HIGH COURT OF ORISSA: CUTTACK. W.P.(C) No. 13608 of 2010 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------- Smt. Kamalini Mohapatra … Petitioner -Versus- Gitarani Khuntia & others … Opposite Parties For Petitioner : M/s. S.S.Das, Miss Kumarika Behera, P.K.Ghosh, S.Modi and S.S. Pradhan. For Opp. Parties : M/s. D.Mohapatra, K.K.Mishra and R.K.Mohanty (for o.ps. 1 to 3) A.K.Mohapatra and H.K.Mohapatra (for o.ps.25 to 27) --------- PRESENT: THE HONOURABLE SHRI JUSTICE B.K. PATEL Date of hearing – 18.3.2011 : Date of judgment – 17.5.2011 B.K.Patel,J. In this writ application, petitioner has assailed legality of order dated 17.7.2010 passed by the learned Additional Civil Judge (Senior Division), Puri in T.S.No.45/338 of 2001/1992 allowing application under Order 1, Rule 10 of the C.P.C. filed by the opposite party nos. 1 to 3 to be impleaded as defendants. 2. Petitioner is the plaintiff and proforma opposite party nos. 4 to 27 are defendants in the suit. Plaintiff’s suit is a suit for specific performance of contract in terms of agreement for sale of suit property dated 17.7.1990 executed by deceased defendant no. 1 Saral Kumar Ghosh as well as for recovery of possession of the suit property from the defendants and for permanent injunction restraining defendants from selling the suit property to any one or encumbering the same in any manner. 3. Suit property is a piece of Khasmal Estate of the State originally leased out in favour of late Kalidas Ghosh, predecessor-in- interest of proforma opposite party nos. 4 to 24 and renewed from time to time. Plaintiff’s case is that deceased defendant no. 1 Saral Kumar Ghosh on his behalf and on behalf of his co-sharers, who had executed power of attorney in his favour, executed the suit agreement dated 17.7.1990 for sale of the suit property to the plaintiff. It was stipulated in the agreement that the sellers would obtain sanction/permission from the Collector and would give notice of receipt of the same to the plaintiff whereafter a sale deed would be executed within one year from the date of agreement or soon after the date of grant of sanction. In response to application filed by the defendants permission for sale of the suit property was accorded by Collector. Though plaintiff prepared the draft sale deed and offered the balance consideration amount to Saral Kumar Ghosh, execution of the sale deed was deferred on one pretext or another. Plaintiff issued legal notice which yielded no response. Having come to know 2 that Saral Kumar Ghosh was seeking fresh permission for sale of suit property to some other persons, plaintiff filed the suit. Late Saral Kumar Ghosh filed written statement denying the plaint averments. Execution of agreement dated 17.7.1990 is denied and it is asserted to be a manufactured document. It is pleaded that one Sridhar Mohanty forcibly occupied a portion of the suit property upon which deceased defendant no. 1 approached the police. Concerned police officer instead of taking any action suggested defendant no. 1 to execute agreement to sell in favour of a highly placed police officer so that action could be taken against above said Sridhar Mohanty who enjoyed political patronage. Taking benefit of defendant no.1’s desperate and depressed state of mind, police took his signatures on some stamp papers and blank papers. The stamp papers were used to manufacture disputed suit agreement to sell in favour of the plaintiff whose husband was a very highly placed public servant in active duty. One out of blank sheets of paper on which defendant nos. 1 had put his signature was used as an application for permission to the Collector instead of First Information Report. In view of inaction of police, deceased defendant no.1 instituted civil action against above Sridhar Mohanty for recovery of possession. Separate written statement has been filed by opposite party nos. 25 to 27 who are defendant nos. 13 (a) to 13(c) and legal heirs of above said Sridhar Mohanty. These defendants also deny the plaint averments and assert the suit agreement to be forged, fabricated and 3 sham document. According to these defendants period of lease in respect of the suit property expired in the year 1979-80. Their case is that Sridhar Mohanty @ Muduli had very good and cordial relationship with the legal heirs of late Kalidas Ghosh. In the year 1965, one of the legal heirs Srithish Kumar Ghosh as ‘karta’ and on behalf of other defendants agreed to sell the suit property to late Sridhar Mohanty who was in possession over the suit property by that time. His possession had been noted in the finally published Record of Rights. Legal heirs of Kalidas Ghosh instituted O.S. No. 277 of 1990 in the court of Sub-Judge, Puri for deleting his name but the same was withdrawn. It is alleged that late Saral Kumar Ghosh on the strength of two unregistered powers of attorney dated 15.1.1987 executed various documents including suit agreement dated 17.7.1990. It is further asserted that late Saral Kumar Ghosh executed a registered sale deed in favour of Deepak Karmakar on 2.5.1988 for which he had no subsisting interest in 1990 to execute the suit agreement. It is categorically pleaded that the whole alleged action as averred in the plaint was fraudulent and collusive, and the plaintiff had captured Saral Kumar Ghosh with the influence of her husband, who was the Director General of Police, Orissa during that time. 4. Opposite party nos. 1 to 3 filed application under Order 1 Rule 10 of the C.P.C. along with documents contending that they are necessary and proper