At, High Court of Karnataka Circuit Bench OF Kalaburagi
By, THE HONOURABLE MRS. JUSTICE B.V. NAGARATHNA & THE HONOURABLE MR. JUSTICE B.A. PATIL
For the Appellant: R.S. Sidhapurkar, Advocate. For the Respondents: ----------
(Prayer: This Regular First Appeal is filed under Section 96 R/W Order 41 Rule 1 of CPC praying to allow the appeal and set aside the judgment and decree passed in OS Old No.37/2010, New No.106/2011 dated 1.7.2013 passed by the learned Senior Civil Judge, at Humnabad and decree the suit with costs throughout.)
B.A. Patil, J.
1. Though this appeal is listed for admission, with the consent of learned counsel for the appellant it is heard finally. The respondents are served and have not appeared, either in-person or through counsel.
2. This regular first appeal is directed against the judgment and decree passed by the Senior Civil Judge, Humnabad in O.S. Old No.37/2010 (New No.106/2011) dated 01.07.2013.
3. The brief facts for filing the suit are that, plaintiff filed the suit for partition and separate possession of suit schedule properties, contending that the suit schedule properties are joint family properties of herself and defendant Nos.1 and 2. That defendant Nos.1 and 2 are the parents of the plaintiff and they constitute a Hindu Joint Family. It is further contended that plaintiff and defendants are co-owners and co-possessors of suit schedule properties. It is further alleged that defendant No.1, father of the plaintiff has no knowledge regarding current worldly affairs including family affairs as he had served in the Army. It is further alleged that he is a chronic alcoholic and addicted to substances. By taking undue advantage, defendant Nos.3 and 4 came in contact with defendant No.1 and having regard to his weakness for alcohol, they conspired to knock off the suit properties and they obtained his signatures on a got up alleged agreement of sale when defendant No.1 was in a state of intoxication. The said agreement is false and a created agreement of sale. It is further contended that on the basis of such agreement of sale, defendant Nos.3 and 4 are obstructing peaceful possession and enjoyment of suit properties. It is further contended that the agreement of sale is without consent and without the knowledge of plaintiff and defendant No.2. That the said agreement of sale is not binding on the plaintiff as she is having one-third share in the suit schedule properties. As such, she requested the defendants to award her share, but defendants were not ready to heed to her request, as such she was constrained to file the suit and prayed for decreeing the suit.
4. After service of summons defendants appeared. Defendant Nos.1 and 2 filed separate but similar written statement. Defendant No.4 also filed written statement and it was
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adopted by defendant No.3. Defendant Nos.1 and 2 admitted the contents of suit averments and further contended that defendants Nos.3 and 4 by taking undue advantage of defendant No.1, who was addicted to alcohol created an agreement of sale. Further it is contended that the agreement of sale is void ab inito. It is further contended that defendant Nos.1 and 2 have got one-third share, as such they requested to declare the alleged agreement of sale as void as it is the outcome of fraud and inducement made by defendants No.3 and 4.5. Per contra, defendant No.3 and 4 contended that defendant No.1 is the owner of suit land. Since he was in need of money for legal necessity and for discharge of family debts, he entered into an agreement of sale to sell the suit property in favour of defendant No.3 and 4 for a consideration of Rs.10,00,000/-. It is further contended that after negotiation, defendant No.1 by receiving Rs.4,00,000/- as part consideration executed the registered agreement of sale on 18.4.2009 in the presence of Sub-Registrar, Humnabad and it is attested by witnesses. It is further contended that the agreement of sale executed by defendant No.1 is for family benefit and it is to the knowledge of plaintiff and defendant No.2. The part consideration amount received by defendant No.1 has been utilized for the purpose of family necessities. They further contend that they have filed O.S.No.46/2011 against defendant No.1 for specific performance of agreement of sale, as such the present suit is not maintainable. It is further contended that plaintiff is not entitled to file the present suit through maternal uncle since he is not a fit person to act as guardian of plaintiff. It is further contended that the guardian of the plaintiff has not obtained the certificate from the Hon’ble Court, as such the suit is liable to be dismissed.6. On the basis of the above pleadings, issues were framed and the trial Court by considering issue No.4 as a preliminary issue dismissed the suit of the plaintiff. Being aggrieved by the same, the present regular first appeal has been filed before this Court.7. The main grounds urged by the learned counsel for the plaintiff/ appellant are that the impugned judgment and decree is erroneous besides being against law and facts. It is further contended that the trial Court has committed an error in not noticing the fact that the relief claimed in O.S.No.46/2011 is for the relief of specific performance of agreement of sale dated 18.4.2009 but the present suit was for partition and separate possession of the joint family properties. The dismissal of the suit of the plaintiff