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Judgment
R. Subbiah, J.—This Civil Revision Petition has been filed by the petitioners/proposed parties as against the order of dismissal, dated
09.11.2009, passed in I.A. No. 1881 of 2009 in O.S. No. 229 of 2008 on the file of the learned Additional District Judge (Fast Track Court No.
IV), Tiruppur, Tiruppur District. The 1st respondent herein is the plaintiff in the suit. The respondents 2 to 3 are the defendants in the suit.
The respondents 2 to 4 are mother, daughter and son respectively. The 3rd petitioner is the wife of fourth respondent. The petitioners 1 and 2
are the sons of 3rd petitioner and 4th respondent.
The brief facts, which are necessary to decide this petition, are as follows:-
3(a) The 1st respondent herein has filed a suit in O.S. No. 229 of 2008 on the file of the Additional District Judge (Fast Track Court No. II),
Tiruppur, for specific performance as against the respondents 2 to 4 herein. In the said suit it is the case of the 1st respondent herein/plaintiff that
on 26.02.2007 he entered into an agreement of sale with the respondents 2 to 4/defendants for purchase of the suit property for valuable
consideration of Rs. 6,50,000/- and he paid a sum of Rs. 6,25,000/- as advance. Later the respondents 2 to 4 have not come forward to execute
the sale deed. Hence, the 1st respondent herein filed a suit for specific performance to direct the respondents 2 to 4/defendants to execute the sale
deed in respect of the suit property in favour of him. In the said suit, the petitioners herein, who are the sons and wife of fourth respondent, have
filed an application in I.A. No. 1881 of 2009 to implead themselves as defendants 4 to 6 stating that the suit property is ancestral in nature and
they are also entitled for a share in the suit property and that the respondents 2 to 4 suppressed the said fact and entered into a sale agreement with
the 1st respondent/plaintiff. Therefore, the petitioners have to be impleaded as defendants 4 to 6 for proper adjudication of the issue involved in the
suit.
3(b) The said application was opposed by the 4th respondent stating that it is incorrect to state that the 3rd petitioner is the wife of the 4th
respondent. In the year 1984 itself, the 4th respondent obtained a decree of divorce as against the 3rd petitioner. The 3rd petitioner has no right
over the suit schedule properties. The petitioners 1 & 2 herein, who are the sons of the 4th respondent, have already filed a civil suit in O.S. No.
170 of 2004 on the file of the District Munsif Court, Udumalpet for a partition and the said suit was dismissed for default on 12.04.2007 itself and
thereafter, they have not taken any steps to restore the said suit. The petitioners 1 & 2 herein have also no right over the suit schedule property.
Hence, the petitioners 1 to 3 are neither necessary party nor a proper party to decide the issue involved in the present suit.
3(c) The trial Court, after considering the evidence available on record and hearing the submissions made on either side, had dismissed the said
application stating that the petitioners herein are neither necessary party nor proper party to decide the issue involved in the suit. Aggrieved over
the same, the petitioners herein/proposed parties have filed the present civil revision petition.
Heard the submissions made by the learned counsel appearing for the respective parties and perused the materials available on record.
From the perusal of the materials available on record, I find that the suit schedule property originally belonged to one Subbiah Pillai. After his
demise, the respondents 2 to 4/defendants, who are the wife, daughter and son respectively of the deceased Subbiah Pillai along with another
daughter of Subbiah Pillai by name Lingammal, who is not a party to the present suit, inherited the property. The said Lingammal filed a suit in O.S.
No. 39 of 1989 on the file of the Sub-Court, Udumalpet, for partition claiming her 1/4th share as against the respondents 2 to 4 in respect of the
suit property, which is a self-earned property of the said late Subbiah Pillai. The said suit was contested by the 4th respondent herein/3rd
defendant therein stating that the plaintiff in the said suit viz., Lingammal is not entitled to any share in the property. But, the Sub-Court, Udumalpet,
on 28.02.1992, passed a preliminary decree allotting 1/4th share each, in the suit property to the said Lingammal/plaintiff therein as well as to the
respondents 2 to 4 herein, who are defendants 1 to 3 in the said suit. Aggrieved over the same, the 4th respondent herein/1st defendant therein
filed an appeal in A.S. No. 815 of 1993 before this Court. The said appeal in A.S. No. 815 of 1993 was also dismissed by this Court and thus,
the preliminary decree passed by the Court below was confirmed. But, in the said preliminary decree, no share was allotted to the petitioners 1 to
3 herein. In view of the said preliminary decree, now it is the submission of the respondents that the petitioners have no right over the suit property.
Moreover, the suit filed by the petitioners 1 & 2 in O.S. No. 170 of 2004 on the file of the District Munsif Court, Udumalpetfiled, as against their
father/4th respondent herein for partition was also dismissed for default on 12.04.2007 and thereafter, the petitioners 1 & 2 herein have not taken
any steps to restore the said suit. While situation stood thus, the respondents 2 to 4 have entered into an agreement for sale with the 1st respondent
to sell their property for a valuable consideration. Since the respondents 2 to 4 had failed to execute the sale deed, the 1st respondent herein has
filed the present suit in O.S. No. 229 of 2008 on the file of the learned Additional District Judge (FTC-IV), Tiruppur.
