REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 5522­5523  OF 2019      

Gurmit Singh Bhatia …Appellant

Versus

Kiran Kant Robinson and others …Respondents

J U D G M E N T

M.R. SHAH , J.

Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 3.7.2013 passed in Writ Petition No. 856/2012 and

order dated 5.8.2013 passed in Review Petition No. 169/2013 in Writ

Petition No. 856/2012 by the High Court of Chhattisgarh at Bilaspur,

by which the High Court has allowed the said writ petition preferred

by  the original  plaintiffs  and has quashed and set  aside the  order

passed by the learned trial Court allowing the application preferred by

the appellant herein for impleading him as a necessary party to the

suit filed by respondent nos. 2 & 3 herein – the original plaintiffs, the

original applicant – appellant has preferred the present appeals.

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2. The facts of the case leading to these appeals in nutshell are as

follows:

Respondent nos. 2 & 3 herein – the original plaintiffs filed a suit

against respondent no.1 herein – original defendant no.1 for specific

performance of the agreement to sell/contract dated 3.5.2005

executed by respondent no.1 – original defendant no.1 in the Court of

learned 4th  Additional District Judge, Bilaspur.   That during the

pendency of the aforesaid suit and despite the injunction against

respondent no.1 herein – original defendant no.1 – original owner not

to  alienate  or transfer the  suit  property, respondent  no.1  herein  –

original defendant no.1 executed a sale deed in favour of the appellant

herein vide sale deed dated 10.07.2008.   The appellant herein –

purchaser who purchased the suit property during the pendency of

the suit filed an application in the pending suit under Order 1 Rule 10

of the CPC for impleadment as a defendant in the suit.  It was the case

on  behalf of the appellant  herein that  he  has  purchased the suit

property and is a necessary and proper party to the suit as he has a

direct interest in the suit property.  That by an order dated 5.11.2012,

the learned trial Court allowed the said application and directed the

original plaintiffs to join the appellant as a defendant in the suit.

2.1 Feeling aggrieved and dissatisfied with the order passed by the

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learned trial Court dated 5.11.2012 allowing the application and

permitting the appellant herein to be joined as a party defendant in

the suit filed by the original plaintiffs – respondent nos. 2 & 3 herein,

respondent nos. 2 & 3 herein filed writ petition No. 856/2012 before

the High Court of Chhattisgarh.  By the impugned judgment and order

dated 3.7.2013, the High Court has allowed the said writ petition and

has quashed and set aside the order passed by the learned trial Court

allowing the impleadment application preferred by the appellant

herein by holding that as regards the relief claimed against the original

defendants and as no relief has been claimed against the appellant

herein, the appellant cannot be said to be a necessary or formal party.

That thereafter the appellant preferred a review application  which

came to be dismissed.   Hence, the present appeals by way of special

leave petitions.

3. Shri Prashanto Chandra Sen, learned Senior Advocate has

appeared on behalf of the appellant and Shri M. Shoeb Alam, learned

Advocate has appeared on behalf of the original plaintiffs.

3.1 Learned Senior Advocate appearing on behalf of the appellant has

vehemently submitted that once the learned trial  Court allowed the

impleadment application submitted by the appellant herein under

Order 1 Rule 10 of the CPC holding that the appellant is a necessary

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and proper party, the High Court, in exercise of powers under Article

227 of the Constitution of India, ought not to have interfered with the

same.  

3.2 It is vehemently submitted by the learned Senior Advocate

appearing on behalf of the appellant that as such the appellant has

purchased the suit property from the same vendor and, in fact, the

appellant was prior agreement to sell holder and to protect the interest

of the appellant the appellant is a necessary and proper party.   It is

submitted  that  therefore  the  learned trial  Court  rightly  allowed the

impleadment application submitted by the appellant.

3.3 Making the above submissions and relying upon the decision of

this Court in the case of Robin Ramjibhai Patel v. Anandibai Rama @

Rajaram Pawar, reported in (2018) 15 SCC 614 and the decision of the

Bombay High Court in the case of  Shri Swastik Developers vs. Saket

Kumar Jain, reported in 2014 (2) Mh. L.J 968, it is prayed to allow the

present appeals  and quash and set  aside the  impugned  judgments

and orders passed by the High Court and restore the order passed by

the learned trial Court.

