Manohar Lal and Others vs Bhupendra Singh and Others

Pratap Krishna Lohra, J—By this writ petition, the petitioners-plaintiffs have invoked supervisory jurisdiction of this Court enshrined under Article 227 of the Constitution of India to assail the impugned order dated 06.02.2013 (Annex.7) passed by the Additional District Judge No. 3, Udaipur (fort short ''the learned court below''). By the impugned order, the learned court below has allowed the application of the third respondent-applicant under Order I Rule 10 CPC for being impleaded as party defendant in a suit for specific performance of contract.

Succinctly stated the facts of the case are that the petitioners filed a civil suit before the learned court below for specific performance of contract and perpetual injunction by arraying the respondents Nos. 1 and 2 as defendants. In the suit, it was inter alia averred that first respondent has agreed to sell urban land measuring 4928 sq.ft. to them by executing agreement to sale dated 21.08.1992. In terms of agreement to sale, the total consideration amount was settled between the parties to the tune of Rs. 51,000/- and out of which Rs. 41,000/- was paid to second respondent as power of attorney of first respondent. The petitioners have made a positive assertion that they were always ready and willing to perform their part of the contract but the respondents have failed to adhere to their commitment and that necessitated filing of the suit.

The suit was contested by the first respondent. In the written statement, the first respondent has completely repudiated the agreement to sale allegedly executed by him in favour of the petitioners. The fact of receiving part payment of the consideration amount is also denied by the first respondent. In the written statement, the first respondent has also denied the fact that he has appointed second respondent as his power of attorney. In totality, the first respondent has herald many insinuations against the petitioners by submitting that entire transaction is a dubious transaction which is designed by the petitioners to grab his property.

During pendency of the suit, the third respondent-applicant laid an application under Order I Rule 10 CPC for being impleaded as party defendant. In his application, the third respondent has averred that the land in question which is subject matter of the suit is owned by him and, therefore, he is not only proper party but a necessary party to the litigation. With a view to substantiate his assertion, the third respondent has also averred in the application that for the same property he has launched a Civil Suit bearing No. 229/1998 for permanent injunction wherein interim injunction has been granted in his favour to protect his possession. The third respondent has also made a specific averment in the application that plaintiffs and the defendants are in collusion at their sole objective is to deprive him from his property in the guise of the suit. Therefore, in that background, the third respondent has claimed for being impleaded as party defendant so that he can render proper assistance to the Court and apprise the Court about the entire facts situation.

The application is contested by the petitioners and a written reply is submitted refuting all the averments contained in the application. It is specifically pleaded in the reply by the petitioners that in a suit for specific performance of contract, question of title cannot be determined and, therefore, the third respondent on the strength of his omnibus allegation cannot be allowed to be impleaded as party defendant.

The learned court below after hearing the rival parties vide its impugned order granted indulgence to the third respondent-applicant and impleaded him as party defendant.

Learned counsel for the petitioner Mr. Sajjan Singh Rajpurohit submits that in a suit for specific performance of contract, issue relating to title is having no significance and, therefore, simply because the third respondent has asserted his right of ownership on the land in question, is neither a necessary party nor proper party to the litigation within the four corners of Order I Rule 3 CPC. Mr. Rajpurohit would contend that in a suit for specific performance of contract, only subsequent purchaser can be impleaded as party defendant and as there is no semblance of right of third respondent, his impleadment as party to the litigation by the learned court below is contrary to the basic tenets of law and the said order cannot be sustained.