is not in accordance with law. He would further contend that the observation of the trial Court by directing the plaintiff/appellant herein to implead in the suit for specific performance of agreement of sale amounts to nothing but mis-joinder of causes of action. He would further contend that impleading of parties is at the discretion of the plaintiff. Plaintiff would not implead a person against whom he does not seek any relief or if he is not a necessary or a proper party. As such the appellant herein is not a necessary party in the suit for specific performance. When plaintiff is not a necessary party to the suit for specific performance, then under such circumstances question of plaintiff filing an impleading application in O.S.No.46/2011 filed by defendant No.3 and 4 seeking specific performance of the agreement of sale does not arise. He would further contend that the observation of the trial Court that the uncle cannot be a guardian is not a correct proposition and not obtaining the guardian certificate is only a irregularity, not an illegality which cannot be cured. On these grounds he prayed for allowing the appeal.8. As already noted though notices were served on respondent Nos.1 to 4, they are unrepresented.9. The main contention of the learned counsel for the appellant is that the impugned judgment and decree is erroneous besides being against law and facts. As could be seen from the order of the trial Court, on the basis of pleadings of the respective parties it framed as many as seven issues and issue No.4 reads as under;“Whether the defendant No.4 proves that in view of pendency of O.S.No.46/2011 the present suit is not maintainable”?10. It is an admitted fact that the plaintiff is the daughter of defendant No.1 and 2 and she had filed the suit for partition and separate possession of her one third share in the suit schedule properties. It is also an admitted fact that defendant Nos.3 and 4 have also filed O.S. No.46/2011 against defendant No.1 for the relief of specific performance of contract in respect of an agreement of sale dated 18.4.2009. The trial Court while answering issue No.4 has observed that if plaintiff is having any share in the suit schedule property or defendant No.2 is having any right, title or interest over the suit property, they ought to have filed an impleading application in O.S.No.46/2011, filed by defendant No.3 and 4, there rights of both the parties would be decided. Further by observing that since guardianship certificate had not been obtained from the competent Court, the suit came to be dismissed.11. By going through the material on record, we are of the considered opinion that the trial Court erred in dismissing the suit, by holding that the plaintiff has to file an impleading application in the suit for specific performance filed by defendants No.3 and 4. The general rule regarding impleading of parties is that, the person who is having a right or an interest in the suit property can be impleaded as a party and it is for the plaintiff as the dominus litis to choose the person against whom he wishes to litigate and he cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who cannot be a party to a suit has no right to be impleaded against the wish of the plaintiff. This proposition of law has been observed by the Hon’ble Supreme Court in the following paragraphs in the case of Baluram Vs. P. Chellathangam and others reported in (2015) 13 SCC 579 by relying upon Mumbai International Airport (P) Ltd. Vs. Regency Convention Centre and Hotels (P) Ltd. reported in (2010) 7 SCC 417.“13. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10 (2) of the Code of Civil Procedure (‘the Code’, for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:‘10.(2) Court may strike out or add parties.- The Court may at any stage of the proceedings, 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 be may necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.’14. The said provision makes it clear that a Court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the Court may be necessary in order to enable the Court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the Court is given the discretion to add as a party, any person who is found to be a necessary party or proper party.15. A ‘necessary party’ is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a ‘necessary party’ is not impleaded, the suit itself is liable to be dismissed. A ‘proper party’ is a party who, though not a necessary party, is a person whose presence would enable the Court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the Court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/ interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.* * * *19. Referring to suits for specific performance, this Court in Kasturi V. Iyyamperumal (2005) 6 SCC 733: AIR 2005 SC 2813, held that the following persons are to be considered as necessary parties: (i) the parties to the contract which is sought to be enforced or their legal representatives; (ii) a transferee of the property which is the subject-matter of the contract. This Court also explained that a person who has a direct interest in the subject-matter of the suit for specific performance of an agreement of sale may be impleaded as a proper party on his application under Order 1 Rule 10 CPC. This Court concluded that a purchaser of the suit property subsequent to the suit agreement would be a necessary party as he would be affected if he had purchased a title adverse to that of the defendant vendor will not be a necessary party.