1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.170 OF 2008 IN SUIT NO.6846 OF 1999 M/s.Regency Convention Centre and Hotels Pvt.Ltd. .. Plaintiffs Versus The Airport Authority of India and Ors. .. Defendants and Mumbai International Airport Pvt.Ltd. .. Applicant Mr.Janak Dwarkadas, Senior Advocate with S.Shah and Kalpesh Joshi i/b. M/s.Malvi Ranchhoddas and Company for plaintiffs Mr.Virag Tulzapurkar, Senior Advocate with Farid Khorakiwala, S.Jagtap and B.Manek i/b. M/s.Wadia Gandhy & Co. for applicants Mr.N.G.Thakkar, Senior Advocate with V.Bodke i/b. Chitnis Vaity & Co. for respondent Nos. 2 to 16 Mr.Girish Kulkarni with M.V.Shetty i/b. M.V.Kini & Co. for respondent No.1 CORAM : S.C.DHARMADHIKARI, J. DATE : 1st April 2008 P.C. 2 . This chamber summons is by the applicant Mumbai International Airport Pvt.Ltd. seeking a direction to the plaintiff to join and implead it as party defendant to the above suit. 2. It is undisputed before me that the instant suit is filed by the plaintiff against the first defendant for specific performance of an agreement to lease, executed by defendant No.1 in favour of the plaintiff and in the alternative for compensation. 3. It is further not disputed before me that there are interim orders passed upon the application of the plaintiff and the interim order records a statement that land admeasuring 31000 sq.mtrs. would be separately demarcated and will not be alienated, sold and transferred and no third party interest in that land would be created by the defendant, Airport Authority without seeking leave of the Court. 3 4. Mr.Tulzapurkar, learned Senior Counsel appearing for applicants submits that in accordance with the policy of Government of India and with a view to meet the increased passenger and cargo traffic, the Government of India undertook competitive bidding process and the first defendant handed over Mumbai Airport to the applicant with the main objective of having Mumbai Airport operated, maintained, developed and expanded into world class Airport. There are several agreements entered into for management and development and it is contended by Mr.Tulzapurkar that a lease deed has been executed on 26th April 2006 wherein most of the immovable properties of defendant No.1 have been leased to the applicant, save and except, the suit land admeasuring 31,000 sq.mtrs. He has invited my attention to the sketch, a copy of which is annexed to the affidavit in support and contended that the portion marked "A" has been 4 carved out and that is the suit land. But for the suit, the same would have formed subject matter of the lease between the applicant and first defendant. It is only because of the pendency of the instant suit that the portion has not been included in the lease deed. The note on the map indicates this aspect. In such circumstances, when the lease deed was to include this land/portion, the applicant has an interest in the suit land. Inviting my attention to para 18 of the affidavit in support, it is urged that applicant may not be a necessary party but is a proper party. Further, the controversy cannot be adjudicated completely unless the lease deed dated 26th April 2006 is also made part of the suit. He submits that depending upon the outcome of the suit, lease deed in favour of the applicant will include the portion of 31,000 sq.mtrs. and, therefore, this Court should in its discretion, direct the plaintiffs to amend the plaint and implead present applicant as party 5 defendant. 5. Mr.Dwarkadas, learned Senior Counsel appearing for plaintiffs has opposed this chamber summons and has contended that once the applicant argues on the footing that it is not a necessary party but a proper party, then, the choice of the plaintiffs cannot be diluted and interfered with. The plaintiffs cannot be forced to join somebody with whom the plaintiff has no lis or dispute. The suit is for specific performance of an agreement in favour of the plaintiff, executed by the first defendant. The plaintiffs may or may not succeed but merely because the portion of land admeasuring 31,000 sq.mtrs. is part of the suit does not mean that the applicant must be joined as party defendant. More so, when on the own showing of the applicants, they do not have present right and it is only that depending upon the outcome of the suit, the applicants would negotiate with the defendant and, thereafter, 6 something may fructify. Presently, it cannot be said that there is interest in the property of the nature mandated by the legal provisions. 6. My attention is invited by Mr.Tulzapurkar to a judgement of the Supreme Court reported in 2007 J.T. 479 (Sumtibai & Ors. Vs. Paras Finance Co.). This was a case where the Supreme Court was considering a legality and correctness of the orders passed by the trial court on 6th August 1997 whereby an application filed under Order 22 Rule 4(2) of C.P.C. read with Order 1 Rule 10 thereof was rejected. 