parties to the suit. Their case is that original 4 lessee late Kalidas Ghosh executed a registered will on 20.4.1955 which was duly probated in Probate Misc. Case No. 2 of 1962 by the learned District Judge, Puri. All the beneficiaries of the will executed a registered power of attorney on 11.11.1987 in favour of deceased defendant no. 1. Saral Kumar Ghosh who sold the suit property to one Deepak Karmakar on 5.2.1988 and delivered possession. O.S. No. 277 of 1990 was a collusive suit filed by Saral Kumar Ghosh against above said Sridhar Mohanty in order to harass above said Deepak Karmakar. Opposite party nos. 1 to 3 assert to have acquired right, title and interest over the suit property on the strength of registered sale deed dated 25.3.2003 stated to have been executed by one Damodar Khuntia in whose favour above said Deepak Karmakar had executed power of attorney on 8.9.1999. It is pleaded that they have no knowledge regarding execution of the suit agreement. 5. It is pertinent to point out that application under Order 1, Rule 10 of the C.P.C. filed by opposite party nos. 1 to 3 had earlier been rejected by the learned trial court by order dated 3.2.2009 which was assailed in W.P.(C) No. 8120 of 2009. By order dated 29.6.2009 while disposing of the writ application, it was observed by this Court as follows: “The fact situation stated by the petitioner and not disputed by the opp. party does not indicate as to in whose favour the lease was renewed/granted and whether that includes the name of the husband of Gita Rani. Therefore, Gita Rani, the person sought to be impleaded being the widow would not know at all as to from whom, whose claims had his lease renewed or 5 granted. There was no proved interest in favour of her husband and therefore, there was an occasion for Gita Rani, the widow to avoid the case until by impleading her. But in this case, the vendor of the plaintiff is a party who is agitating. Even otherwise, the lower court will find out of the available evidence on record as to whether the vendor of the present petitioner has got any interest in the property so as to convey the property and in that the third party will automatically get his object achieved. I am only giving a direction to the lower court to find out from the available record that the vendor of the present petitioner has got any interest so that it can devolve upon the present third party. That any observation on either side may help the writ petitioner”. 6. Also, by order dated 30.6.2010 passed in W.P.(C) 3399 of 2010, this Court directed reconsideration of application under Order 1, Rule 10 of the C.P.C. 7. It was contended by the learned counsel for the petitioner that erroneously the learned trial court has considered the application under Order 1, Rule 10 of the C.P.C. on the wrong premises that opposite party nos. 1 to 3 are lis pendens purchasers. It was argued that opposite party nos. 1 to 10 do not claim to have acquired title over suit land from any of the parties to the suit during the pendency of the suit. It was further argued that plaintiff’s suit is a suit for specific performance of contract for sale asserted to have been entered into between the parties to the suit. Admittedly, opposite party nos. 1 to 3 were not parties to the contract for sale. It was contended that the judgment that would be passed in the suit would be a judgment inter partes and not judgment in rem and as such, it would not be binding on opposite party nos.1 to 3. Plaintiff having not claimed any relief against opposite party nos.1 to 3, they are neither necessary nor 6 proper parties to the suit in view of provisions under Sections 19 and 20 of the Specific Relief Act, 1963. Placing reliance on decision of this Court in Sadhu Behera & others –vrs.- Krishna Chandra Sutar and another : 1985 (1) OLR 38, it was strenuously argued that the third party to the contract cannot be allowed to be impleaded in a suit for specific performance of contract on the sole ground that there may be multiplicity of litigations. Plaintiff being the dominus litus, scope of a suit cannot be allowed to be enlarged at the behest of third party against whom plaintiff has not chosen to seek any relief. It was further argued that even if third party claims to be in possession over the suit land, such claim by itself does not constitute a basis for exercise of jurisdiction for impleading in a suit for specific performance of contract. In order to establish his claim third party may file a separate suit. In this context, reliance was placed on the judgment in Kasturi –vrs. Iyyamperumal : AIR 2005 SC 2813. 8. In reply, it was emphatically submitted by the learned counsel for the opposite party nos. 1 to 3 that plaintiff’s suit is not a suit for specific performance of contract simplicitor. Plaintiff has prayed also for the reliefs of recovery of possession and permanent injunction. Therefore, it was contended, decisions relied upon by the learned counsel for the petitioner is not applicable to the facts of the present case. It was further argued that in the present case opposite party nos. 1 to 3 do not claim independent title over the suit property. On the contrary, they admit antecedent title of defendant no. 1 and 7 other legal heirs of late Kalidas Ghosh and claim to have acquired title over the suit land on the basis of sale deed executed by them in favour of by their vendee Deepak Karmakar through his power of attorney holder. Impletion of opposite party nos. 1 to 3 would not in any manner change the nature and character of the suit. Claim of opposite party nos. 1 to 3 is not adverse the claim of their vendor. Rather, they claim title through their vendor. Plaintiff has not chosen to implead Deepak Karmakar, the vendor of opposite party nos. 1 and 3 for which it is imperative that opposite party nos. 1 and 3 are made parties so that there is effective adjudication of the disputes in the suit. 9. Neither of the parties to the suit nor opposite party nos. 1 to 3 deny antecedent title of late Kalidas Ghosh over the suit property. There is also no dispute that proforma opposite party nos. 4 to 27, who are original defendants, succeeded suit property from late Kalidas Ghosh. Execution of power of attorney by all the co-sharers in favor of original defendant no. 1 Saral Kumar Ghosh is also not in dispute. 