"^"i..^ ^^ ^- &<?<c7" y^' HIGH COURT OF CHHATTISGARH AT BlLrto. W.P.('227)No. 5833 of2008 su'asS'SSS^1 Vs. -S9' Post ofpronouncement ofjudgment and orders on 11 /05/2009. Sd/- N.K. Agarwal Judge Respondents Nou s^y '•''^••^i*iK^st. ^sss'ssw HIGH COURT OF CHHATTISGARH AT BILASPLTR W.P. (227)No. 5833 of2008 Bhagwat Ram Sahii S/o iate Shri Asha Ram Sahu, Aged about 48 yeare, R/o Jarhabhata, Ring Road No. 2, Bilaspur; Tahsil & Distt. Bilaspur (CG). Versus c/ 1. Jagdish Prasad Nirmalkar, S/o late K.R. Nirmalkar, Aged about 45 years R,/o Jarhabhata, Ring Road No. 2, Near Panjat Caste, Bilasour, Tahsil and Distt. Bilaspur (CG). 2. Smt. Raj Kumar Soni, W/o Kumar Soni, aged about 47 years, C/o late Chinta Ram, R/'o Manikour Near Police Chowki, Tahsil & Distt. Korba (CG). 3. Smt. Sushiia Bai, W/o Bhaskemand Soni, aged about 40 years, R/o GRP Line, New Loco Colonv, Or. No. 972/04, Bilaspur, Tahsil & Distt. Bilaspur (CG). Writ Petition under Article 227 ofthe Constitution oflndia (Single Bench: Hon'UeMr. N.K. Agarwal, J.) Present : Sfari K.A. Ansari, Sr. Advocate with Shri Ankush Mishra, Advocate for fhe petitioner. Shri Ram Kumar Tiwari, Advocate for the respondent No. 1 . None for respondent No. 2. Shri Suresh Pandey, Advocate forfhe respondent No. 3. ?9) (Passedon )| dayofMay,2009) 1. This petitioa is directed against the orders dated 24.04.2008 (Annexiire P/l) and 21.08.08 (Amiexure P/2), passed in civil suit No. 33A/07 by IInd Additional District Judge, Bilaspur, whereby the applications under Order 1 Rule 10 ofCPC and Order 1 Rule 10 (3) read wifh Section 151 ofCPC, filed by one Jagdish Prasad Nirmalkar respondent No. 1 herein, "'h.:T' »s.'^ /' 1 "i \ / were allowed, and vide first order dated 24.04.2008 the respondent No. 1 was directed to be impleaded as defendant and vjde second order dated 21.08.2008, the respondent No. 1 was directed to be transposed as co-plaintifF. 2. The brieffacts ofthe case are that, the petitioner filed a suit for specific performanee ofcontract for sale ofproperty which is part ofKliasra No. 505/01, Area 2 Decimal, situated at Village Ameri, District Bilaspur, against the respondent No. 2 & 3, which is pending consideratioa. During pendency of the suit, the respondent N'o. 1 herem filed an applieation under order 1 Rule 10 of CPC for impleading him as defeadant in the said suit on the ground that he entered into an agreement to sale for suit land vvith the respondent No. 2 & 3 which is prior in time. The trial court, vide order dated 24.04.08, allowed the application ofthe respondent No. 1 on the ground that the respondent No. 1 is a necessary party to enable the court to deeide the lis efTectuaUy and completely and to settle a!I the questions involved in the suit. 3. Again the respondent No. 1 prefen-ed an application under order 1 Rule 10 (3) read with Section 151 ofCPC for transposition ofrespondent No. 1 as plaintiff No. 2. The same was also allowed by the trial court holdmg that it would help to resolve all the issues and controversy involved in the suit. 4. Shii Ansari, leamed senior counsel appearing for the petitioner would submit that the impugned orders passed by the trial court are wholly withoutjurisdietion and illegal. For this, he placed his reliance upon the judgment of Supreme Court in eases of Kasturi Vs. lyyamperumal and nu/ iiir'SKS^^^^^ .sMEia wsa&ysWS'SS 5. Per contra, Shri R.K. Tiwari, counsel for respondenl No. 1 and Shri Suresh Pandey, counsel for respondent No. 3 supported the orders and submitted that the orders passed by trial courts are well reasoned orders and does not call for any interference. For this, they placed reliance upon the dedsions passed by the Supreme Court in the mattei-s of Sneh Gupta Vs. Devi Samp & Others , Bijoyo Kumar Pattanaflc Vs. Basanta vf Kumar Patnaik and Others , Dwarka Prasad Suigh And Others Vs. Harftant Prasad Singh and Others , Kiran Tandon Vs. Allahabad Developmsnt Authority and Another and R.S. Maddanappa (deceased) after him by his legal representatives Vs. Chandramma aad Another . 