4. The present appeals are vehemently opposed by Shri M. Shoeb

Alam, learned Advocate appearing on behalf of the original plaintiffs.

It is vehemently submitted that in fact the appellant purchased the

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suit property during the pendency of the suit and that too in violation

of the injunction granted by the learned trial Court.   It is submitted

that as such the prior agreement to sell upon which reliance has been

placed by the appellant is a concocted and forged one.  It is submitted

that in any case the appellant cannot be impleaded as a defendant in

a suit  filed by the original  plaintiffs for  specific performance of the

agreement to sell/contract to which the appellant is not a party.  It is

submitted that the original plaintiffs are the dominus litis and without

their consent nobody can be permitted to be impleaded as defendant.

4.1 It is vehemently submitted that as such the issue involved in the

present case is squarely covered against the appellant in view of the

decision of this Court in the case of Kasturi v. Iyyamperumal, reported

in (2005) 6 SCC 733.

4.2 Insofar as the reliance placed upon the decision of this Court in

the case of Robin Ramjibhai Patel (supra) as well as the decision of the

Bombay High Court in the case of  Shri Swastik Developers

(supra)  by the learned  Senior  Advocate  appearing  on  behalf of the

appellant, it is vehemently submitted by Shri M. Shoeb Alam, learned

Advocate appearing on behalf of the original plaintiffs that the said

decisions shall not be applicable to the facts of the case on hand.  It is

submitted that in the aforesaid two cases, it was an application by the

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original plaintiff to implead the subsequent purchaser who purchased

the property during the pendency of the suits.  It is submitted that as

held by this Court in the case of  Kasturi(supra), it is for the

plaintiff/plaintiffs to implead a particular person/persons as

defendant/defendants and if he/they does not/do not join then it will

be at the risk of the plaintiff/plaintiffs.  It is further submitted that the

plaintiff cannot be forced to implead any other person, more

particularly who is not a party to the contract, against the wish of the

plaintiff.   It  is submitted that therefore the aforesaid two decisions,

upon which reliance has been placed by the learned Senior Advocate

appearing on behalf of the appellant, shall not be applicable to the

facts of the case on hand.  It is submitted that as such the decision of

this Court in the case of Kasturi (supra) clinches the issue and shall be

squarely applicable to the facts of the case on hand.

4.3 Making the above submissions and relying upon the decision of

this Court in the case of  Kasturi(supra), it is prayed to dismiss the

present appeals.

5. We have heard the learned counsel for the respective parties at

length.

5.1 At the outset, it is required to be noted that the original plaintiffs

filed the suit against the original owner – vendor – original defendant

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no.1 for specific performance of the agreement to sell with respect to

suit property dated 3.5.2005.  It is an admitted position that so far as

agreement to sell dated 3.5.2005 of which the specific performance is

sought, the appellant is not a party to the said agreement to sell.   It

appears that during the pendency of the aforesaid suit and though

there was an injunction against the original owner – vendor

restraining him from transferring and alienating the suit property, the

vendor executed the sale deed in favour of the appellant by sale deed

dated 10.07.2008.  After  a  period  of  approximately four  years, the

appellant filed  an  application  before the learned trial  Court  under

Order 1 Rule 10 of the CPC for his impleadment as a defendant.  The

appellant claimed the right on the basis of the said sale deed as well

as the agreement to sell dated 31.3.2003 alleged to have been

executed by the original vendor.  The said application was opposed by

the original plaintiffs.   The learned trial Court despite the opposition

by the original plaintiffs allowed the said application which has been

set aside by the High Court by the impugned  judgment and order.

Thus, it was an application under Order 1 Rule 10 of the CPC by a

third party to the agreement to sell between the original plaintiffs and

original defendant no.1 (vendor) and the said application for

impleadment is/was opposed by the original plaintiffs.  Therefore, the

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short question which is posed for consideration before this Court is,

whether the plaintiffs can be compelled to implead a person in the suit

for specific performance, against his wish and more particularly with

respect to a person against whom no relief has been claimed by him?

