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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 11029-30 OF 2018 (Arising out of SLP (C) Nos. 32725-32726/2014)

HARI MOHAN SHARMA & ANR.                       Appellant(s)

                               VERSUS

CHARANJEET SINGH REKHI & ORS. ETC.             Respondent(s)

WITH CIVIL APPEAL NOS. 11031-33 OF 2018

(Arising out of SLP(C) Nos. 28958-28960/2014)  

J U D G M E N T

   R.F. Nariman, J.

1) Leave granted.

2) In both these cases, suits for specific performance

have been filed.  The narrow question that arises is

whether one Charanjeet Singh Rekhi and his wife - Manjit

Kaur, who are Defendant Nos. 2 & 3 in SLP (C) Nos. 32725-

32726 of 2014 and Defendant Nos. 1 & 2 in SLP (C) Nos.

28958-28960/2014 are persons who do not purport to be who

they say they are.  This arises out of I.As that have

been filed by two other Charanjeet Singh Rekhis’, one

belonging  to  Moradabad  and  the  other  belonging  to

Uttarakhand, stating that each one of them are Defendant

Nos. 1 & 2 and Defendant Nos. 2 & 3 respectively in these

suits,  and  considering  that  it  should  conclusively  be

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determined as to who the correct defendants are, they are

necessary parties to both specific performance suits.   

3) The  learned  Single  Judge  of  the  High  Court  of

Delhi, by judgment dated 05.03.2013, held that a question

of mistaken identity cannot be gone into in a specific

performance suit, as the persons who have filed the I.As

are either necessary or proper parties to the suits for

the reason that the plaintiff does not claim anything

against them but only against one Charanjeet Singh Rekhi,

who belongs to Delhi, and who has since died.  His wife,

Manjit Kaur, is no longer in India and resides in the

United States. Both the I.As were, therefore, dismissed.

4) In  an  appeal  filed  to  the  Division  Bench,  this

judgment was reversed stating:

“35.  It is contended that the appellants are

not parties to the contract and therefore, are

not necessary parties in a suit for specific

performance  of  the  contract.   In  our  view,

treating  the  appellants  as  separate  from

Charanjeet  Singh  Rekhi  &  Manjit  Kaur  Rekhi

would  be  an  erroneous  assumption  as  their

application  under  Order  1  Rule  10(2)  is

premised on the basis that they are Charanjeet

Singh  Rekhi  &  Manjit  Kaur  Rekhi  or  are

claiming  through  them.   Indisputably,

Charanjeet  Singh  Rekhi  &  Manjit  Kaur  are

parties to the contract which is sought to be

specifically enforced.  The appellants may not

have signed the contract but are claiming to

be the persons who are named therein.  In this

situation,  would  it  be  open  for  the

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respondents to contend that the appellants who

claim to be Charanjeet Singh Rekhi & Manjit

Kaur Rekhi are not parties to the contract.

We think not.  The very assumption that the

parties to the contract are persons other than

the appellants  or their  predecessors is  the

controversy  that  has  been  raised  by  the

appellants.   The  only  question  that  thus

arises is whether this controversy has to be

decided in the present suits or whether the

appellants  are  to  be  relegated  to  filing

separate  suit(s).   It  is  obvious  that  this

controversy would have to be settled in order

that  the  controversy  with  regard  to  any

agreement entered into by the Charanjeet Singh

Rekhi  &  Manjit  Kaur  Rekhi  can  be  decided.

Thus, in our view, it would be apposite if

this  controversy  is  decided  in  the  present

suit in order that all the disputes in the

present suit can be effectively adjudicated.”

5) Having heard learned counsel for the parties, we

are of the view that the Single Judge is correct.  The

plaintiff in both the suits for specific performance is

dominus litus and has chosen Charanjeet Singh Lekhi who

resides in Delhi (since deceased) and his wife Manjit

Kaur as persons against whom the lis exists.   

6) It is clear that if ultimately it is found that

there  is  no  cause  of  action  against  either  of  these

people,  his  suit  will  fail;  or  if  it  is  found,  in

execution proceedings, that the aforesaid persons have

nothing to do with the agreement to sell in question,

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such execution proceedings will fail.  That is the risk

that the plaintiff takes in these matters.  It is clear,

therefore, that persons who state that they happen to be

Defendant  Nos.  1  &  2  and  Defendant  Nos.  2  &  3

respectively in the two suits are persons who have to

take independent proceedings against the said defendants

and/or the plaintiff if they allege collusion between the

plaintiff and the defendants.  

7) Learned  counsel  appearing  on  behalf  of  the

respondents has supported the impugned judgment and has

cited to us a judgment dated 04.10.2007 in Civil Appeal

No.  117  of  2001  titled  Sumtibai  &  Others vs.  Paras

Finance Co. Mankanwar W/o Parasmal Chordia (D) & Ors. in

which this Court has stated that there can be no absolute

proposition that whenever a suit for specific performance

is filed, a third party can never be impleaded in that

suit.  These observations were made in the context of a

sale deed that had been entered into with one Kapoor

Chand and his two sons.  After Kapoor Chand died, his two

sons wished to take up certain additional pleas in an

additional written statement sought to be filed by them.

This was ultimately allowed by this Court, stating that

the registered sale deed itself shows that the purchaser

was not Kapoor Chand alone, but also his sons as co-

owners.  Hence, prima facie ,the sons of Kapoor Chand are

also co-owners of the property in dispute and, therefore,

have  some  semblance  of  title.   It  was  in  this  fact

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situation that the judgment in  Kasturi vs.  Iyyamperumal

and Others, (2005) 6 SCC 733 was distinguished.

8) We are of the view that the aforesaid judgment has

no application on the facts of the present case.  The

case pleaded before us is that the person mentioned as

Defendant Nos. 1 & 2 and Defendant Nos. 2 & 3 in the two

suits are, in fact, the persons mentioned in the two

I.As. This being clear, the plaintiff in the specific

performance suit has no  lis against such persons, and

have chosen to have a lis only against Defendant Nos. 1 &

2 and 2 & 3 (original).

9) This being the case, it is clear that the persons

in the I.As are neither necessary nor proper parties in

the present adjudication.

10) The  appeals  are,  accordingly,  allowed  and  the

Division Bench judgment is set aside and restored to that

of the single Judge.  

  .......................... J.    (ROHINTON FALI NARIMAN)

  .......................... J.              (NAVIN SINHA)

New Delhi; November 16, 2018.