i I

SUMTIBAI & OTHERS v.

PARAS FINANCE CO. REGD. PARTNERSHIP FIRM

BEAWER(RAJ.)THRUSMT.MANKANWAR W/O

PARASMAL CHORDIA (DEAD) & ORS.

OCTOBER 4, 2007

[A.K. MATHUR AND MARKANDEY KAT JU, JJ.]

Code of Civil Procedure, 1908-0. 22 R. 4(2) r/w 0. 1 R. JO- C Application under, by legal representatives-Maintainability of-Suit for specific performance of contract of sale-During pendency, death df purchaser-Legal representatives impleaded, however their application to file additional written statement rejected-Correctness of-Held: Property was purchased in favour of the deceased and his D sons-They had semblance of title and are not mere busybodies or interlopers-Merely allowing them to be impleaded but not allowing them to file additional written statement would violate natural justice-Thus, orders of courts below rejecting application to file additional written statement, set aside.

K entered into an agreement to sell his property to the respondent Respondent filed suit for specific performance of contract for sale against K. During pendency of the suit, K died and his legal representatives-appellants were impleaded. Thereafter, appellants filed F application under Order 22 Rule 4(2) read with Order 1 Rule 10 CPC seeking permission to file additional written statement and be allowed to take pleas which were available to them. Trial Court rejected the application. Aggrieved appellants filed Revision Petition which was dismissed. Hence, the present appeal.

Allowing the appeal, the Court

HELD: 1.1. Every party in a case has a right to file a written statement. A party has a right to take whatever plea he/she wants to

~3 H

A take. This is in accordance with natural justice. The Civil Procedure

Code is really the rules of natural justice which are set out in great and elaborate detail. Its purpose is to enable both parties to get a hearing.

[Paras 5 and 8] (547-B; 546-C]

B 1.2. It cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. If C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to r; nultiplicity of C proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced. [Para 14] (550-E, F, G]

2.1. In the instant case, the registered sale deed by which the D property was purchased shows that the shop in dispute was sold in favour of not only K but also his sons. Thus, prim a facie it appears that the purchaser of the property in dispute was not only K but also his sons.

Hence, it cannot be said that the sons ofK have no semblance of title and are mere busybodies or interlopers. The legal representatives of E late K have a right to take this defence whether they are co-owners or not byway of filing an additional written statement and adduce evidence in the suit. Whether this defence is accepted or not, of course, is for the trial court to decide. [Paras 7 and 9) [546-F, G; 547-A, F, G]

F 2.2. Appellants have already been made parties in the suit, but it would be strange if they are not allowd to take a defence. Merely because some applications have been rejected earlier it does not mean that the legal representatives oflate K should not be allowed to file an additional written statement. In fact, no useful purpose would be served G by merely allowing these legal representatives to be impleaded but not allowing them to file an additional written statement. This will clearly violate natural justice. Hence, the courts below erred in law in rejecting the applications of the heirs ofK to file an additional written statement.

The impugned orders of the High Court as well as the trial court are set H aside. The appellants shall be allowed to file additional written statement

SUMTIBAI v. PARAS FINANCE CO. REGD. 545

PARTNERSHIP FIRM BEA WER (KATJU, J.]

and thereafter the suit should proceed expeditiously in accordance with A law. [Paras 15and16) [550-G; 551-A, B)

Kasturi v. Iyyamperumal and Ors., [2005) 6 SCC 733, distinguished.

StateofOrissav.SudhansuSekhar Misra, AIR(1968)SC647; Ambica Quarry Worksv. State of Gujarat and Ors., [1987] 1SCC213; Bhavnagar B Universityv. Palitana Sugar Mills Pvt. Ltd, (2003) 2 SC 111; and Bharat

,._ Petroleum Corporation Ltd and Anr. v. NR Vairamani and Anr., AIR

(2004) SC 4778, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 117 of C 2001.

From the Judgment and final Order dated 07.01.2000 of the High Court of Judicature ofRajasthan at Jodhpur in S.B. Civil Revision Petition No. 835of1997.

B.D. Sharma, Narottam Vyas and Vikramjeet Sikand for the D Appellants.

Sushil Kumar Jain, H.D. Thanvi and Piyush Jain for the Respondents.

The Judgment of the Court was delivered by

MARKAAl>EY KAT JU, J. 1. This appeal has been filed against the impugned judgment and order dated 7 .1.2000 in S.B. Civil Revision Petition No. 835of1997.

2. Heard learned counsel for the parties and perused the record.

3. The Revision Petition was filed in the High Court against an order dated 6.8.1997 passed by the trial court whereby the application filed by the revisionists under Order 22 Rule 4(2) CPC read with Order 1 Rule

10 CPC was rejected.

4. The appellants are the legal representatives oflate Kapoor Chand.

A suit was filed by the respondent herein against Kapoor Chand for specific perfomlance of a contract for sale. It was alleged that Kapoor Chand had entered into an agreement to sell the property in dispute to the plaintiffrespondent, Mis. Paras Finance Co. In that agreement Kapoor Chand H

A stated that the property in dispute was his self acquired property. During the pendency of the suit Kapoor Chand died and his wife, sons etc. applied to be brought on record as legal representatives. After they were impleaded they filed an application under Order 22 Rule 4(2) read with Order 1 Rule 10 CPC praying inter alia, that they should be permitted B to file additional written statement and also be allowed to take such pleas which are available to them. The trial court rejected this application against

which a revision was filed by the appellant which was also dismissed by 4 the High Court. Hence this appeal by special leave.

5. We are of the opinion that a party has a right to take whatever C plea he/she wants to take, and hence the view taken by the High Court does not appear to be correct.

