Narendra Kumar and Others vs Addl. District Judge (Fast Track) No. 7 and Others

Bela M. Trivedi, J.—The challenge in the present petition filed under Article 227 of the Constitution of India is the order dated 29.08.2007 passed by the Addl. District & Sessions Judge (Fast Track) No. 7, Jaipur City, Jaipur (hereinafter referred to as the "trial court") in Civil Suit No. 43 of 2007 (184 of 1991), whereby the trial court has allowed the application of the respondents No. 2 to 18 (original applicants) for being added as the party plaintiffs No. 2 to 18 in the suit filed by the respondent No. 19 (original plaintiff) against the petitioners (original defendants) under order I Rule 10 of CPC and has also allowed the application filed by the respondents No. 2 to 18 under Order VI Rule 17, seeking amendment in the application filed under Order I Rule 10 for impleading them as the party plaintiffs instead of the party defendants in the suit. Briefly stated, the facts of the present case are that the respondent No. 19-plaintiff-society has filed the suit against the petitioners and others-defendants seeking specific performance of an agreement dated 27th May, 1981 allegedly executed by the defendants in favour of the plaintiff-society in respect of the lands bearing Khasra Nos. 133 and 133/246 admeasuring 32 bighas 3 biswas, situated in village Beed Khatipura Tehsil Jaipur. The said suit appears to have been filed by the plaintiff-society in October, 1991, wherein it was alleged inter-alia that the agreement in question was executed by the defendants in favour of the plaintiff-society on 27th May, 1981 and the possession of the lands in question was also handed over to the plaintiff-society. It was also alleged that the plaintiff had paid up the entire sale consideration to the tune of Rs. 9,45,000/- by making payment on different dates and that the time limit for the execution of the sale deed was extended from time to time on 31.8.1984, 27.11.1987 and lastly on 15.07.1988. However, when the Secretary and other members of the society requested the defendants to execute the registered sale deed in favour of the society to on 27.12.1988, the defendants refused to execute the same and hence the suit was filed.

In the said suit, the petitioner-defendants filed their written statement denying the allegations made in the plaint and further contending inter-alia that no such agreement as alleged by the plaintiff was executed nor the plaintiff had paid Rs. 9,45,000/- as alleged in the plaint, and therefore the plaintiff-society was not entitled to any relief in the suit as claimed by it. It was further contended that the proceedings under the Urban Land Ceiling Act were also pending in respect of the said lands in question, and that the land acquisition proceedings were also pending for acquisition of the said lands by the State Government under the Land Acquisition Act, for which some writ petitions were also filed and decided by the High Court.

It further appears that the respondent No. 19-plaintiff had also filed an application for temporary injunction pending the suit and the trial Court vide its order dated 5.10.1999 had directed the parties to maintain status quo as per the report of the Commissioner dated 19.5.1998 during the pendency of the suit.

The application under Order I Rule 10 read with Sec. 151 of CPC came to be filed on 16.72008 by the respondents No. 2 to 18-applicants for impleading them as party defendants in the suit on the ground that the respondent No. 19-plaintiff-society had allotted the plots, which were part of the lands in question, to the applicants and had put the applicants in possession of their respective plots on their making full payment of the price of the said plots to the plaintiff-society, and therefore they were the necessary party to be impleaded as party defendants in the suit. It appears that thereafter the said applicants also submitted another application under Order VI Rule 17 of CPC on 26.7.2008 requesting the Court to permit the amendment in the application filed under Order 1 Rule 10 of CPC and to implead them as party plaintiffs instead of party defendants in the suit. The petitioners-defendant resisted the said application under Order I Rule 10 filed by the applicants, contending inter alia that the applicants were neither necessary nor proper party in the suit. The trial court vide the impugned order dated 29.08.2007 allowed both the applications i.e. the application filed under Order I Rule 10 and the application under Order VI Rule 17 of CPC, permitting the respondents No. 2 to 18-applicants to be impleaded as the party plaintiffs No. 2 to 18 in the suit.

The aggrieved petitioners-defendants have invoked the jurisdiction of this Court of filing the present petition under Article 227 of the Constitution of India. The petition has been resisted by the respondents No. 2 to 18 by filing their reply to the petition, to which the petitioners have filed their rejoinder. The respondent No. 5 has also filed an additional affidavit for bringing subsequent facts'' on record, to which the petitioners have filed their reply.

The pivotal question that falls for consideration before this Court is, whether the respondents No. 2 to 18 could be said to be the necessary or proper party, to be impleaded as party plaintiffs in the suit filed by the respondent No. 19-plaintiff-society against the petitioners-defendants, seeking specific performance of agreement dated 27.05.1991 allegedly executed by the defendants in favour of the plaintiff-society.