5.2 An identical question came to be considered before this Court in

the case of Kasturi (supra) and applying the principle that the plaintiff

is the dominus litis, in the similar facts and circumstances of the case,

this Court observed and held that the question of jurisdiction of the

court to invoke Order 1 Rule 10 CPC to add a party who is not made a

party in the suit by the plaintiff shall not arise unless a party

proposed to be added has direct and legal interest in the controversy

involved in the suit.  It is further observed and held by this Court that

two tests are to be satisfied  for  determining the question who  is a

necessary party.   The tests 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.  It is further observed and held that in a suit for specific

performance the first test can be formulated is, to determine whether a

party is a necessary party there must be a right to the same relief

against the  party  claiming  to  be a  necessary party, relating to the

same subject matter involved in the proceedings for specific

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performance of contract to sell.  It is further observed and held by this

Court that in a suit for specific performance of the contract, a proper

party is a party whose presence is necessary to adjudicate the

controversy involved in the suit.   It is further observed and held that

the parties claiming an independent title and possession adverse to

the title of the vendor and not on the basis of the contract, are not

proper parties and if such party is impleaded in the suit, the scope of

the suit for specific performance shall be enlarged to a suit for title

and possession, which is impermissible.   It  is further observed and

held that a third party or a stranger cannot be added in a suit for

specific performance, merely in order to find out who is in possession

of the contracted property or to avoid multiplicity of the suits.   It is

further observed and held by this Court that a third party or a

stranger to a contract cannot be added so as to convert a suit of one

character into a suit of different character.  In paragraphs 15 and 16,

this Court observed and held as under:

  “15. As discussed hereinearlier, whether Respondents 1 and 4 to 11 were proper parties or not, the governing principle for deciding the question would be that the presence of Respondents 1 and 4 to 11 before the court would be necessary to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit. As noted hereinearlier, in a suit for specific performance of a contract for sale, the  issue to be decided  is  the enforceability  of the contract entered into between the appellant and Respondents

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2 and 3 and whether contract was executed by the appellant and Respondents 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 Respondents 2 and 3. It is an admitted position that Respondents 1 and 4 to 11 did not seek their addition in the suit on the strength of the contract in respect of which the suit for specific performance of the contract for sale has been filed. Admittedly, they based their claim on independent title and possession of the contracted property. It is, therefore, obvious as noted hereinearlier that in the event, Respondents 1 and 4 to 11 are added or impleaded in the suit, the scope of the suit for specific performance of the contract for sale shall be enlarged from the suit for specific performance to a suit for title and possession which is not permissible  in  law. In the case  of Vijay  Pratap v. Sambhu  Saran  Sinha [(1996)  10  SCC 53] this Court had taken the same view which is being taken by us in this judgment as discussed above. This Court in that decision clearly held that to decide the right, title and interest in the suit property of the stranger to the contract is beyond the scope of the suit for specific performance of the contract and the same cannot be turned into a regular title suit. Therefore, in our view, a third party or a stranger to the contract cannot be added so as to convert a suit of one character into a suit of different character. As discussed above, in the event any decree is passed against Respondents 2 and 3 and in favour of the appellant for specific performance of the contract for sale in respect of the contracted property, the decree that would be passed in the said suit, obviously, cannot bind Respondents 1 and 4 to 11. It  may also be observed that in the event, the appellant obtains a decree for specific performance of the contracted property against Respondents 2 and 3, then, the Court shall direct execution of deed of sale in favour of the appellant in the event Respondents 2 and 3 refusing to execute the deed of sale and to obtain possession of the contracted property he has to put the decree in execution. As noted hereinearlier, since Respondents 1 and 4 to 11 were not parties in the suit for specific performance of a contract for sale of the contracted property, a decree passed in such a suit shall not bind them and  in  that  case,  Respondents  1  and 4 to  11 would  be  at

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liberty either to obstruct execution  in order to protect  their possession  by taking recourse to the relevant  provisions  of CPC, if they are available to them, or to file an independent suit for declaration of title and possession against the appellant or Respondent 3. On the other hand, if the decree is passed in favour of the appellant and sale deed is executed, the stranger to the contract being Respondents 1 and 4 to 11 have to be sued for taking possession if they are in possession of the decretal property.