6. The question for decision making in this case is whether any suit for specific performance of contract for sale of property instituted by purchaser against the vender, a stranger or a third party to the contract, claiming to have an independent title and possession over the contracted property, is entitled to be added as a party/defendant in the said suit, and also, whefher such party can be transposed as plaintifF in the suit. The relevant provision in this regard is order 1 Rule 10 ofCPC, which reads as under : Rule 10 (1) Whether a suit has been instituted in the name of the wrong person as plaintijff or where it is doubtfal whether it has been institirted in the name of the right plaintiff, the court may at any stage ofthe suit, ifsatisfied that the suit has been instituted through a bona fide mistake, and that it is necessaiy for the detefciinatioii of the Feal matter in dispute so to do, order any person to be substituted or added as plaintifF upon such temis as the courtthiriksjust. (2) The Court may at any stage ofthe proceedings, either upon or without the application of either paity, and on sueh terms as may appear to the court to be just, order that tlie name of any party improperly joined, wheflier as 2 2009 (2) Supreme 77 3 AIR 2000 Supreme Court 3587 4 AIR 1973 Supreme Court 655 5 Affi. 2004 Supreme Court 2006 6 Affi. 1965 Supreme Court 1812 ^ 1 . S ~'faasaSs^e' plainttffor defendant, be struck out, and that the name of aay person who ought to have been jomed, whether as plaintiff defendant or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle a)l the questions iiivolved in the suit, be added. (4). (Oniitted since not iiecessary). ^. 7. A bare reading ofthis provision -would reveal that the necessary parties in a suit for specific performance of contract for sale are the parties to the contract or if they are dead their legal representatives as also a subsequeat purchaser of the suit property. 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 to be a party to another contract for sale with the same vender is, however, not a necessary paily. 8. The Supreme Court in the matter ofKasturi (Supra) laid down two tests to be satisfied for determining the question who is a necessary party, firstly, there must be a right to some relief against such part>' in respect of controversies involved in the proceedings. Secondly, no efFective decree can be passed in the absence of such party. The Supreme Court farther held as under : >> »;f;s»'s=is:'^tN^^ i|EsS';^;: ^is^??..-';^ "15. That apart, from a plain reading ofthe expression used m sub rule (2), Order 1, Rule 10 ofthe CPC "al! the questions involved in the suit" it is abundantly clear that thelegislature clearly meant that the cofltroversies raised as between tfae parties to the litigation must be gone into only, that is to say, contfovei-sies with regard to tlie right which is set up and the relief claimed on one side and denied on the othei- and not the controversies which may arise betw'een the plaintiff/appellant and the defendants iiiter se or questions between the parties to the suit and a third party. In our view, therefore, the court cannot allow adjudication ofcollateral matters so as to coavert a suit for specific performance of contraet for sale into a complicated suit for title between the plamtifiyappellant on one hand and Respondent Nos. 2 & 3 and respondent Nos. 1 and 4 to 11 oiithe other. This addition, ifallowed, p i» gat.at g"a would lead to a complicated iitigation by which the trial and decision ofserious questioiis which are totally outside the scope ofthe suit would have to be gone iiito. As the decree of a suit for specific perfonnance of fhe contract for sale, ifpassed, cannot, at all, affect the right, title and iiiterest ofthe respondent Nos. 1 and 4 to 11 m respect of the contracted property and in view of the detailed discussion made hereinearlier, tlie respondent Nos. 1 aad 4 to 11 would, not. at all, be necessary to be added in the mstaace suit for specific performaiice ofcontract for sale. XXX XXX XXX 17. That apart, there is another principle which carmot also be forgottea. The appellant, who has filed the instant suit for specific performance of the contract for sa!e is doiirinus Situs and caruiot be forced to add parties agamst whom he does not want to fight unless it is a compulsion of the rule of law, as already discussed above. For the reasons aforesaid, we are therefore of the view that respondent Nos. 1 and 4 to 11 are neither necessaiy pailies nor proper parties and tfaerefore they are not entitled to be added as party defendants in the pending suit for specific perfomiance ofthe contract for sale. 18. ..... ..In our view, the third party