1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.6623 OF 2009 Shri Parashuram Tukaram Patil. .. Petitioner Vs Shri Shailendra Mathur & Ors. .. Respondents -- Shri A.J. Dholakia i/by Smt. Neela A. Dholakia for the Petitioner. Shri E.A. Sasi for Respondent No.3. -- CORAM : A.S. OKA, J DATE : 29TH JANUARY, 2010. P.C. . Heard learned counsel appearing for the Petitioner and the learned counsel appearing for the 3rd Respondent. 2. By an order dated 4th September, 2009, the Petition was ordered to be disposed of finally at the stage of admission. The Petitioner is the original Plaintiff. The 3rd Respondent herein was not a party to the suit. On an application made by the 3rd Respondent, an order has been passed by the trial Court directing the Petitioner to implead the 3rd Respondent as a party. 3. The case of the Petitioner as set out in the Plaint is that the Petitioner had supplied construction material and labour for the purpose of construction of a building and a sum of Rs.2,80,000/- was due and payable by the 1st Respondent ( 1st Defendant ) to the Petitioner. The case of the 2 Petitioner is that the 1st Respondent agreed to allot a flat on ownership basis in the building under construction at the cost of Rs.3,61,900/- and accordingly a letter of allotment dated 2nd April, 1992 was issued in favour of the Petitioner. The case made out in the Plaint is that after the balance consideration was paid by the Petitioner, he called upon the 1st Respondent to execute an Agreement. Thereafter, the Petitioner realized that the 1st Respondent was not available on the site and even the 2nd Respondent was not aware of the whareabouts of the 1st Respondent. The 2nd Respondent was impleaded in the suit as party 2nd Defendant as the 2nd Respondent was claiming to be the owner of the plot of land on which the building was constructed. The first prayer in the suit is that it be declared that the allotment letter dated 2nd April, 1992 has been issued to the Petitioner on 10th September, 1994. The second prayer is for directing the 1st and the 2nd Respondents to execute an agreement in favour of the Petitioner. The third prayer is for a decree of possession in respect of the suit flat. There are other prayers made in the suit including a prayer in the alternative for refund of the consideration. It appears that in the said suit, a compromise was recorded between the Petitioner and the 2nd Respondent ( 2nd Defendant ). 4. An application was made by the Respondent on 29th November, 2008 on which the impugned order has been passed. In the application, it is alleged that the 3rd Respondent is the purchaser of the suit flat from the 1st Respondent under a letter of allotment dated 2nd May, 1994. It is alleged that after payment of the entire consideration, the 1st Respondent issued a possession receipt dated 3rd March, 1998 in favour of the 3rd Respondent and 3 he was put in possession of the suit flat. It is stated that the 3rd Respondent has filed a suit for specific performance which is pending. It is alleged that the letter of allotment was lodged for registration under the Amnesty Scheme declared on 25th November, 2008. However, allegation made in that application was that on 18th November, 2008, the Petitioner trespassed in the suit flat by breaking open the lock. It is contended that the third Respondent was in lawful possession. It is alleged that on 22nd November, 2008, the Petitioner voluntarily handed over the key of the suit flat to the 3rd Respondent. The said application was contested by the Petitioner. 5. While passing the impugned order, the learned trial Judge observed that from the documents produced by the 3rd Respondent, it appears that the 3rd Respondent was having some interest in the property subject matter of the suit and, therefore, he was a necessary party to the suit. 6. The submission of the learned counsel appearing for the Petitioner is that the suit filed by the Petitioner is essentially for enforcing an agreement for sale executed by the 1st Respondent in favour of the Petitioner for the sale of the suit flat. He submitted that the 3rd Respondent is totally a stranger to the contract, and therefore, he was neither a necessary nor a proper party to the suit filed by the Petitioner. He, therefore, submitted that the trial Court has committed an error. The learned counsel appearing for the 3rd Respondent submitted that in fact, interest has been created in favour of the 3rd Respondent in respect of the suit flat prior to the date on which the alleged allotment letter was issued to the Petitioner. He submitted that, 4 according to the case of the Petitioner, the letter of allotment dated 2nd April, 1992 was infact issued on 10th September, 1994 and even prior to that, the 3rd Respondent had paid certain amounts to the 1st Respondent towards consideration. The submission is that the Petitioner has already entered into a compromise with the 2nd Respondent (2nd Defendant ) and with a view to defeat the claim of the 3rd Respondent, the Petitioner and the 1st Respondent may obtain a collusive decree. He, therefore, submitted that no interference is called for. 7. I have carefully considered the submissions. It is necessary to consider the decision of the Apex Court in the case of Kasturi v. Iyyamperumal & Ors., [JT 2005(4) SC 565]. The question which arose for consideration before the Apex Court reads thus:- “The only question that needs to be decided in this case is whether in a suit for specific performance of contract for sale of a property instituted by a purchaser against the vendor, 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.” 