1 IN THE HIGH COURT OF BOMBAY AT GOA Writ Petition No.378 of 2010 Shri Udaisingh Wamanrao Rane Sardessai, aged 55 years, resident of S-3, Rajvihar, Aquem-Alto, Margao, Goa. … Petitioner v e r s u s 1. Shri Gautam Ramanbai Patel, son of Ramanbai Patel, aged 56 years, businessman, Indian National, residing at “Abhijit” Plot No.B-9, N.S. Road, Kapole Co-op. Housing Society Ltd., J.V. P.D. Scheme, Juhu, Mumbai- 400049. 2. Shri Pratapsingh Wamanrao Rane Sardessai, son of late Wamanrao Rane Sardessai, aged 63 years, residing at house no.872/47, Vijaynagar, Alto-Utorda, Porvorim, Bardez, Goa. 3. Smt. Vijaya Pratapsinha Rane Sardessai, wife of Pratapsinha Wamanrao Rane Sardessai, aged 59 years, residing at house no.872/47, Vijaynagar, Alto-Uttorda, Porvorim, Bardez, Goa. 2 4. Shri Eric Sequeira, son of late Joseph Sequeira, aged 56 years, residing at Ribandar, Ilhas, Goa. …. Respondents Shri C. Mascarenhas, Advocate for the Petitioner. Mr. S.G. Dessai, Senior Advocate with Mr. Shivan Dessai, Advocate for Respondent no.1. Mr. S.D. Lotlikar, Senior Advocate with Mr. P. Lotlikar, Advocate for Respondent nos. 2 and 3. Coram; A. P. Lavande, J Reserved on : 3/5/2011. Pronounced on : 8/6/2011. JUDGMENT: Rule. By consent heard forthwith. By this petition under Article 227 of the Constitution of India, the petitioner takes exception to the order dated 20/11/1999 passed by the Civil Judge, Senior Division, Bicholim in Special Civil Suit No.33/2008 by which application filed by the petitioner under Order 1 Rule 10(2) of C.P.C for impleadment as defendant in the suit has been rejected. 3 2. Respondent no.1 filed the above suit against respondent nos.2 to 4 and six other defendants seeking the following reliefs: (a) That it may be declared that there exists a valid and binding contract between the plaintiff and the defendants nos.1 and 2 for sale of the suit plots more particularly described in paragraph 6(a) & (b) of the Plaint and that the defendant nos.1 and 2 are not entitled to in any manner terminate and or resile/back out from the same. (b) It be further declared that the purported termination contained in the said letter dated 28/4/2007 being Exhibit “D” hereto is false, illegal, malafide and untenable in law and therefore deserves to be and be struck down and set aside. (c) That it may be declared and ordered that the defendant no.10 has no rights whatsoever under the said Agreements at Exhibit “A” and “B” hereto and that the rights to purchase the suit plots belong to and vested in 4 plaintiff alone and that the defendant no.10 is bound and liable to disclaim his rights, if any under the said Agreements and execute necessary documents in that behalf. (d) By an order of this Hon'ble Court the defendant nos.1 to 9 and/or the defendant no.10 their servants and agents be directed to specifically perform the contract as contained in the said two Agreements at Exhibits “A” and “B” hereto and for that purpose the defendant nos.1 to 9 or any of them be further directed to in the first instance remove and settle all claims and encumbrances at their costs, to get the suit plots surveyed, demarcated and identified on loco, to secure clear and marketable title with vacant possession of the suit plots and thereafter to sign execute and register in favour of the plaintiff the necessary sale deed and to put the plaintiff in vacant and peaceful possession of the suit plots and handover to the plaintiff all the original documents in 5 respect thereof so also all prescribed forms applications and writings duly signed by the defendants no.1 and 2 and or defendant nos. 3 to 9 required to be submitted to the concerned authorities for effecting transfer of the suit plots from the names of the defendants no.1 and 2 and/or their predecessors and or defendants nos. 3 to 9 to the name of the plaintiff in all registers and records of the concerned Revenue Authorities/Municipal Authorities as the case may be. (e) If and only if Specific Performance cannot be granted by this Hon'ble Court by way of an alternative relief, the defendants be jointly and severally ordered and decreed to pay to the plaintiff damages in lieu of Specific performance at Rs.10,40,64,495/- (Rupees Ten Crores Forty Lakhs Sixty Four Thousand four hundred and Ninety Five only) or such other amount as this Hon'ble Court may deem fit and proper with interest thereon at 12% per annum from the date of filing of the suit till payment. 