to the agreement for sale without ehallenging the title ofthe respondent No. 3, even assuming they are in possession of the contracted property, camiot protect their possession without filing a separate suit for title and possession against the vendor. It is well settled fhat in a suit for speclfic perfonTiance of a contract for sale the lis between the appellant and the respondeat Nos. 2 & 3 shall oiily be goae into and it also not open to the court to decide whether the respondent Nos. 1 and 4 to 11 have acquired any title aiid possession of the contracted propert}' as that would not be germane for decision in tlie suit for specific perfonnaace of the contract for sale, that is to say in a su.it for specific performance ofthe contraet for sale the controversy to be decided raised by the appellant against respondent Nos. 2 & 3 can only be adjudicated upoii, aiid in such a lis the court cannot decide the question oftitle and possession of tlie respondent Nos. 1 and 4 to 11 relating to the contracted property." 9. Thus, it is clear that the dicta of the judgments of Supreme Court, as referred hereinabove, clearly support the stand teken by the petitioner. 10. It is a well-settled law that by entering into contract for sale ofproperty, a party does not get any legal right over the property, and remedy is to institute a suit for specific performance of a contract for sale in r ' fcns..- accordance with law. In a suit for specific perfbnnance ofcontract for sale of property filed by the petitioner, the respondent No. 1 who is stranser to the contract and claims to be entered into contract for sale of property wifh the respondent No. 2 & 3 separately and prior in time, is always at a liberty to institute a suit for specific performance ofcontract for sale ofproperty against the respondent No. 2 & 3. But he is neither vf a necessary party nor property in suit filed by the petitioner. Moreover, transposition of his name as plaintiff No. 2 is wholly without jurisdiction for two reasons, firstly, as per their own case their interest is adverse to the petitioaer and secondly, transposition ofrespondent No. 1 as plaintiff would mean two plaintiffs claiming interest over the suit property which is adverse to each other. ll.In case of Sneh Gupta (Supra) the appellants Sneh Gupta was one ofthe legal heirs, entitled to a share m the property. In case of Bijoyo Kumar (Supra) in a partition suit plaintiff No. 1 instead of seeking retiim of plaint for presentation before proper court seeking transposition of plaintiffs 2-5 as defendant before MunsiffCourt, which was allowed by the Supreme Court. In case of Dwarka Prasad Singh (Supra), the Supreme Court held that in a suit for speeific perfonnance against a purchaser with notice of a prior agreement of sale the vender is a necessary party. 12.In case ofKiran Tandon (Supra), the Supreme Court in para 4 held as under: " .. ..On such terms as may appear to the court to be just, order that the name of aiiy party improperiy jomed, whether as plaintifF or defendant, be struck out, and that the name of any person who ouglit to have been joiiied, whether as plaintiff defeadant 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 added. It is well settled that tlie court has power under sub mle (2) Order 1, Rule 10, CPC to transfer a defendant to the category of p: L SL plaintiffs and where the plaintyFagrees, such transposition shouldbe readily made." 13. Thus, a careful reading ofthe dicta ofthe judginents of Supreme Court, referred hereinabove, and relied on by the respondents, are not helpful to the respondents inthe facts and circumstance ofthe case on hand. 14.For the reasons mentioned herein above, I have no hesitation to hold that the impugned orders dated 24.04.2008 and 21.Q8.08, passed in civil suit No. 33A/07, are wholly without jurisdiction, and liable to be set aside and is aceordingly set aside and the application for addition of parties filed at tfae instance ofrespondent No. 1 and also the application for transposition of respondent No. 1 as plaintiff No. 2 filed by the respondent No. 1 stand rejected and petition is accordingly allowed. 15. However, it is made clear that the respondent No. 1 is free to avail his remedy under fhe provisions oflaw against the respondent No. 2 & 3, if so advised. No order asto costs. S^i. Sd/- N.K.Agarwal Judge ^l!J:'-;ii:!~t;h»!L'li