16. That apart, from a plain reading of the expression used in sub­rule (2) Order 1 Rule 10 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 plaintiff­appellant 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 plaintiff­appellant 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. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of Respondents 1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made hereinearlier, Respondents 1 and 4 to 11 would not, at all, be necessary to be added in the instant suit for specific performance of the contract for sale.”

That thereafter, after observing and holding as above, this Court

further observed that in view of the principle that the plaintiff who has

filed a suit for specific performance of the contract to sell is the

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dominus litis,  he cannot be forced to add parties against whom, he

does not want to fight unless it is a compulsion of the rule of law. In

the aforesaid decision in the case of  Kasturi(supra), it was contended

on behalf of the third parties that they are in possession of the suit

property on the basis of their independent title to the same and as the

plaintiff had also claimed the relief of possession in the plaint and the

issue with regard to possession is common to the parties including the

third parties, and therefore, the same can be settled in the suit itself.

It was further submitted on behalf of the third parties that to avoid the

multiplicity of the suits, it would be appropriate to join them as party

defendants.   This Court did not accept the aforesaid submission by

observing that merely in order to find out who is in possession of the

contracted property, a third party or a stranger to the contract cannot

be  added  in  a  suit for specific  performance  of the  contract to  sell

because they are not necessary parties as there was no semblance of

right to some relief  against the party to the contract.   It is  further

observed and held that in a suit for specific performance of the

contract to sell the lis between the vendor and the persons in whose

favour agreement to sell is executed shall only be gone into and it is

also not open to the Court to decide whether any other parties have

acquired any title  and possession of the contracted property.   It is

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further observed and held by this Court in the aforesaid decision that

if the plaintiff  who has filed a suit  for specific performance of the

contract to sell,  even after receiving the notice of claim of title and

possession  by  other  persons (not  parties to the  suit  and  even not

parties to the agreement to sell for which a decree for specific

performance is sought) does not want to join them in the pending suit,

it  is always done at the risk of the plaintiff  because he cannot be

forced to join the third parties as party­defendants in such suit.  The

aforesaid observations are made by this Court considering the

principle that plaintiff is the dominus litis and cannot be forced to add

parties  against  whom he  does  not  want to fight  unless there is  a

compulsion of the rule of law.   Therefore, considering the decision of

this  Court in the case  of  Kasturi (supra), the appellant cannot  be

impleaded as a defendant in the suit filed by the original plaintiffs for

specific performance of the contract between the original plaintiffs and

original defendant no.1 and in a suit for specific performance of the

contract to which the appellant is not a party and that too against the

wish of  the plaintiffs.  The plaintiffs  cannot be forced to add party

against whom he does not want to fight.  If he does so, in that case, it

will be at the risk of the plaintiffs.

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6. Now so far as the reliance placed upon the decision of this Court

in the case of  Robin Ramjibhai Patel (supra)  and the decision of the

Bombay High Court  in the case of  Shri  Swastik Developers  (supra),

relied upon by the learned Senior Advocate for the appellant is

concerned,  the aforesaid decisions shall not be applicable to the facts

of the case on hand as in  both the aforesaid cases, it was the plaintiff

who submitted an application to implead the third parties/subsequent

purchasers who claimed title under the vendor of the plaintiff. Position

will be different when the plaintiff submits an application to implead

the subsequent purchaser as a party and when the plaintiff opposes

such an application for impleadment.   This is the distinguishing

feature in the aforesaid two decisions and in the decision of this Court

in the case of Kasturi(supra).

7. In view of the above and for the reasons stated above, we are in

complete agreement  with the view taken by the  High  Court.   No

interference of this Court is called for.   The appellant cannot be

impleaded as a defendant in the suit for specific performance of the

contract  between  the  original  plaintiffs  and original  defendant  no.1

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against the wish of the plaintiffs.   Accordingly, the present appeals

stand dismissed.  However, in the facts and circumstances of the case,

there shall be no order as to costs.

………………………………….J. [Dr. D.Y. CHANDRACHUD]

NEW DELHI; ………………………………….J. JULY 17, 2019. [M.R. SHAH]

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