10. Plaintiff’s claim is based on agreement for sale stated to have been executed by late Sarala Kumar Ghosh on 17.7.1990. Opposite party nos. 25 to 27, who are defendant nos. 13(a) to 13(c) as well as opposite party nos. 1 to 3 have pleaded regarding execution of registered sale deed by late Saral Kumar Ghosh in faovur of one Deepak Karmakar in the year 1988. Present suit was instituted in the 8 year 1992. Opposite party nos. 1 to 3 claim that sale deed in respect of the suit property was executed on 25.3.2003 by one Damodar Khuntia in whose favour above said Deepak Karmakar had executed power of attorney on 8.9.1999. It appears from the order impugned in this writ application that documents were filed before the learned trial court by opposite party nos. 1 to 3 to substantiate their claims of right, title and interest over the suit property. 11. Admittedly, plaintiff’s suit is not a suit for specific performance of contract simplicitor. Plaintiff has prayed for reliefs of recovery of possession and permanent injunction also. In Sadhu Behera & others –vrs.- Krishna Chandra Sutar and another (supra) relied upon by the petitioner, locus standi of a third party to an agreement for sale of land to be impleaded in the suit for specific performance of contract was considered. It was held: “3. The position is well settled that a person is a necessary party if in his absence, no effective decree can be passed. He is a proper party if his presence is necessary for effectual and complete adjudication. This is the principle embodied in Order 1, Rule 10 (2), C.P.C., which runs as follows: “Court may strike out or add parties—(2) The Court may at any stage of the proceeding, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the effectually and completely to adjudicate upon and settle all the questions invoked in the suit.” 9 In the present case it is conceded that the interveners-petitioners are not necessary parties since it cannot be said that no effective decree can be passed in the suit in their absence. Therefore, the question that remains to be considered is whether they are proper parties. For this the test that is to be applied is whether the presence of the absentee, parties shall be necessary in order to enable the Court to effectually adjudicate upon and settle all questions involved in the suit. As already noticed the sole prayer in the suit is to pass a decree for specific performance of a contract for sale of the lands described in the schedule within the time fixed by the Court against the defendants, failing which the same be executed by the Court in favour of the plaintiffs. There is no prayer for possession in the suit. Hence, the subject-matter for consideration in the suit relates to the enforceability or otherwise of the contract said to have been entered into between the plaintiffs and defendants. The interveners who are admittedly third parties to the contract are not concerned with the subject-matter of the suit. The question of proper parties has to be decided bearing in mind the scope of the suit. If the applicant are introduced as parties in the suit, the scope of the suit would be enlarged and it would be turned into a suit for title. For effectually and completely adjudicating upon the rights between the parties to the suit, based on the contract, the presence of the petitioners is not at all necessary. It is pertinent to note here that the judgment in the suit would be a judgment inter partes and not judgment in rem and as such, it would be operative only between the parties. The argument that to avoid multiplicity of proceedings, it would be proper to join these petitioners as parties has no substance since merely on this ground, a party which does not fall within the scope of the expression which governs the question of determining as to who is a proper party cannot be joined as proper party to the suit. If this is taken as the only test, in any litigation, no party can be termed as an ‘improper party’ even if its addition in effect is to compel the plaintiff to enlarge or change the nature of his suit. To this extent it has to be recognized that the plaintiff is the 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. This is, however, not to say that the right of the plaintiff is absolute in all circumstances since the principles is well accepted that it is subject to the Court’s discretion vested under Order 1,Rule 10, C .P. C.” (underlines supplied) 10 Thus, in the above cited decision, there was no prayer for possession in the suit property and subject- matter for consideration in the suit related to the enforceability or otherwise of the contract asserted to have been entered into between the plaintiffs and defendants. Moreover, it has been categorically observed above that in the matter of exercise of discretion under Order 1, Rule 10 of the C.P.C. for impleading a person as a party to the suit, right of the plaintiff is not absolute in all circumstances. It is subject to the Court’s discretion. 