* * * *22. Let us consider the scope ambit of Order 1 Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the Court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The Court can strike out any party who is improperly joined. The Court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the Court deems fit to impose. In exercising its judicial discretion or Order 1 Rule 10(2) of the Code, the Court will of course act according to reason and fair play and not according to whims and caprice.”12. The Hon’ble Apex Court by referring to the decision of Kasturi Vs. Iyyamperumal reported in (2005) 6 SCC 733 has observed that, in a suit for specific performance of a contract, the parties to the contract, which is sought to be enforced or their legal representatives, a transferee of a property, which is subject matter of the contract and a person who has direct interest in the subject matter of the suit for specific performance of an agreement for sale may be impleaded as a proper party. In that light, the observation of the trial Court that the plaintiff ought to have filed an impleading application in O.S.No.46/2011 filed for specific performance by defendant No.3 and 4 and get herself impleaded in that suit cannot be considered to be correct. If she is permitted to ventilate her grievances against the defendants in that suit as a co-defendant, then it will amount to mis-joinder of causes of action. The present appellant-plaintiff cannot be permitted to file an impleading application in the said suit as she is not considered to be a necessary party to the said sale agreement.13. Be that as it may. As per the provisions of Section 22 of the Specific Relief Act, a person suing for specific performance of a contract can seek possession or partition and separate possession of the property in addition to such performance. For immediate reference Section 22 of the Specific Relief Act is extracted as under:“22. Power to grant relief for possession, partition, refund of earnest money, etc.- (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for-(a) possession, or partition and separate possession, of the property, in addition to such performance; or(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or [made by] him, in case his claim for specific performance is refused.(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed:Provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.(3) The power of the Court to grant relief under clause (b) of sub-section 91) shall be without prejudice to its powers to award compensation under section 21.On going through the said proposition of law, it becomes clear that a person suing for the specific performance of a contract can ask for partition and separate possession of the property. But, it would not enable a third party who is also having interest in the property to get himself impleaded in the said suit as a defendant and seek such reliefs. In this case, the said provision also does not help the plaintiff-appellant in any manner. It is our considered view that the scope of suit for partition is wider than the suit for specific performance and if at all the Court below was intending to see that the rights of the parties are to be determined and adjudicated properly and effectively without drawing them to multiplicity of proceedings then under such circumstances it could have clubbed the suit of specific performance with the suit for plaintiff or vice-versa instead of directing the plaintiff- appellant to file an impleading application in the suit filed for specific performance. In light of the above discussion, the impugned order is not sustainable in law and the same is liable to be set aside.14. Though the trial Court has observed that the plaintiff without obtaining G. & W. C. Certificate from the competent Court has filed the suit and the suit is not maintainable as per the provisions of Order XXXII Rule 4 of CPC, as that was not the issue in preliminary issue (issue No.4), the trial Court even though it has not answered on all issues, but by taking into consideration the aspect of appointment of guardian under Guardian and Wards Act has dismissed the suit erroneously without application of mind. In that regard also the impugned order is liable to be set aside.For the reasons stated above, we allow this appeal by setting aside the impugned order dated 1.7.2013 and remit back the matter to the trial Court by restoring the suit to its original file with a direction to dispose of the same in accordance with law in light of the above observations.No costs.Per Nagarathna J. (supplementing)I have had the advantage of going through the judgment proposed by my esteemed brother, B.A. Patil, J. While I agree with the conclusions arrived at by him, I wish to add a few words of my own.2. The main point for consideration in this appeal is, as to whether, the trial court could have directed the appellant herein who had filed the suit seeking the relief of partition and separate possession of the suit schedule property to implead herself in O.S.No.46/2011 which is a suit filed for specific performance of an agreement of sale dated 18.04.2009 filed by defendant Nos.3 and 4 i.e. respondent Nos.3 and 4 herein by holding that the suit for partition and separate possession is not maintainable. The controversy revolves on the question of impleadment in the suit for specific