7. Heirs of one Kapoor Chand approached the Supreme Court. A suit was filed by respondent against the said Kapoor Chand for specific performance of a contract for sale which was entered into by the said Kapoor Chand with M/s.Paras Finance Co. In the agreement it was stated by Kapoor Chand that the property in 7 dispute was his self acquired property. During the pendency of the suit Kapoor Chand died and his wife and sons applied for being brought on record as legal representatives. After they were impleaded as such, they filed an application praying inter alia to file written statement and also to adopt such pleas which are available to them. The trial court rejected this application against which a revision was filed by the appellant before the High Court which also was dismissed by the High Court and that is how the special leave petition was filed. 8. It is in this factual backdrop and relying upon the registered sale deed dated 12th August 1960 that the Supreme Court distinguished a three Judge bench decision. The decision in the case cited by Mr.Tulzapurkar is by a two Judge bench. It has been distinguished on the facts. On the other hand, the facts in the instant case are more or less similar to the 8 Three Judge Bench decision of the Hon’ble Supreme Court in the case of Kasturi Vs. Iyyamperumal & Ors., reported in 2005(6) S.C.C. 733. Following that decision and applying it to similar facts in Writ Petition No.1023 of 2008 (Vilas Ramchandra Pawar Vs. Ajay Mohan and Ors) decided on 14th February 2008, I had observed as under:- "5. The petitioner’s case was that the original plaintiff No.1 had entered into the development agreement with the petitioner and handed over possession of the land with power to develop and construct upon the same. It is in such circumstances and when the lands are identical, inasmuch as they are covered by the document in favour of the plaintiffs in that suit so also the present petitioner that, he is a necessary party. In other words, the land at village Tirandaj Taluka Kurla and 9 at Powai being the subject matter of the pending litigation, the petitioner having interest in the said lands by virtue of the document in his favour, he ought to have been joined as party to the suit and his presence is, therefore, necessary. His joinder having not been made, the Trial Court should direct the original plaintiffs to join the petitioner." "6. That application is rejected and the order in that behalf is challenged as stated above." "11. Mr.Abhyankar relied upon the decision of the Hon’ble Supreme Court reported in 2005 (6) S.C.C. 733 (Kasturi Vs. Iyyamperumal and Ors). The tests which are to be applied for considering the applications in question are well settled and need not be elaborated. The 10 Supreme Court in the decision relied upon by Mr.Abhyankar has in para 15 referred to the governing principle that the parties before the Court should be such so as to enable the Court to adjudicate upon and settle all the questions involved in the suit. The matter before the Supreme Court was in the context of an agreement for sale of which the specific performance was sought. The Supreme Court observed that when the respondents did not seek addition on the strength of a contract in respect of which the suit was filed but based their independent tittle and possession, then, their presence would not be necessary. It is in that context that the Supreme Court observed in para 16 thus:- "16. That apart, from a plain reading of the expression used in sub-rule (2) Order 1 Rule 10 C.P.C. "All the questions 11 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 and 3 and respondent No.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 respondent Nos. 1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made hereinearlier, respondent 12 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." "12. The Supreme Court in para 18 reiterated the principle that the appellant before it who had filed the suit is dominus litis and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law as discussed hereinabove." 9. In the present case, once the request is not to implead the applicant on the basis that it is necessary party but a party who has yet to acquire some interest in the suit land, then, different considerations would apply. It is not as if this Court can issue directions straight away to implead the applicants. More so, when in the present case the suit for specific 13 performance between the plaintiff and defendant No.1 is a distinct transaction. The agreement between the applicant and the defendant No.1 is something to which the present plaintiff is not a party. As between the plaintiff and defendant No.1, there is an agreement of which specific performance is sought with which applicant is not concerned. In such circumstances, it is not as if this Court, relying upon some future right which may accrue, after the outcome of the suit, can direct at this stage, that the applicant should be impleaded as party. The applicant has its own remedies even presently and after the outcome of the suit. 10. It is not as if a reading of the affidavit in support would indicate that the applicant straight away gets the portion or that there is an agreement to that effect. The agreement clearly shows that the portion which is covered by the instant suit is carved out and it 14 is subject to the outcome of present suit that negotiations may follow. In such circumstances, it cannot be said at this stage that the applicant should be directed to be joined as party, more so, when they are not necessary parties. 11. In the above circumstances, chamber summons is misconceived and is dismissed. (S.C.Dharmadhikari, J)