12. In Kasturi –vrs. Iyyamperumal (supra), it has been held by the Hon’ble Supreme Court that two tests which a person, who is seeking addition in a pending suit for specific performance of the contract for sale must be satisfied are-(1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings (2) no effective decree can be passed in the absence of such party. Though reliance on this decision was placed on behalf of the petitioner, learned counsel for the opposite party nos. 1 to 3 submitted that the decision does not help the petitioner in any manner. It was argued that in the decision general principles with regard to impleading a third party in a suit for specific performance of contract have been laid down, and it has been categorically held that the third party is not a necessary party only when he claims independent title and possession over the suit property. Prohibition against impleading of third party is limited to persons seeking 11 addition in the suit for specific performance of the contract on the basis of claim adverse to the title of the vendor and not to persons who are claiming under the vendor. In the present case, none of the parties to the suit nor opposite party nos. 1 to 3 deny antecedent title of deceased defendant no.1 Saral Kumar Ghosh who dealt with the suit property on behalf of his co-sharers. Plaintiff’s claim is based on agreement for sale executed by Saral Kumar Ghosh on 17.7.2009 whereas claim of opposite party nos. 1 to 3 is based on sale deed executed by Saral Kumar Ghosh in favour of Deepak Karmakar in the year 1988 who sold the suit property to opposite party nos. 1 to 3 by registered sale deed dated 25.3.2003 through his power of attorney holder. According to opposite party nos. 1 to 3, original owners had no subsisting interest in the suit property on 17.7.1990 when the contract for sale is asserted to have been executed by plaintiff in view of sale of the suit property to Deepak Karmakar on 5.2.1988. Therefore, opposite party nos. 1 to 3 claim to have acquired right, title and interest over the suit property by virtue of sale deed executed in their favour on 25.3.2003 when the suit was pending. 13. While examining the question as to whether the lis pendens transferee is a necessary and proper party to the suit, upon reference to authoritative judicial pronouncements of the Hon’ble Apex Court, this Court in Suresh –vrs. Subha : 2009 (II) OLR 984 has held: 12 “On an analysis of the principles of law, as discussed above, it is evident that the proposition of law that a lis pendens purchaser is not a necessary party to the suit is not an absolute one and the question depends upon facts and circumstances of each case and the Court in a given case has the discretion to add a pendente lite transferee as a party to the suit for a substantial justice and effectual adjudication of the suit, and also to avoid multiplicity of litigations. As per the provision of Section 52 of the T.P. Act, a transferor pendente lite is treated in the eye of law as representative-in-interest of the transferee, who shall be bound by the decree that may be passed against the transferor. Therefore a transferee pendente lite has vital interest in the suit property. In a contingency where the transferor after alienating the suit property and having no more any interest, does not properly defend the suit and colludes with the adversaries, the alienee pendente lite may be joined as a party and on motion being made, the Court should exercise its discretion judicially and an alienee should ordinarily be allowed to join the suit as a party to enable him to protect his interest. The power of a court to add a party to the proceeding may not depend solely on the question whether such party has any interest in the suit property. The Court has also to consider whether right of the said person may be affected if he is not added as a party to the suit. As a lis pendens transferee is bound by the final decree that may be passed in the suit, it is only just and proper that he should be brought on record, so as to enable him to protect his right, more so when the transferor has lost any further interest to contest the suit.” 14. While dealing with the question as to whether in a suit for declaration of title a transferee from the defendant pendente lite is a necessary or proper party, and is entitled to be impleaded, a Full Bench of this Court has held in Sri Jagannath Mahaprabhu –vrs.- Pravat Chandra Chatterjee (FB) : AIR 1992 Orissa 47: “10. Assuming that he is not a proper party, he may be impleaded as an assignee under the provisions of O.22, R.10(1). Even if an application has been filed under O.1, R.10, labeling of the application being misconceived, the court should ignore the labeling of the application as one under O.1, R.10 and treat the same 13 as one filed under O.22, R.10(1), C.P.C., if the ingredients thereof are satisfied. This aspect of the law was not brought to the notice of the Division Bench which decided Pranakrushna’ case (AIR 1989 Orissa 148) (supra) and rejected the application of the pendente lite transferee solely upon a consideration of the principles embodied in Order 1, Rule 10, CPC. 11. In the result, leave to be impleaded as parties sought by opposite parties 2 and 3 having been allowed by the court in exercise of discretion judicially, we see no merit in this revision and dismiss the