In support of his contention, Mr. Rajpurohit has placed reliance on following legal precedents:--

"(1) Anil Kumar Singh Vs. Shivnath Mishra alias Gadasa Guru, (1995) 1 JT 273 : (1994) 4 SCALE 953 : (1995) 3 SCC 147 : (1994) 5 SCR 135 Supp

(2) Smt. Tej Kaur and Others Vs. Jeet Singh and Others, AIR 1998 Raj 201

(3) Kasturi Vs. Iyyamperumal and Others, AIR 2005 SC 2813 : (2005) 2 CTC 676 : (2005) 4 JT 565 : (2005) 141 PLR 326 : (2005) 6 SCC 733 : (2005) 3 SCR 864

(4) Deva Ram and Others Vs. The Addl. District Judge and Others, AIR 2008 Raj 174

(5) 2013(3) CDR 1186 Rajasthan : 2012(3) ILR (Rajasthan): Narendra Kumar & Ors. v. The Addl.District Judge (Fast Track) No. 7 Jaipur City, Jaipur & Ors.

(6) Baluram Vs. P. Chellathangam, (2015) 1 RCR(Civil) 333 ."

In Anil Kumar Singh (supra) Hon''ble Apex Court while construing Order I Rule 3 & 10(2) CPC held that in a suit for specific performance of contract of sale of immoveable property any incumbent who was not party to the contract can be impleaded as party defendant even if he has acquired subsequent interest as co-owner in the property.

This Court in the case of Tej Kaur (supra) has held that in suit of such a nature, co-owner is not a necessary party.

Hon''ble Supreme Court in case of Kasturi (supra) while examining provision under Order I Rule 10(2) CPC deduced following two tests for determining necessary party viz. (1) there must be a right to same relief against such party in respect of controversies involved in the proceedings, or, (2) no effective decree can be passed in his absence.

In Deva Ram & Others (supra), learned Single Judge of this Court has held that in a suit for specific performance of contract, necessary parties are the parties to the contract or their legal representatives or a person purchased the property without notice of the contract.

In Narendra Kumar & Others (supra), this Court has reiterated the same view.

Hon''ble Apex Court in Balu Ram (supra) revisited the scope of Order I Rule 10(2) CPC in a case involving Agreement for Sale by Trustees of Welfare Fund. The Court found that beneficiary of Trust is proper party and rightly impleaded as defendant.

Per contra, Mr. Deelip Kawadia appearing for the third respondent submits that agreement to sale itself is under cloud inasmuch as the first respondent has completely denied execution of such agreement to sale. Mr. Kawadia has urged that even in a suit for specific performance of contract, any party has been able to show some semblance of title or interest, his impleadment is necessary to avoid multiplicity of litigation. Taking serious exception to ground (e) urged by the petitioners that criminal case is pending against the third respondent, Mr. Kawadia submits that no criminal case is pending inasmuch as the criminal proceedings have already been terminated in the form of discharge. Mr. Kawadia further submits that the sale deed executed in favour of the third respondent in the year 1989 has not been challenged by the petitioners and as such the petitioners are precluded from questioning the validity of said sale deed. Mr. Kawadia has also urged that suit for injunction filed by the third respondent for the same property is anterior to the present suit for specific performance of contract. Therefore, the learned courts below has rightly granted indulgence to the third respondent for his impleadment as party defendant. Lastly, Mr. Kawadia would contend that a discretionary order passed by the learned court below is not liable to be interfered with under Article 227 of the Constitution of India. In support of his contention, Mr. Kawadia has placed reliance on the following legal precedents:--

"(1) Sumtibai and Others Vs. Paras Finance Co. Regd. Partnership Firm Beawer (Raj.) Thru Smt. Mankanwar Chordia (Dead) and Others, AIR 2007 SC 3166 : (2007) 11 JT 479 : (2007) 11 SCALE 596 : (2007) 10 SCC 82 : (2007) 11 SCR 543 : (2007) AIRSCW 6125 : (2007) 7 Supreme 201

(2) Moolchand Bothra Vs. Addl. District Judge and Others, (2009) 4 RLW 2906 ."