performance filed by respondent Nos.3 and 4 herein. On the issue as to who could be a party to a suit for specific performance and, as to whether, a stranger or a third party could be impleaded in such a suit, the same is no longer res integra. In Kasturi vs. Iyyamperumal and others reported in (2005) 6 SCC 733, the Hon’ble Supreme Court on referring Order I Rule 10 (2) CPC has observed that, “the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead, their legal representatives as also a person who had purchased the contracted property from the vendor”. In equity as well as in law, the contract constitutes rights and regulates liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. Thus, the Hon’ble Supreme Court has laid down two tests to be satisfied for determining the question as to who is a necessary party. The tests are as under:(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.3. Reference could be made to Section 19 of the Specific Relief Act, 1963 and it has been held that when persons seeking addition in the suit for specific performance of the contract for sale who were not claiming under the vendor but they were claiming adverse to the title of vendor, do not fall in any of the categories enumerated in sub-sections (a) to (e) of Section 19 of the said Act. On the above aspect, in Kasturi’s case the Hon’ble Supreme Court at paragraph Nos.11 and 16 has observed as under:“11. As noted hereinearlier, two tests are required to be satisfied to determine the question who is a necessary party, let us now consider who is a proper party in a suit for specific performance of a contract for sale. For deciding the question who is a proper party in a suit for specific performance the guiding principle is that the presence of such a party is necessary to adjudicate the controversies involved in the suit for specific performance of the contract for sale. Thus, the question is to be decided keeping in mind the scope of the suit. The question that is to be decided in a suit for specific performance of the contract for sale is to the enforceability of the contract entered into between the parties to the contract. If the person seeking addition is added in such a suit, the scope of the suit for specific performance would be enlarged and it would be practically converted into a suit for title. Therefore, for effective adjudication of the controversies involved in the suit, presence of such parties cannot be said to be necessary at all.xxx16. That apart, from a plain reading of the expression used in sub-rule (2) Order 1 Rule 10 of the CPC “all the questions 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 Respondents 2 and 3 and Respondents 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. xxx”The aforesaid observations have been referred to in Mumbai International Airport (P) Ltd. vs. Regency Convention Centre and Hotels (P) Ltd. reported in (2010) 7 SCC 417 and the same has been relied upon in Baluram vs. P. Chellathangam reported in AIR 2015 SC 1264.4. However, there is another aspect of the matter, which may be noted, as the controversy in substance in this appeal pertains as to the parties who can be added in suit for specific performance. In this regard, reference could be made to Thomson Press (India) Limited vs. Nanak Builders and Investors Private Limited and others reported in (2013) 5 SCC 397. Although that case touched upon Section 52 of the Transfer of Property Act and with regard to the purchase of the property which is the subject of a suit for specific performance during the pendency of the suit, nevertheless in that case it is held that when the subject matter of a suit for specific performance is transferred during the pendency of the litigation, in that event, under Order XXII Rule 10 of CPC a trasferee of the suit property could be impleaded as a party to the proceeding and be heard before any order is made. This is because a transferee pendente lite would claim an interest in the subject matter of the suit under the vendor who would be a defendant in a suit for specific performance. In this context, reference could also be made to Section 19 (c) of the Act wherein it has been categorically stated that specific performance of contract may be enforced against either party thereto or any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. This is because a transfer pendente lite is not illegal but would remain subservient to the pending litigation as held by the Hon’ble Supreme Court in Nagubai Ammal vs. B. Shama Rao reported in AIR 1956 SC 593 and several such decisions of the Hon’ble Supreme Court. In the case of a transferee pendente lite he would be in a similar position as a heir or a legatee of a party who dies during the pendency of the suit or a proceeding and therefore could seek impleadment under Order XXII Rule 10 CPC. Particularly, if he is a bonafide purchaser for valuable consideration, he would have to be heard before passing a decree in respect of the subject matter of the suit which has been purchased by him.5. Thus, in the instant case the trial court could not have directed the appellant herein to implead herself in the suit for specific performance filed by respondent Nos.3 and 4 herein against defendant No.1.6. With the above addition, I agree with the judgment passed by my esteemed brother, B.A. Patil, J. and this appeal has to be allowed and the matter has to be remanded to the trial court for fresh disposal in terms of the observations made above.