Palwal. On threat being raised by defendants to dispossess the plaintiff and to demolish the entire house in dispute and to raise illegal and unauthorised construction, the present suit has been filed. Suit was contested by respondent-defendant no.2 by taking the plea that neither the plaintiff, nor defendant no.1 is having right in the property in dispute and rather he is in possession of the property in dispute to the extent of 1/3rd share and that his father is owner in possession of the remaining 2/3rd share. Plea has been taken that plaintiff and defendant no.1 already relinquished their 1/3rd share each in the house in dispute in favour of his father Nawab Singh in the year 2004. Hence, an application was also filed by present applicant, who is father of respondent-defendant no.2 under Order I Rule 10 of the Code for impleading him as a party in the suit on the plea that he is having 2/3rd share in the property in dispute and plaintiff and defendant no.1 had already relinquished their share in the property in Civil Revision No.3010 of 2011(O&M) -3- dispute in his favour in the year 2004. His request was declined by learned trial Court by observing that transfer of property can be done only by way of written document like sale deed, relinquishment deed and gift deed etc. and that however, no such document has been produced. It has also been observed that admittedly applicant transferred his share in the property in dispute in favour of his son, i.e., defendant no.2 on 22.7.2008 by way of registered sale deed and that in the said registered sale deed also it has not been averred that he is absolute owner of the suit property and that he was transferring only his 1/3rd share in favour of his son. The said sale deed is dated 22.7.2008, i.e., much after the alleged settlement in the year 2004. Hence, it has been observed that applicant is neither a necessary nor a proper party for the decision of present suit. It has been contended by learned counsel for the petitioner- applicant that respondent-plaintiff and respondent-defendant no.1 relinquished their rights in the property in dispute by virtue of a writing Annxures P3 and receipts Annexures P4 and P5 in the year 2004 and hence, they are having no right in the property in dispute and hence as he is co- owner to the extent of 2/3rd share in the property in dispute, he is a necessary and proper party to be impleaded. It has also been contended that the rule that plaintiff is a dominus litus is not an absolute rule and that if a person is a necessary and proper party for decision of controversy in dispute, he should be impleaded as a party. He has placed reliance upon a judgment rendered by a coordinate Bench of this Court in Smt.Vidya Devi v. Shruti Choudhary and others, 2009(5) RCR (Civil) 751, another judgment rendered by another coordinate Bench of this Court in Rajiv Goel v. Sohan Lal Khosla and another, 2010(2) Civil Court Cases 334 and a judgment Civil Revision No.3010 of 2011(O&M) -4- rendered by Jharkhand High Court in Md.Sabir Ansari v. Sada Nanda Mandal and others 2010(5) RCR (Civil) 49. On the other hand, it has been contended by learned counsel for the respondent-plaintiff that applicant is neither a necessary nor a proper party for decision of present suit, which has been filed for possession by way of partition against the other co-owners of the property in dispute. It has been contended that admittedly the plots on which house in dispute was constructed was purchased in the joint names of plaintiff, defendant no.1 and the present applicant, who is father of defendant no.2 and however, later on applicant sold his share vide registered sale deed in favour of his son and hence, as his son stepped into his shoes, he has been impleaded as a party in the present suit. It has been contended that a fraud has been committed by present applicant by forging some documents, i.e., Annexures P3 to P5, which have been placed on record for the first time before this Court as no such documents were placed on the file of learned trial Court at the time of decision of application vide impugned order. It is also contended that criminal proceedings have also been initiated against the present petitioner by respondent-plaintiff for committing forgery of Annexures P3 to P5. It is further contended that rights in the property cannot be relinquished by virtue of mere alleged writing on a simple piece of paper. It has also been contended that moreover no step was taken by present applicant to assert his right in view of alleged writing dated 15.8.2004 and rather the said alleged writing was produced for the first time before this Court. It is also contended that even when he transferred his 1/3rd share of the property in dispute in favour of his son vide registered sale deed dated 22.7.2008, it has not been mentioned that he is owner of the Civil Revision No.3010 of 2011(O&M) -5- entire property and that he is transferring only his 1/3rd share in the said property and hence, it is contended that present petitioner-applicant is not at all a necessary party for decision of the present suit which is for partition amongst the co-sharers and that applicant may take any other legal remedy available to him under the law. At the very outset, it would be appropriate to refer to provision of Order I Rule 10 of the Code, which reads as under:- “10. Suit in name of wrong plaintiff.