6 (f) It may further be ordered and declared that plaintiffs claim of damages as mentioned in prayer clause (e) above has first charge and security upon the suit plots. (g) Costs of the suit be provided for and (h) For such other and further reliefs as the nature and circumstances of the case may require. 3. The suit was filed by the plaintiff on the basis of the Agreement dated 17/6/2006 entered between the plaintiff and the defendants as modified by an Addendum Agreement dated 11/1/2007. By these agreements, the defendants had agreed to sell certain properties to the plaintiff upon the terms and conditions mentioned therein. 4. The suit was contested by the defendants more particularly by defendants nos.1 and 2 who are respondents nos.2 and 3 in the present petition. 7 5. On 27/2/2009, the petitioner herein filed an application under Order 1 Rule 10(2) of C.P.C. for impleadment in the suit as defendant inter alia on the ground that he had interest by way of title in some of the properties agreed to be sold by the said Agreements. The application was opposed by defendants nos.1 and 2. The plaintiff and defendant no.10 (respondent no.4 herein) left the matter to the Court. The Trial Court by the impugned order dated 20/11/2009 dismissed the application. 6. The trial court held that the suit was for specific performance of contract for sale of the the suit properties or in the alternative for damages; the petitioner was neither a necessary nor a proper party in the suit; in a suit for specific performance a stranger to the contract is neither a proper nor a necessary party to the suit. All the grievances raised by the petitioner would enlarge the scope of the suit. The Trial Court relied upon the judgment of the Apex 8 Court in the case of Kasturi Vs. Iyyamperumal and others (2005) 6 SCC 733 and other judgments of other High Courts including judgment of this Court. 7. Mr. Mascarnehas, learned counsel appearing for the petitioner/applicant submitted that in view of the Consent Terms dated 24/4/2002 to which defendants nos.1 and 2 are parties, the petitioner has right in some of the properties agreed to be sold by virtue of the agreements of which a specific performance is sought by the plaintiff and therefore, the petitioner is a necessary party and therefore the impugned order is liable to be set aside. According to learned counsel the trial court has not exercised jurisdiction in accordance with the settled principles governing applications filed under Order 1 Rule 10(2) of C.P.C. Learned counsel further submitted that reliance placed by the Trial Court on the judgment in the case of Kasturi is misplaced. Learned counsel submitted that the finding of the Trial Court that the suit filed by the 9 plaintiff is a suit for specific performance of an Agreement for sale is factually in-correct in as much as the plaintiff has not only claimed specific performance of the agreement but also has claimed declaration. Learned counsel therefore submitted that the impugned order discloses non-application of mind by the learned trial Court. Learned counsel further submitted that if a party can show a fair title or interest in the property agreed to be sold he can file an application for impleadment. In the present case, the application filed by the petitioner, prima facie, discloses that he has interest and share in some of the properties agreed to be sold by the defendants to the plaintiff and therefore the Trial Court has erred in dismissing the application. In support of his submissions learned counsel placed reliance upon the following judgments: i) Mumbai International Airport Pvt. 10 Ltd., Vs. Reency Convention Centre & Hotels Pvt. Ltd. & Ors., 2010 AIR SCW 4222. ii) Rukhana Enterprises Vs. Ashoka Marketing Ltd. & Ors., 2010(1) B0m.C.R.765. iii) Sumtibai and others Vs. Paras Finance Company and ors., (2007) 10 SCC 82. 