6. Learned counsel for the respondent submitted that in view of Order 22 Rule 4(2) a person who has been made a party can only take D such pleas which are appropriate to his character oflegal representative of the deceased. Learned counsel also submitted that two of the applicants/legal representatives. of deceased Kapoor Chand, i.e. Narainlal and Devilal, had applied to the court under Order 1 Rule 10 to be impleaded, but their applications were rejected. An application was also E filed by late Kapoor Chand praying that his sons be impleaded in the suit but that application was also rejected. Hence, the learned counsel submitted that the appellants cannot be permitted to file an additional written statement in this suit.

F 7. Before adverting to the question involved in this case, it may be noted that in the registered sale deed dated 12.8.1960 the shop in dispute has been mentioned and the sale was shown in favour of Kapoor Chand and his sons, Narainlal, Devilal and Pukhraj. Hence, the registered sale deed itself shows that the purchaser was not Kapoor Chand alone, but G also his sons as co-owners. Hence, primafacie, it seems that the sons of Kapoor Chal).d are also co-owners of the property in dispute.

However, we are not expressing any final opinion on the question whether they are co-owners as that would be decided in the suit. But we are certainly of the opinion that the legal representatives of late Kapoor Chand H have a right to take this defence by way of filing an additional written

SUMTIBAI v. PARAS FINANCE CO. REGD. 547

PARTNERSHIP FIRM BEA WER [KA TJU, J.]

statement and adduce evidence in the suit. Whether this defence is A accepted or not, of course, is for the trial court to decide. Hence, in our opinion, the courts below erred in law in rejecting the applications of the heirs of Kapoor Chand to file an additional written statement.

8. Every party in a case has a right to file a written statement. This B is in accordance with natural justice. The Civil Procedure Code is really the rules of natural justice which are set out in great and elaborate detail.

Its purpose is to enable both parties to get a hearing. The appellants in the present case have already been made parties in the suit, but it would be strange if they are not allowed to take a defence. In our opinion, Order C 22 Rule 4(2) CPC cannot be construed in the manner suggested by learned counsel for the respondent.

9. Learned counsel for the respondent relied on a three-Judge Bench '.decision of this Court in Kasturi v. lyyamperumal and Ors., [2005] 6

SCC 733. He has submitted that in this case it has been held that in a D 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 tp mean that a third p~ cannot be imp leaded in a suit for specific performance if he E has no semblance of title in the property in dispute. Obviously, a busybody or interloper with no semblance of title cannot be irnpleaded 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 F 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 0 of Kapoor Chand have no semblance of title and are mere busybodies or interlopers.

10. As observed by this Court in State of Orissa v. Sudhansu Sekhar Misra, AIR (1968) SC 647 vide para 13:- H

"A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Earl ofHalsbury, LC said in Quinn v. Leathern, (1901) AC 495:

"Now before discussing the case of Allen v. Flood (1898) AC 1 and what. was dec'ided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an a\lthority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically fi:om it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all."

11. InAmbica Quarry Works v. State of Gujarat & Ors. [1987] 1 SCC 213 (vide para 18) this Court observed:-

"The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it."

12. In Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd,

(2003) 2 SC 111 (vide para 59), this Court observed:-

"It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. "

13. As held in Bharat Petroleum Corporation Ltd & Anr. v.

SUMTIBAI v. PARAS FINANCE CO. REGO. 549

PARTNERSHIP FIRM BEAWER [KATJU, J.]

NR. Vairamani & Anr., AIR (2004) SC 4778, a decision cannot be relied A on without disclosing the factual situation. In the same Judgment this Court also observed:-

"Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the B decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of the context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. C To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. D

In London Graving dock co. Ltd. v. Horton, (1951AC737 at p. 761), Lord Mac Dermot observed:

"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of E Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."

In Home Office v. Dorset Yacht Co., (1970) 2 All ER 294 Lord Reid said, "Lord Atkin' s speech .... is not to be treated as F if it was a statute definition it will require qualification in new circumstances." Megarry, J. in (1971)1WLR1062 observed: "One must not, of course, construe even a reserved judgment of Russell L. J. as ifit were an Act of Parliament." And, in Herrington

v. British Railways Board (1972 (2) WLR 537) Lord Morris said: G

"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case." H

A Circumstantial flexibility, one additional or different fact may

make a world of difference between conclusions 'in tWo cases.

Disposal of cases by blindly placing reliance on a decision is not proper.

The following words of Lord Denning in the matter of applying precedents have become locus classicus:

"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J. ) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."

*** *** ***

"Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches.

E My plea is to keep the path of justice clear of obstructions which could impede it."

14. In view of the aforesaid decisions we are of the opinion that Kasturi 's case (supra) is clearly distinguishable. In our opinion it cannot F be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. In our opinion, if C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to multiplicity of proceedings because G then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced.

15. Also, merely because some applications have been rejected earlier it does not mean that the legal representatives oflate Kapoor Chand H

SUMTIBAI v. PARAS FINANCE CO. REGD. 551

PARTNERSHIP FIRM BEAWER [KATJU, J.]

should not be allowed to file an additional written statement. In fact, no A useful purpose would be served by merely allowing these legal representatives to be impleaded but not allowing them to file an additional written statement. In our opinion, this will clearly violate natural justice.

16. For the reasons aforementioned, the impugned orders of the High B Court dated 7.1.2000 as well as the trial court dated 6.8.1997, are set aside.

The appellants shall be allowed to file additional written statement and thereafter the suit should proceed expeditiously in accordance with law. c 1 7. The appeal is allowed. There shall be no order as to costs.

NJ.

Appeal allowed.