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Judgment
Petitioner has preferred this writ petition praying for the following reliefs :-
It is therefore most respectfully prayed that the writ petition may kindly be allowed and :-
(a) By an appropriate writ, order or direction the order dated 25.04.2017 (Annexure-8) passed by Learned District Judge, Merta City in Civil
Suit No. 268/2015 may kindly be quashed and set aside..
(b) Any other appropriate order or direction which this Hon''ble Court considers just and proper in the facts and circumstances of this case may
kindly be passed in favour of the petitioner.
Learned counsel for the petitioner states that the petitioner had filed suit for specific performance of contract arising out of the agreement dated
14.11.2008 against the parties to the agreement. Learned counsel for the petitioner further submits that the impugned order is bad as the
application under Order 1 Rule 10 C.P.C. has been allowed for the persons who were not party to the contract. Learned counsel for the petitioner
has relied upon the judgment of the Hon''ble Apex Court passed in the matter of Kasturi. vs. Iyyamperumal & Ors. reported in 2005(2) Civil
Times 67 (SC), the relevant portion whereof, reads as under :-
Keeping the principles as stated above in mind, let us now, on the admitted facts of this case, first consider whether the
respondent Nos.1 and 4 to 11 are necessary parties or not. In our opinion, the respondent Nos.1 and 4 to 11 are not necessary
parties as effective decree could be passed in their absence as they had not purchased the contracted property from the vendor after
the contract was entered into. They were also not necessary parties as they would not be affected by the contract entered into
between the appellant and the respondent Nos.2 and 3. In the case of Anil Kumar Singh Vs. Shivnath Mishra Alias Gadasa Guru,
reported in 1995(3) SCC 147, it has been held that since the applicant who sought for his addition is not a party to the agreement for
sale, it cannot be said that in his absence, the dispute as to specific performance cannot be decided. In this case at paragraph 9, the
Supreme Court while deciding whether a person is a necessary party or not in a suit for specific performance of a contract for sale
made the following observation:
Since the respondent is not a party to the agreement of sale, it cannot be said that without his presence the dispute as to specific
performance cannot be determined. Therefore, he is not a necessary party."" [Emphasis supplied]
As discussed hereinearlier, whether respondent Nos.1 and 4 to 11 were proper parties or not, the governing principle for
deciding the question would be that the presence of respondent Nos.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 the respondent Nos.2 and 3 and whether contract was executed by the appellant and the respondent Nos.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 the respondent Nos.2 and 3. It is an admitted
position that the respondent Nos.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, the respondent Nos.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 &
Ors. Vs. Sambhu Saran Sinha & Ors. reported in 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 the respondent
Nos.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 the respondent Nos.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 the respondent Nos.2 and 3,
then, the Court shall direct execution of deed of sale in favour of the appellant in the event respondent Nos.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 the respondent Nos.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, the respondent Nos.1 and 4 to 11 would be
at liberty either to obstruct execution in order to protect their possession by taking recourse to the relevant provisions of the CPC, if
they are available to them, or to file an independent suit for declaration of title and possession against the appellant or respondent
No.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 the respondent Nos.1 and 4 to 11 have to be sued for taking possession if they are in possession of the decretal property
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 Respondent Nos. 2 & 3 and Respondent Nos. 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
the respondent Nos.1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made hereinearlier, the
respondent Nos.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.
The learned counsel appearing for the respondent Nos.1 and 4 to 11, however, contended that since the respondent Nos. 1 and
4 to 11 claimed to be in possession of the suit property on the basis of their independent title to the same, and as the appellant had
also claimed the relief of possession in the plaint, the issue with regard to possession is common to the parties including respondent
Nos.1 and 4 to 11, therefore, the same can be settled in the present suit itself. Accordingly, it was submitted that the presence of
respondent Nos.1 and 4 to 11 would be necessary for proper adjudication of such dispute. This argument which also weighed with
the two courts below although at the first blush appeared to be of substance but on careful consideration of all the aspects as
indicated hereinearlier, including the scope of the suit, we are of the view that it lacks merit. 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 for sale because the respondent Nos.1 and 4 to 11 are not necessary parties as there was no semblance of right to some
relief against the respondent No.3 to the contract.
In our view, the third party to the agreement for sale without challenging the title of the respondent No.3, even assuming they are in
possession of the contracted property, cannot protect their possession without filing a separate suit for title and possession against the
vendor. It is well settled that in a suit for specific performance of a contract for sale the lis between the appellant and the respondent
Nos.2 and 3 shall only be gone into and it is also not open to the Court to decide whether the respondent Nos.1 and 4 to 11 have
acquired any title and possession of the contracted property as that would not be germane for decision in the suit for specific
performance of the contract for sale, that is to say in a suit for specific performance of the contract for sale the controversy to be
decided raised by the appellant against respondent Nos.2 and 3 can only be adjudicated upon, and in such a lis the Court cannot
decide the question of title and possession of the respondent Nos.1 and 4 to 11 relating to the contracted property.
Thus, the learned counsel for the petitioner has made out a case that anything outside the ambit of contract cannot be decided in a suit
for specific performance of contract.
Learned counsel for the respondents, however, states that for becoming a party, the only point the respondents ought to have proved was that
they were affected by the relief claimed for by the petitioner. Learned counsel for the respondents further states that the agreement regarding the
same land dated 30.7.2008 was executed between the respondents and other parties. Learned counsel for the respondents further pointed out that
the suit for specific performance of agreement dated 30.7.2008 is already pending where the present petitioner is party.
After hearing the learned counsel for the parties and after perusing the material available on record, this Court is of the opinion that two
agreements dated 30.7.2008 and 14.11.2008 were executed for the land in question. Since both the agreements are criss-crossing the disputed
zone of adjudication, therefore, the respondents have rightly been impleaded as party as the agreement dated 30.7.2008 was executed by their
father and, therefore, the respondents claim a right by the agreement in the same land. Learned Court below has rightly held that two agreements
dated 30.7.2008 and 14.11.2008 pertain to the same land and thus, impleadment of the respondents under Order 1 Rule 10 C.P.C. was
necessary.
The judgment cited by learned counsel for the petitioner is not applicable in the present facts as the Hon''ble Apex Court has not dealt with two
agreements regarding the same property in question whereas here the total issue is regarding adjudication of two agreements of the same land.
Consequently, no indulgence is warranted in the impugned order dated 25.4.2017. The present writ petition is, therefore, dismissed.