-(1)Where a suit has been instituted in the name of the wrong persons 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) Court may strike out or add parties.- 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 Civil Revision No.3010 of 2011(O&M) -6- added. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (4) Where defendant added, plaint to be amended.- Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.” The said provision of law has been interpreted by Bench of three Hon'ble Judges of Hon'ble Apex Court in Kasturi v. Iyyamperumal and others, 2005(4) JT 565: 2005(2) RCR (Civil) 691: 2005(3) PLR 326: 2005(2) CivCC 379: 2005 AIR (SC) 2813 and it was observed as under:- “6. In our view, a bare reading of this provision namely, second part of Order 1 Rule 10 sub-rule (2) of the CPC would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead their legal representatives as also a person who had purchased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the Civil Revision No.3010 of 2011(O&M) -7- parties. A purchaser is a necessary party as he would be affected if he had purchased with notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are - (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings (2) no effective decree can be passed in the absence of such party. 7 to 9 XX XX XX 10. As noted herein earlier, 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 Civil Revision No.3010 of 2011(O&M) -8- 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 Vs. Small 1834 (40) English Report 848 made the following observations: "It is not disputed that, generally, to a bill for a specific performance of a contract for 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 in 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 ]'” It was further observed by Hon'ble Apex Court in Kasturi's Civil Revision No.3010 of 2011(O&M) -9- case (supra) that Court cannot allow adjudication of collateral matters so as to convert a suit for specific performance of contract for sale into a complicated suit for title. Relevant paragraph of the same reads as under:- “15. That apart, from a plain reading of the expression used in sub-rule (2) Order 1 Rule 10 of the CPC "all the questions involved in the suit" it is abundantly clear that the legislature clearly meant that the controversies raised as between the parties to the litigation must 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 and denied on the other and not the controversies which may arise between the plaintiff/appellant and the defendants inter se or questions between the parties to the suit and a third party. In our view, therefore, the court cannot allow adjudication of collateral matters so as to convert a suit for specific performance of contract for sale into a complicated suit for title between the plaintiff/appellant on one hand and Respondent Nos.2 & 3 and Respondent Nos. 1 and 4 to 11 on the other. This addition, if allowed, would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit would have to be gone into. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of the respondent Nos.1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made Civil Revision No.3010 of 2011(O&M) -10- hereinearlier, the respondent Nos.1 and 4 to 11 would not, at all, be necessary to be added in the instant suit for specific performance of the contract for sale.” In subsequent judgment rendered in Mumbai International Airport Pvt.Ltd. v. Regency Convention Centre & Hotels Pvt.Ltd. and others, 2010 AIR (SC) 3109, Hon'ble Apex Court while dealing with Order I Rule 10 of the Code observed as under:- “12. Let us consider the scope and ambit of Order I of Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non- party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo moto or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10 (2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice. This Court in Ramji Dayawala & Sons (P) Ltd. vs. Invest Import - 1981 (1) SCC 80, reiterated the Civil Revision No.3010 of 2011(O&M) -11- classic definition of `discretion' by Lord Mansfield in R. vs. Wilkes - 1770 (98) ER 327, that `discretion' when applied to courts of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, `but legal and regular'. We may now give some illustrations regarding exercise of discretion under the said Sub-Rule. 12.1) If a plaintiff makes an application for impleading a person as a defendant on the ground that he is a necessary party, the court may implead him having regard to the provisions of Rules 9 and 10(2) of Order I. If the claim against such a person is barred by limitation, it may refuse to add him as a party and even dismiss the suit for non-joinder of a necessary party. 12.2) If the owner of a tenanted property enters into an agreement for sale of such property without physical possession, in a suit for specific performance by the purchaser, the tenant would not be a necessary party. But if the suit for specific performance is filed with an additional prayer for delivery of physical possession from the tenant in possession, then the tenant will be a necessary party in so far as the prayer for actual possession. 