Anil Kumar Singhania and Another vs Ananga Mohan Banerjee and Others

Prasenjit Mandal, J.—This application is at the instance of the plaintiffs and is directed against the order No. 27 dated March 27, 2009 passed by the learned Civil Judge (Senior Division), Second Court, Barasat in Title Suit No. 210 of 2008 thereby allowing an application under Order 1 Rule 10(2) of the Code of Civil Procedure.

The plaintiffs filed the Title Suit No. 252 of 2009 (subsequently renumbered) for specific performance of contract against the opposite party Nos. 3 to 5. In that suit, the defendants appeared. The plaintiffs filed an application for temporary injunction and the learned Trial Judge granted an order of status quo upon both the parties. Being aggrieved, the plaintiffs filed an appeal before this Hon''ble Court. That appeal being numbered F.M.A.T. No. 77 of 2008 was disposed of by a Division Bench of the Hon''ble Court observing that the suit having already been filed any transfer made during the pendency of the suit will be hit by the doctrine of lis pendens and that if the defendants want to transfer the property to a third party, they must disclose in the sale deed that such transfer will abide by the decision of the main suit after giving the number of the suit. The opposite party Nos. 1 & 2 filed an application for addition of parties in the said suit and that application was allowed by the learned Trail judge by the impugned order holding that those persons were required to be added as parties to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. Being aggrieved by the said order, the plaintiffs have come up with this application.

Now the point of consideration in this application is whether the learned Trial Judge was justified in allowing those two persons as parties to the suit filed by the plaintiffs.

Upon hearing the learned Advocate of both the sides and perusal of the materials on record and also the written arguments filed by the parties, I find that the plaintiffs filed the suit for specific performance of contract for sale of an immovable property on the basis of an agreement for sale dated May 15, 2007. Thereafter, on November 29, 2007, the opposite party Orders 1 & 2 filed an application for addition of parties in the said suit on the ground that they entered into an agreement for sale dated July 7, 2007 with the defendant Nos. 1 to 3 (opposite party Nos. 3 to 5) in respect of the selfsame property and that they paid the entire consideration money of Rs. 38.50 lakh to the defendant Nos. 1 to 3, who simultaneously, handed over the physical possession of the suit property to them and also issued a letter of possession to them.

At the time of filing of the suit, the plaintiffs filed an application for temporary injunction and then the learned Trial Judge granted an order of status quo initially upon both the parties. Ultimately, the injunction matter went to the Hon''ble High Court being numbered as F.M.A.T. No. 77 of 2008 which was disposed of by a Division Bench of this Court holding that any transfer made during the pendency of the suit will be hit by the doctrine of lis pendens.

Thereafter, by the impugned order, the learned Trial Judge allowed the application for addition of parties.

The specific contention of the plaintiffs is that the agreement for sale of specific immovable property, as described in the schedule of the plaint, was held between the plaintiffs and the defendant Nos. 1 to 3 by an agreement for sale dated May 15, 2007 and for that purpose, an amount of Rs. 5 lakh was paid as advance. Therefore, according to Section 15 of the Specific Relief Act, the rights and liabilities between the parties with regard to the agreement for sale is limited to the parties to the contract, that is, the plaintiffs and the defendant Nos. 1 to 3. According to Section 19 of the Specific Relief Act, the plaintiffs are not required to seek any relief against the person to whom the defendants Nos. 1 to 3 intend to transfer the suit property. In fact, the plaintiffs have not claimed any relief against the third party save and except the defendant Nos. 1 to 3 with whom the agreement for sale was held.

