In the High Court of Punjab and Haryana at Chandigarh Civil Revision No. 5777 of 2008 (O&M) Date of decision: August 11, 2009 Parvesh Kumar .. Petitioner Vs. Ramesh Kumar and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Alok Jain, Advocate for the petitioner. Mr. S.P. Khatri, Advocate for the respondent No.1. Mr. Ajit Malik, Advocate for the respondents No.2 & 3. A.N. Jindal, J This revision petition is directed against the order dated 1.10.2008 passed by the Additional Civil Judge (Sr. Division), Ganaur, whereby an application filed by him for impleading him as a party in the suit for specific performance on the basis of prior agreement to sell dated 4.3.2004 allegedly executed by Bimla Devi (herein referred as 'the respondent No.2') was declined. The factual background of the case is that Rakesh Kumar- respondent (herein referred as 'the respondent No.1'), filed a suit against Bimla Devi respondent No.2, for possession by way of specific performance of a contract with consequential relief of permanent injunction, on the basis of the agreement to sell dated 4.3.2004 which is now pending, whereas, the petitioner disclosed that he had also filed a suit regarding the same shop situated at Railway Road, within the municipal limits of Ganaur, on the basis of the agreement dated 16.7.2003, which was decreed by the court in his favour vide judgment and decree dated 11.6.2008. No further appeal has been preferred by vendor Bimla Devi respondent No.2 and said judgment has attained finality. In order to avoid multiplicity of the suits, the petitioner moved an application in the suit pending between Ramesh Kumar vs. Bimla Devi etc. for impleading him as a party, which was declined by the trial court while relying upon the judgment delivered in case Bharat Karsondas Thakkar vs. M/s Kiran Construction Co. and others 2008 (3) Civil Revision No. 5777 of 2008 -2- *** RCR (Civil) 57 and observed that the petitioner was not a necessary party. The court also relied upon the judgment delivered in case Kasturi vs. Iyyampenimal and others 2005 (2) RCR (Civil) 690: LJR 2006 (1) 848 : (2005) 6 SCC 733. To the contrary, the petitioner has placed reliance on the judgment delivered in case Sumtibai & Ors. vs. Paras Finance Co. Mankanwar W/o Parasmal Chordia (D) & Ors. 2007 (4) RCR (Civil) 524 : 2007 (4) Latest Judicial Reports 502, in order to contend that the petitioner is a necessary party. As culled out from the facts of the case, it appears that the petitioner has a good cause for being impleaded as necessary party. He has shown semblance of title and interest in the property which is the subject matter of the suit filed by the respondent No.1 against respondent No.2. Having gone through the judgment delivered in Kasturi case (supra), it transpires that there are three tests in order to find out if the party seeking to be impleaded is necessary party or not :- 1. Necessary parties are those persons in whose absence no decree can be passed. 2. Proper parties are those whose presence before the court would be necessary in order to enable the court to factually and completely adjudicate upon and settle all the questions involved in the suit. 3. Persons stranger to the contract are neither necessary nor proper parties. The facts involved in the aforesaid judgment were that the parties seeking impleadment were not parties to the contract and they were setting up independent title and claiming possession over the contractual property. In those circumstances, the court observed as under :- “......... If we apply these two tests in the facts and circumstances of the present case, it would be evident that the respondents Nos. 1 and 4 to 11 cannot satisfy the above two Civil Revision No. 5777 of 2008 -3- *** tests for determining the question where a stranger/third party is entitled to be added under Order 1 Rule 10 of the CPC only on the ground that if the decree for specific performance of the contract for sale is passed in absence of respondent Nos. 1 and 4 to 11, their possession over the contracted property can be disturbed or they can be dispossessed from the contracted property in execution of the decree for specific performance of the contract for sale obtained by the appellant against respondent No.2 and 3. Such being the position, in our view, it was not open to the High Court or the trial court to join other cause of action in the instant suit for specific performance of the contract for sale, and therefore, the two Courts below acted illegally and without jurisdiction in allowing the application for addition of parties in the pending suit for specific performance of contract for sale filed at the instance of respondent Nos.1 and 4 to 11......” There is no dispute with the proposition as elaborated by the Apex Court in Kasturi's case (supra) if the party had independent title of the contract and claims possession on the basis of that title, then he may not be necessary and proper party. But, the said judgment is not applicable to the facts of the present case. The respondent No.2 entered into two different agreements one with the respondent No.1 and the other with the petitioner. The property involved in both the agreements is the same. The agreement executed by the respondent No.1 in favour of the petitioner was prior in time to the agreement with the respondent No.1. If in the absence of the petitioner, the suit filed by the plaintiff against the respondent No.2 is also decreed, who apparently, on the strength of the subsequent agreement could not be granted any relief, then there would be multiplicity of the suits. The petitioner despite being third party to the agreement to sell dated 16.7.2003 has semblance of right, title and interest in the property sought to be conveyed through the subsequent agreement to sell dated 4.3.2004 and his rights being seriously effected by way of the suit and the decree if passed on the basis of the subsequent agreement as such he is required to be impleaded Civil Revision No. 5777 of 2008 -4- *** as necessary party. A similar proposition arose before the Apex Court in case Sumtibai & Ors. vs. Paras Finance Co. Mankanwar W/o Parasmal Chordia (D) & Ors. 2007 (4) RCR (Civil) 524 : 2007 (4) Latest Judicial Reports 502, wherein the aforesaid Kasturi's case (supra) was distinguished and it was observed as under :- “9. Learned counsel for the respondent relied on a three- Judge Bench decision of this Court in Kasturi vs. Iyyamperumal and others, (2005) 6 SCC 733. He has submitted that in this case it has been held that in a suit for specific performance of a contract for sale of property a stranger or a third party to the contract cannot be added as defendant in the suit. In our opinion, the aforesaid decision is clearly distinguishable. In our opinion, the aforesaid decision can only be understood to mean that a third party cannot be impleaded in a suit for specific performance if he has no semblance of title in the property in dispute. Obviously, a busybody or interloper with no semblance of title cannot be impleaded in such a suit. That would unnecessarily protract or obstruct the proceedings in the suit. However, the aforesaid decision will have no application where a third party shows some semblance of title or interest in the property in dispute. In the present case, the registered sale deed dated 12.8.1960 by which the property was purchased shows that the shop in dispute was sold in favour of not only Kapoor Chand, but also his sons. Thus prima facie it appears that the purchaser of the property in dispute was not only Kapoor Chand but also his sons. Hence, it cannot be said that the sons of Kapoor Chand have no semblance of title and are mere busybodies or interlopers.” The aforesaid judgment is, thus, complete answer to the earlier judgment passed in Kasturi's case (supra). In this case also, the petitioner having already obtained a decree qua the same property cannot be said to be a unnecessary party as the said suit with regard to the same property, on the Civil Revision No. 5777 of 2008 -5- *** basis of the subsequent agreement is being adjudicated upon between the respondent No.1 and 2. The trial court has not properly discussed/appreciated the law laid down in Sumtibai's case (supra), hence interference has become necessary in the instant case. Resultantly, I allow this petition, set aside the impugned order dated 1.10.2008 and permit the petitioner to be impleaded as party to contest the suit. August 11, 2009 (A.N. Jindal) deepak Judge