12.3) If a person makes an application for being impleaded contending that he is a necessary party, and if Civil Revision No.3010 of 2011(O&M) -12- the court finds that he is a necessary party, it can implead him. If the plaintiff opposes such impleadment, then instead of impleading such a party, who is found to be a necessary party, the court may proceed to dismiss the suit by holding that the applicant was a necessary party and in his absence the plaintiff was not entitled to any relief in the suit. 12.4) If an application is made by a plaintiff for impleading someone as a proper party, subject to limitation, bonfides etc., the court will normally implead him, if he is found to be a proper party. On the other hand, if a non-party makes an application seeking impleadment as a proper party and court finds him to be a proper party, the court may direct his addition as a defendant; but if the court finds that his addition will alter the nature of the suit or introduce a new cause of action, it may dismiss the application even if he is found to be a proper party, if it does not want to widen the scope of the specific performance suit; or the court may direct such applicant to be impleaded as a proper party, either unconditionally or subject to terms. For example, if `D' claiming to be a co-owner of a suit property, enters into an agreement for sale of his share in favour of `P' representing that he is the co-owner with half share, and `P' files a suit for specific performance of the said agreement of sale in respect of the undivided half share, Civil Revision No.3010 of 2011(O&M) -13- the court may permit the other co-owner who contends that `D' has only one-fourth share, to be impleaded as an additional defendant as a proper party, and may examine the issue whether the plaintiff is entitled to specific performance of the agreement in respect of half a share or only one-fourth share; alternatively the court may refuse to implead the other co-owner and leave open the question in regard to the extent of share of the vendor- defendant to be decided in an independent proceeding by the other co-owner, or the plaintiff; alternatively the court may implead him but subject to the term that the dispute, if any, between the impleaded co-owner and the original defendant in regard to the extent of the share will not be the subject matter of the suit for specific performance, and that it will decide in the suit, only the issues relating to specific performance, that is whether the defendant executed the agreement/contract and whether such contract should be specifically enforced. In other words, the court has the discretion to either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party. 13. If the principles relating to impleadment, are kept in view, then the purported divergence in the two Civil Revision No.3010 of 2011(O&M) -14- decisions will be found to be non-existent. The observations in Kasturi and Sumtibai are with reference to the facts and circumstances of the respective case. In Kasturi, this Court held that in suits for specific performance, only the parties to the contract or any legal representative of a party to the contract, or a transferee from a party to the contract are necessary parties. In Sumtibai, this Court held that a person having semblance of a title can be considered as a proper party. Sumtibai did not lay down any proposition that anyone claiming to have any semblance of title is a necessary party. Nor did Kasturi lay down that no one, other than the parties to the contract and their legal representatives/transferees, can be impleaded even as a proper party. 14. On a careful examination of the facts of this case, we find that the appellant is neither a necessary party nor a proper party. As noticed above, the appellant is neither a purchaser nor the lessee of the suit property and has no right, title or interest therein. First respondent -plaintiff in the suit has not sought any relief against the appellant. The presence of the appellant is not necessary for passing an effective decree in the suit for specific performance. Nor is its presence necessary for complete and effective adjudication of the matters in issue in the suit for specific performance filed by the Civil Revision No.3010 of 2011(O&M) -15- first respondent-plaintiff against AAI. A person who expects to get a lease from the defendant in a suit for specific performance in the event of the suit being dismissed, cannot be said to be a person having some semblance of title, in the property in dispute.” Hence, in view of this legal background, this Court is to see as to whether petitioner-applicant is a necessary party to be impleaded in the present suit. Admittedly, property on which house in dispute was constructed was purchased by way of a registered sale deed in the names of three brothers, i.e., respondent no.1-plaintiff, respondent-defendant no.1 and father of defendant no.2, i.e., the present petitioner-applicant. It is also admitted case that applicant relinquished his 1/3rd share in the property in dispute in favour of his son, i.e., respondent-defendant no.2 vide a registered instrument. Hence, prima facie it is shown that only plaintiff and defendants no.1 and 2 are owners in possession of the property in dispute to the extent of 1/3rd share each and the suit for partition has been filed by respondent-plaintiff against the other co-owners. Respondent-defendant no.2 has stepped into shoes of his father, i.e., present petitioner-applicant. Present petitioner-applicant has claimed his right in the property in