Hon''ble Supreme Court in Sumtibai & Others (supra) dilated on concept of necessary party in a suit for specific performance of contract by analysing Order I Rule 10 CPC. For considering precedential value of a decision, Court has opined that little difference in facts or additional facts may make a lot of difference. Relying one a decision of earlier Apex Court and some English decisions while quoting words of Lord Denning, Court held,-

"13. As held in Bharat Petroleum Corporation Ltd. and Another Vs. N.R. Vairamani and Another, (2004) 5 CTC 74 : (2004) 8 JT 171 : (2004) 8 SCALE 376 : (2004) 8 SCC 579 , a decision cannot be relied on without disclosing the factual situation. In the same Judgment this Court also observed:--

"Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid''s theorems nor as provisions of the statute and that too taken out of the context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes."

In London Graving Dock Co. Ltd. v. Horton, 1951 AC 737 at p. 761, Lord Mac Dermot observed:

"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."

In Home Office v. Dorset Yacht Co., 1970 (2) All ER 294, Lord Reid said, "Lord Atkin''s speech..... is not to be treated as if it was a statute definition it will require qualification in new circumstances." Megarry, J. in (1971)1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of Russell L. J. as if it were an Act of Parliament" And, in Herrington v. British Railways Board, 1972 (2) WLR 537 Lord Morris said:

"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."

Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

The following words of Lord Denning in the matter of applying precedents have become locus classicus:

"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J.) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."

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"Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it."

In view of the aforesaid decisions we are of the opinion that Kasturi''s case (supra) is clearly distinguishable. In our opinion it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. In our opinion, if C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced."

The Division Bench of this Court in Moolchand Bothra (supra) while examining true purport of Order I Rule 10 CPC in a suit for specific performance of contract held,-

"6. It is undisputed that some reference was made with regard to agreement in between the respondents No. 2 and 3 in paras 6 and 8 of the plaint and an application was filed for addition of party so far as respondent No. 3 was concerned. The Court below and the learned Single Judge of this Court, on appreciation of facts, therefore, were well within their jurisdiction to allow the application impleading respondent No. 3 as party-defendant for doing complete justice and for effective adjudication of the matter. In a case when some semblance of title or interest is shown by the parties, even in a suit for specific performance of a contract, it would be just and proper to allow such application for addition of party to avoid multiplicity of litigation. In this background, the learned Single Judge of this Court had not committed any jurisdictional error in affirming order passed by the Court below allowing application under Order 1 Rule 10 CPC.

In the case of Kasturi (supra), the apex Court observed and held:--

"As discussed herein earlier, 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 herein earlier, 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 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 herein earlier 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 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 contact 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 for 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 contract 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 herein earlier, 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 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."

On appreciation of the facts and the ratio laid down by the apex Court as referred to above, it appears that the plaintiff himself has referred about the agreement entered into in between respondents No. 2 and 3 and in view of such averments made particularly in paras 6 and 8 of the plaint, the respondent No. 3 was a necessary party besides the question that he has semblance of title and interest over the suit land by virtue of agreement as referred to above. The respondent No. 3 no doubt could have also filed a separate suit for specific performance of contract as per agreement entered into in between the parties, but when a suit was already brought subsequently for specific performance of a contract with regard to the same land and there was reference about this very agreement, it was proper for the court below to allow respondent No. 3 to intervene in the suit itself by impleading him as one of the defendants.

The Apex Court in case of Sumitibai (supra) noticing the judgment of the Court in Kasturi (supra) in an identical matter held:--

"In view of the aforesaid decisions we are of the opinion that Kasturi Case is clearly distinguishable. In our opinion it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. In our opinion, if C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced."

The judgment relief upon by Mr. Maloo in the case of Kasturi (supra), in our view, has no application in the peculiar facts and circumstances of the case, inasmuch as, in that case, in the suit for specific performance of a contract, third party could not have been impleaded as he had no semblance of title or interest in the property in question, whereas in the case at hand, third party, who applied for his impleadment as party-defendant, had semblance of title and interest over the property in question by virtue of agreement dated 23.12.1995."