8. The question has been answered by the Apex Court in Paragraphs 16 and 17 which reads thus:- “16. It is difficult to conceive that while deciding the question as to who is in possession of the contracted property, it would not be open to the Court to decide the question of possession of a third party/or a stranger as first the lis to be 5 decided is the enforceability of the contract entered into between the appellant and the respondent no.3 and whether contract was executed by the appellant and the respondent nos. 2 and 3 for sale of the contracted property, whether the plaintiffs were ready and willing to perform their part of the contract and whether the appellant is entitled to a decree for specific performance of a contract for sale against the respondent nos.2 and 3. Secondly in that cases, whoever asserts his independent possession of the contracted property has to be added in the suit, then this process may continue without a final decision of the suit. Apart from that, the intervener must be directly and legally interested in the answers to the controversies involved in the suit for specific performance of the contract for sale. In Amol v. Rasheed Tuck and Sons Ltd., [1956(1) All Eng.Reporter 273 ], it has been held that a person is legally interested in the answers to the controversies only if he can satisfy the Court that it may lead to a result that will effect him legally. 17. That apart, there is another principle which cannot also be forgotten. The appellant, who has filed the instant suit for specific performance of the contract for sale is dominus litus 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 already discussed above. For the reasons aforesaid, we are therefore of the view that respondent nos.1 and 4 to 11 are neither necessary parties nor proper parties and therefore they are not entitled to be added as party- defendants in the spending suit for specific performance of the contract for sale.” 9. A reliance was placed on the subsequent decision of the Apex Court in the case of Sumtibai & Ors. v. Paras Finance Co. Regd. Partnership Firm, [AIR 2007 SC 3166 ]. A submission was made that there is a semblance of right created in favour of the 3rd Respondent and therefore, the 3rd Respondent has rightly been impleaded as a party. Reliance is also placed 6 on the decision of the Apex Court in the case of V.J. Thomas v. Pathrose Abraham & Ors., [AIR 2008 SC 1503 ]. 10. It cannot be disputed that the suit filed by the Petitioner is essentially for enforcing an alleged agreement of sale of the suit flat made by the 1st Respondent in favour of the Petitioner. The 3rd Respondent has set up another agreement executed by the 1st Respondent in his favour. The 3rd Respondent claims to be in possession of the suit flat by virtue of the alleged agreement executed in his favour. Thus, the 3rd Respondent is claiming independent title and possession. He is a stranger to the suit Agreement. 11. Perusal of the decision of the Apex Court in the case of Sumtibai (supra) shows that the Apex Court has distinguished the decision in the case of Kasturi (supra) on facts. What is necessary to be considered is the frame of the present suit and the nature of reliefs claimed therein. As stated earlier, the 3rd Respondent is claiming independent right. Considering the frame of the suit filed by the Petitioner, any decree passed in the said suit will not bind the 3rd Respondent. The 3rd Respondent has stated that he has filed a suit for specific performance. At the most, a prayer can be made by the parties for clubbing the suit together. As the 3rd Respondent will not be bound by the decree which may be passed in the suit filed by the present Petitioner, it cannot be said that the 3rd Respondent was either a necessary or a proper party to the suit. The Petitioner being dominus litis is taking risk of not impleading the 3rd Respondent as party knowing fully well that the decree passed in the suit will not bind the 3rd Respondent in absence of the 7 3rd Respondent. 12. Hence, I pass following order. (a) Subject to what is observed above, the impugned order is quashed and set aside and the application made by the 3rd Respondent at Exhibit- 39 is rejected. (b) All contentions of the parties on merits are kept open. (c) It is made clear that no adjudication has been made as regards the right claimed by the 3rd Respondent. JUDGE ash