It is the main contention of the learned counsel for the petitioners/proposed parties that the suit property is an ancestral property and the
petitioners, who are the sons and wife of the 4th respondent, are also having right over the suit property and therefore, they are necessary and
proper parties to the suit and they have to be impleaded as Defendants 4 to 6. From the perusal of the materials available on record, it could be
seen that in the year 1984 itself the 4th respondent herein had obtained a decree for divorce against the 3rd petitioner herein. Further, from the
materials available on record, I find that the respondents 2 to 4 are the legal heirs of one Late Subbiah Pillai. The suit property belonged to the said
Subbiah Pillai. After the demise of the said Subbiah Pillai, one of the daughters of the said Subbiah Pillai by name Lingammal filed a suit for a
partition as against the respondents 2 to 4 herein in O.S. No. 39 of 1989. In the said suit, the petitioners 1 to 3 herein were shown as defendant
Nos. 4 to 6. In the said suit, preliminary decree was passed on 28.02.1992 allotting 1/4th share each to the plaintiff in the said suit as well as
respondents 2 to 4 herein, who are the defendants 1 to 3 in the said suit. But, absolutely no share was allotted to the petitioners herein in the
preliminary decree by the trial Court. The appeal filed by the 4th respondent as against the decree in O.S. No. 39 of 1989 was also dismissed by
this Court and thus, preliminary decree was confirmed. In the mean time, the respondents 2 to 4 have entered into a sale agreement on 26.02.2007
with the first respondent herein. Now, the present suit has been filed by the agreement holder the 1st respondent herein as against the respondents
2 to 4 herein purely based on the sale agreement entered into between them. The petitioners herein are not party to the said agreement for sale. It
is well settled legal principle that in a suit for specific performance, a stranger to the contract cannot be impleaded as a party, since a suit for
specific performance could not be enlarged to convert the same into a suit for title and possession. Moreover, in the instant case, no document was
produced before this Court to show that these petitioners are having right over the suit schedule property. Therefore, they are neither necessary
party nor proper party to decide the suit for specific performance.
In this regard, a reference could be placed in the Judgment of this Court reported in Mrs. Leelavathi Vs. Sri Venkateswara Finance and Others,
. The factual aspect of the said case would show that in that case, the 1st respondent therein as a plaintiff had filed a suit for specific performance
as against the respondents 2 to 13/defendants 2 to 13 in the suit based on a sale agreement entered into between them. The wife of the 2nd
respondent therein viz., Leelavathi filed an impleading application in the suit to implead her as 14th defendant stating that in a suit filed by her in
O.S. No. 286 of 2006 on the file of the First Additional District Munsif, Salem, against the 2nd respondent therein for maintenance, she obtained
an ex parte decree creating a charge over the suit property, for which property a sale agreement was entered into between the 1st respondent and
respondents 2 to 13. But, the trial Court had dismissed the said impleading application. Hence, she filed a civil revision petition before this Court in
C.R.P. (PD) No. 2996/2007. In the Civil Revision Petition, this Court has confirmed the order passed by the Trial Court, observing as follows:-
To decide these issues, as rightly pointed out by the learned Senior Counsel for the first respondent, the revision petitioner is neither a
necessary nor a proper party. The only contention of the revision petition is that, in a suit filed by her in O.S. No. 286 of 2006 for maintenance
against the first defendant, an ex parte decree was passed creating a charge over the suit property and therefore, she is a necessary party in the
present Suit. I do not find any merits in the contention of the revision petitioner as the Suit for Specific Performance has nothing to do with her Suit
and the present Suit''s scope cannot be enlarged by impleading the revision petitioner as a party. If at all the revision petitioner is aggrieved, it is
open to her to agitate her rights in a separate proceedings in a manner known to law and she cannot be impleaded in the Suit filed by the plaintiff
for Specific Performance.
A reading of the dictum laid down in the above Judgment would show that in a suit for specific performance, a third party/stranger to the
contract cannot be added as a party. In the instant case, if the petitioners are added as party to the suit, it would amount to enlarging the suit for
specific performance into a different character. Though the learned counsel for the petitioners relied upon the judgment reported in 2010 (2)
MWN (Civil) 7 [Rathinavel Vs. Balaji] in support of his contention that without the presence of the proper and necessary party, no order can be
effectively made in a suit, considering the facts and circumstances of the present case, I am of the opinion that since the petitioners herein are
neither party to the contract nor having any share in the subject property, to decide the issue involved in the present suit which was filed for a
specific performance of a contract, the presence of the petitioners is not necessary in the suit. Hence, the judgment relied upon by the learned
counsel for the petitioners cannot be made applicable to the facts of this case.
For the foregoing reasons, the civil revision petition fails and the same is hereby dismissed. Consequently, connected Miscellaneous Petition is
closed. There is no order as to costs.