8. Mr. S.G. Dessai, learned Senior Counsel appearing on behalf of respondent no.1 submitted that the Trial Court has clearly erred in dismissing the application for impleadment filed by the petitioner in as much as the petitioner is a proper party to the suit. Learned counsel further submitted that the plaintiff is the dominus litis in a suit and since the plaintiff had not objected to the application for impleadment the Trial Court ought to have allowed the application. Learned counsel further submitted 11 that the finding given by the Trial Court that the suit is for specific performance is factually in-correct in as much as the suit is not only for specific performance of an agreement but also for declaration and as such, the discretion has not been exercised by the Trial Court on the settled principles governing an application under Order 1 Rule 10(2) of C.P.C. According to learned counsel the defendants have no right to object to the impleadment of a party. Learned counsel further submitted that the presence of the applicant is necessary to completely and effectively adjudicate all the matters in dispute in the suit. Learned counsel, therefore, submitted that the impugned order is liable to be set aside. 9. Per contra, Mr. Lotlikar, learned Senior counsel appearing for respondents nos.2 and 3 submitted that the Trial Court has correctly exercised its discretion under Order 1 Rule 10(2) of C.P.C. and has rejected the 12 application for impleadment filed by the petitioner. Learned counsel further submitted that even if the order is wrong, no interference is warranted unless it is shown that the discretion has been exercised arbitrarily and on irrelevant considerations. According to learned counsel the ground on which the petitioner has sought impleadment does not justify joinder of the petitioner either as a necessary or proper party. According to the learned counsel, the claim set up by the petitioner is adverse to that of the respondent nos.2 and 3 and as such, by no stretch of imagination it can be said that the petitioner is a necessary or a proper party to the suit. According to learned counsel the suit is essentially for specific performance of an agreement and as such, the petitioner being a stranger cannot be a necessary or proper party to the suit. According to learned counsel, the ratio laid down by the Apex Court in the case of Sumtibai and Mumbai International Airport Pvt. Ltd. does not dilute the 13 ratio laid down by the Apex Court in the case of Kasturi and as such, the Trial Court was perfectly justified in placing reliance upon the three Judge judgment of the Apex Court in the case of Kasturi (supra). According to the learned counsel respondents nos.2 and 3 who were defendants nos 1 and 2 in the suit had every right to oppose the application for impleadment since as defendants they cannot be compelled to deal with claim set up by the petitioner herein which is adverse to that of the defendants nos.1 and 2. In support of his submissions learned counsel placed reliance upon the following judgments: i) Anil Kumar Singh vs. Shivnath Mishra & Gadasa Guru, (1995) 3 Supreme Court Cases 147. ii) Kasturi Vs. Iyyamperumal and others (2005) 6 Supreme Court Cases 733. iii) Bharat Karsondas Thakka Vs. Kiran 14 Construction Company and ors. (2008) 13 Supreme Court Cases 658. iv) Ajay Kumar V. Smt. Tulsabai and anr, AIR 1973 Bombay 330. 10. I have carefully considered the rival submissions, perused the record and judgments relied upon. Since both the parties have relied upon a number of judgments, it would be appropriate to deal with the same. (a) In the case of Kasturi,(supra) the Three Bench Judge of the Apex Court has held that in a suit for specific performance of a contract - the necessary parties to the suit are only parties to the contract or parties claiming under them or a person who had purchased the contracted property from the vendor with or without notice of the contract; a person claiming independent title and possession adversely to title of vendor is not a 15 necessary party since an effective decree can be passed in his absence and no relief can be claimed against such party. The Apex Court further held that a necessary party is the one who has a right to some relief against such party in respect of controversies involved in the proceedings and in whose absence no effective decree can be passed. (b) In the case of Anil Kumar Singh, (supra), the Apex Court held that a party who is not a party to the contract is neither a necessary nor a proper party in the suit for specific performance of a contract for sale and as such, he cannot be impleaded under Order 1 Rule 10(2) of C.P.C as defendant in the suit. (c) In the case of Bharat Karsonda Thakkar (supra) it is held that a suit for specific performance cannot be allowed to be converted into a suit for declaration of title by adding a party under Order 1 Rule 10(2) of C.P.C and proper remedy for such a person would be to challenge the