The contention of the opposite party Nos. 1 & 2 is that by an agreement for sale dated July 7, 2007 in between the opposite party Nos. 1 & 2 and the defendant Nos. 1 to 3 (opposite party Nos. 3 to 5) in respect of the selfsame suit property was held and for that reason these intending purchasers paid the entire consideration money of Rs. 38.50 lakh and the defendant Nos. 1 to 3 handed over the physical possession to them. Though the defendant Nos. 1 to 3 have taken full consideration money for the said land and delivered possession of the suit property in favour of the opposite party Nos. 1 & 2, as contended, yet, the sale in respect of the said property cannot be said to be complete in view of the provisions of Section 54 of Transfer of Property Act because the registration of the sale has not been done. The agreement for sale in favour of the plaintiffs is earlier than that one in favour of the opposite party Nos. 1 & 2.

The Hon''ble Division Bench of this Court has passed the order that, if any sale takes place that will governed by the principles of lis pendens.

In the above facts and circumstances, if the opposite party Nos. 1 & 2 are included in the suit as parties, there will be complication of the suit. Moreover, in order to frustrate the claim of the plaintiffs with regard to the suit property, if they (opposite party Nos. 1 & 2) intend to transfer the same to other third parties and if they come and pray for addition of parties, just as prayed for, by the opposite party Nos. 1 & 2, then the suit will remain pending for ever and the plaintiffs would not be able to get any relief.

Moreover, lis between the parties can well be settled between the parties to the agreement for sale dated May 15, 2007.

Mr. Rai, learned Advocate appearing on behalf of the petitioners, has referred to the decisions of Kasturi Vs. Iyyamperumal and Others, and Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre and Hotels Pvt. Ltd. and Others, and submits that according to these decisions mere likelihood of a third party to secure a right or interest in the suit property in case of dismissal of specific performance suit, does not make such party a necessary or proper party to that suit. Mere expectation as to or likelihood of conveyance of title, however will founded, does not create any interest in the suit property. In case of suit for specific performance of contract the necessary parties thereto are only the parties to the contract or parties claiming under them or a person who had purchased the contracted property from the vendor with or without notice to the contract. Therefore, the sale in favour of the opposite party Nos. 1 & 2 having not yet been completed by the process of registration, they cannot be treated as vendees as yet. I hold that these two decisions are very much applicable in the instant case.

Mr. Rai has also referred to the decision of Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others, which lays down the ratio that the person to be joined must be one whose presence is necessary as a party. Since sale has not been completed as yet in favour of the opposite party Nos. 1 & 2, I hold that they did not acquire any interest in the property in suit, though they may have possession over the same. So, the opposite party Nos. 1 & 2 have no right to be joined as parties in the suit for specific performance of contract filed by the plaintiffs.

Mr. Basudeb Gayen, learned Advocate for the Opposite Parties, has referred to the decisions of C.M.V. Krishnamachari Vs. M.D. Dhanalakshmi Ammal and Others, Bai Devkabai and Others Vs. Shah Shamji Mulji, State Bank of India v. Neeru Plastics Works reported in AIR 1984 P&H 207, Mt. Shankri and Ors. v. Milkha Singh reported in AIR 1941 Lah 407 and thus he submits that the intending purchasers are necessary parties when they have acquired an interest in the property and so they should be added as parties to the suit. I am of the view that since sale has not been completed in their favour as yet, though they may possess the suit property as per their contention, yet the plaintiffs cannot have any relief against them. So, these decisions are not applicable in the instant case. If the opposite party Nos. 1 & 2 seek any relief on the basis of the agreement for sale dated July 7, 2007 of the selfsame property they may file an appropriate suit for suitable reliefs according to their own choice. But, if they are added in the suit, there may be several complications just indicated above.

In view of my above findings, I am of the view that the learned Trial Judge has failed to exercise his jurisdiction in allowing the application under Order 1 Rule 10(2) of the C.P.C. He has committed errors of law in passing the impugned order. The order dated March 27, 2009 is not sustainable.

This application is, therefore, allowed. The impugned order dated March 27, 2009 is hereby set aside. The application for addition of parties filed by the opposite party Nos. 1 & 2 stands dismissed.

Considering the circumstances, there will be no order as to costs.

Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.