I have heard learned counsel for the parties and perused the material available on record.

After issuance of notices in the writ petition, both the parties have produced documents in support of their respective claim. On behalf of the respondent, sale deed is produced by the respondent. That apart, judgment of competent criminal court dated 17.11.2012 is also filed wherein the third respondent is discharged by the court for the offences under sections 447, 420 and 120B IPC. On the other hand, the petitioners have also produced certain documents throwing light on the lis involved in the matter.

There remains no quarrel that normally the plaintiff is a dominus litis in a suit and it is his right and discretion to implead someone as party defendant in the suit claiming relief against him. However, there is an exception in the said doctrine. Under sub-rule (2) of Rule 10 Order I CPC, a Court in exercise of its discretion can implead an incumbent as party defendant to the litigation for enabling the Court for complete and effectual adjudication of all the questions involved in the suit. Examining the subject matter of suit which is admittedly for specific performance of contract but then the petitioners have also claimed the relief of perpetual injunction. Therefore, on the face of it, when the third respondent has shown his semblance of interest and title on the land in question and further he has proved his possession over the same, it cannot be said that the learned courts below has committed any jurisdictional error in impleading him as party defendant. The third respondent has been able to prove his possession on the strength of suit for perpetual injunction filed by him wherein interim relief has been granted to him and further more, there is a sale deed in his favour of the said property. Legal precedents on which rival parties have placed reliance are scrutinized by me on the touchstone of the facts of the case. True it is that suit is for specific performance of contract and permanent injunction wherein there is a limited scope for impleadment of some one as necessary party, but considering semblance of title or interest of the third respondent and his possession on the land founded on sale deed, I am afraid it is unsafe to subscribe traditional view and departure from it is a better course.

Therefore, in that background, a discretion exercised by the learned court below is not liable to be tinkered with by this Court in exercise of supervisory jurisdiction enshrined under Article 227 of the Constitution of India even if other view is possible. The supervisory jurisdiction of this Court is to be exercised with great care and circumspection as the said jurisdiction is not akin to the appellate jurisdiction. The power of the Court under Article 227 of the Constitution is restricted to interference in cases of grave miscarriage of justice, dereliction of duty or flagrant violation of law by the subordinate court and not to correct an error apparent on the face of record much less of an error of law. Hon''ble Apex Court in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, (2011) 1 CTC 854 : (2010) 7 JT 529 : (2011) 1 RCR(Rent) 1 : (2010) 7 SCALE 428 : (2010) 8 SCC 329 : (2010) 8 SCR 836 : (2010) AIRSCW 6387 after churning out the entire law on the point had formulated certain principles for exercise of supervisory jurisdiction. The Court held,-

"49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court''s jurisdiction under Article 227 of the Constitution may be formulated:

(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.

(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, ''within the bounds of their authority''.

(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) The High Court''s power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India and therefore abridgement by a constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court''s power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court''s jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counter productive and will divest this extraordinary power of its strength and vitality."

The Court has further deprecated the practice of the High Court to entertain the writ petition in cases of purely property dispute impeding disposal of civil and criminal cases, eventually causing serious problem in the administration of justice. By issuing a word of caution, the Court further held,-

"64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions.

We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority.

We may also observe that in some High Courts there is tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to Section 115 of the Civil Procedure Code by Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding High Court''s power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.

As a result of frequent interference by Hon''ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon''ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice within their jurisdiction will adhere to them strictly."

Even in the limited scope of interference under the supervisory jurisdiction of this Court upon examining the matter on merits, in my considered opinion, the learned court below has not committed any error which has resulted in miscarriage of justice so as to upset the impugned order. In substance, the learned court below has taken note of the fact that presence of the third respondent is necessary for complete and effectual adjudication of the questions involved in the matter and, therefore, I am not persuaded to interfere with the impugned order.

Resultantly, the writ petition fails and the same is hereby dismissed.