consent decree by filing a separate 16 suit. (d) In the case of E. Ajay Kumar, (supra), the learned Single Judge of this Court has held that where relief of specific performance is sought, a stranger cannot be a party to the suit. (e) In the case of Rukhana Enterprises, (supra), the learned Single Judge of this Court held that subsequent purchaser of property can be impleaded in suit for specific performance of agreement to sell. (f) In the case of Sumtibai and others (supra), the Apex Court has held that the decision in the case of Kasturi must be understood to mean that a third party cannot be impleaded in a suit for specific performance if there is no semblance of title in the property in dispute and a busybody or interloper with no semblance of title cannot be impleaded in such a suit since the same would unnecessarily protract or obstruct the proceedings in the suit. However, the decision will have 17 no application where a third party shows some semblance of title or interest in the property in dispute. (g) In the case of Mumbai Airport Pvt. Ltd., (supra) the Apex Court has considered the scope of Order 1 Rule 10 of C.P.C and held that there is no divergence in the two decisions, namely decision in the cases of Kasturi and Sumtibai and they are with reference to the facts and circumstances of the respective case. In the case of Kasturi, the Apex Court held that in suits for specific performance, only the parties to the contract or a legal representative of a party to the contract or a transfree from a party to the contract are necessary parties. In Sumtibai, it has been held that a person having semblance of a title can be considered as a proper party and Kasturi did not 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. 18 11. Thus, from the authorities referred to above it is evident that in a suit for specific performance ordinarily the parties in the suit are parties to the contract or transferees of the property which is the subject matter of the contract. However, in the case of Sumtibai the Apex Court has clearly held that even in a suit for specific performance a third party can be impleaded if he has a semblance of title or interest in the property in dispute. 12. In the present case, a bare perusal of the impugned order discloses that the Trial Court has dismissed the application primarily on the ground that the suit is simplicitor for specific performance of an agreement which is factually in-correct. The suit is also for declaration. Moreover, the Trial Court has relied upon the judgment in the case of Kasturi (supra) to hold that in a suit for specific performance, a stranger cannot be impleaded as a party. As stated above, a person having 19 semblance of title to the property in dispute can be impleaded as a party in a suit in terms of the judgment of the Apex Court in the case of Sumtibai. 13. In view of the above, the impugned order dated 20/11/2009 dismissing the application for impleadment of the petitioner cannot be sustained and deserves to be quashed and set aside. It is well settled that an order under Order 1 Rule 10(2) C.P.C is a discretionary order and it is within discretion of the Trial Court to permit joinder of a party, either as a necessary or proper party. No doubt, such discretion has to be exercised under well settled principles laid down by the Superior Courts. Admittedly, the judgment relied upon by Mr. Mascarenhas in support of his submissions were not relied upon before the Trial Court and as such learned Judge had no advantage of dealing with the same having regard to the material placed by both sides. It would, therefore, be appropriate to set aside the order dated 20/11/2009 and 20 remand the matter to the Trial Court to pass fresh order after giving an opportunity of being heard to the parties and after considering the aforesaid judgments relied upon by both sides and the pleadings of the parties and reliefs sought by the plaintiff and materials placed on record. 14. In the result therefore, the impugned order dated 20/11/2009 passed by the Civil Judge, Senior Division, Bicholim is quashed and set aside. The Trial Court to decide the application dated 27/2/2009 in the light of the principles laid down by the Apex Court in aforesaid judgments after giving an opportunity of being heard to the parties. 15. The petition stands disposed of in the aforesaid terms with no order as to costs. A. P. Lavande, J. Ap/-