It has been vehemently submitted by learned counsel Ms Gayatri Rathore for the petitioners that the respondents No. 2 to 18-applicants has filed the application for impleading them as party defendants in the suit on 16.7.2008, while the suit filed by the respondent No. 19-plaintiff was pending since 1991. According totter, the said application was not only grossly time barred but the applicants being neither necessary nor proper party could not have been impleaded as the party to the suit, either as plaintiffs or the defendants. Placing reliance on the decision of the Apex Court and of this Court, the learned counsel Ms Rathore submitted that in a suit for specific performance of the contract, third party i.e. the persons who are not party to the agreement and are the strangers to the agreement could not be said to be necessary or proper party. She has relied upon the decision of the Apex Court in the case of Kasturi Vs. Iyyamperumal and Others, , and decisions of this court in the case of Prahald Singh & Anr. vs. Additional District and Sessions Judge, Sambharlake, District, Jaipur & Ors., 2011 (2) WLC (Raj) 776 and in the case of Deva Ram and Others Vs. The Addl. District Judge and Others, . Taking the Court to the documents on record, Ms Rathore further submitted that the lands in question were sought to be acquired by the State Government under the Rajasthan Land Acquisition Act for the Prathviraj Nagar Scheme of the Jaipur Development Authority, Jaipur and throughout the proceedings, the petitioners have been shown as the owners of the lands in question. According to her, neither the plaintiff-society nor the applicants had any right, title or interest in the suit lands, however, the trial Court has permitted them to be joined as the party-plaintiff by allowing the application under Order VI Rule 17, without assigning any reason whatsoever. Hence, according to Ms. Rathore, the trial Court having not acted within its parameters and having failed to exercise its discretion judiciously, it is imperative for this Court to exercise its extraordinary jurisdiction and set-aside the impugned order passed by the trial Court.

Per contra, the learned counsel Mr. RD Rastogi for the respondents No. 2 to 18-applicants raising preliminary objection against the maintainability of the petition under Article 227 of the Constitution of India submitted that the supervisory jurisdiction conferred upon the High Court under Article 227 of the Constitution is confined only to see whether the inferior Court has proceeded within its parameters, and not to correct the error apparent on the face of record much less an error of law as held by the Apex Court in the case of Sadhana Lodh Vs. National Insurance Company Ltd. and Another, . Mr. Rastogi relying upon the decision of Apex Court in the case of Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre and Hotels Pvt. Ltd. and Others, , submitted that the impugned order passed by the trial Court permitting the applicants to be joined as party plaintiffs in the suit being discretionary in nature, this Court should not interfere with the said order. Taking the Court to the documents on record as also the additional affidavit filed by one of the respondents submitted that the respondents-applicants were put in possession of their respective plots which were part of lands in question way back in the year 1988 onwards by the respondent No. 19-plaintiff-society and that some of the applicants had also put up their construction on their respective plots, however some of them could not as the proposal for regularization the scheme of Vaibhav Nagar floated by the plaintiff-society was under consideration before the JDA. He also submitted that the Vaibhav Nagar scheme was developed by the respondent No. 19-plaintiff-society, and thereafter said lands were acquired by the State Government under the Land Acquisition Act for the Prathviraj Nagar Scheme of the JDA and that the proposal for regularization of occupation of the said plot is under consideration by the State Government. Under the circumstances, runs of the submissions of Mr. Rastogi, it could not be said that the respondents No. 2 to 18-applicants did not have right or interest in the lands in question. Relying upon various judgments of this Court, the learned counsel Mr. Rastogi has submitted that the applicants being necessary party, the trial Court has rightly impleaded them as party plaintiffs in the suit. Mr. Rastogi also submitted that the applicants were the members of the plaintiff-society and if their rights are not properly protected by the plaintiff-society they would be put to great hardship and therefore also they were required to be impleaded as the party plaintiffs in the suit. Learned Counsel Mr. GP Sharma appearing for respondent No. 19-plaintiff has broadly supported the case of the respondents No. 2 to 18-applicants, however submitted that it was not correct to say that the plaintiff-society was not taking care of the interest of its members.

So far as the scope of interference of the High Court in the orders passed by subordinate courts, while exercising jurisdiction under Article 227 of the Constitution is concerned, the Apex Court in the case of Surya Dev Rai Vs. Ram Chander Rai and Others, , laid down certain guidelines and held in Para-38 inter-alia as under:

Supervisory jurisdiction under Art. 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have of the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

The Apex Court in the case of Sadhana Lodh Vs. National Insurance Company Ltd. and Another, , has observed as under:

The supervisory jurisdiction conferred on the High Courts under Art. 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Art. 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Art. 227 of the Constitution to review or re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision.

In the case of Kishore Kumar Khaitan and Another Vs. Praveen Kumar Singh, , the Apex Court has held as under:

The jurisdiction under Art. 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a Court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Art. 227 of the Constitution. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction.

In view the above, it is clear that though the jurisdiction of the High Court under Art. 227 of the Constitution is very limited, the High Court can interfere with to order passed by the interior court or Tribunal, if the High Court finds that the inferior court or Tribunal has not proceeded within its parameters or has committed jurisdictional error not permitted by law. Hence in the instant case, let us examine whether the trial Court has acted within its parameters while allowing the applications of the respondents No. 2 to 8 permitting them to be impleaded as party plaintiffs No. 2 to 18 in the suit or not.

In the instant case, it is not disputed that the suit has been filed by the respondent No. 19-society against the petitioners-defendants in the year 1991 seeking specific performance of an agreement dated 27.5.1981 and the application seeking impleadment of respondents No. 2 to 18 as party defendants in the suit was filed on 16.7.2008. The said applicants subsequently submitted another application under Order VI Rule 17 of CPC on 26.7.2008 for amending the application filed under Order I Rule 10, seeking their impleadment as the party plaintiffs instead of the party defendants in the suit. At this juncture, it would also be relevant to reproduce the relevant portion of the Order I Rule 10 of CPC which reads as under:

Suit in name of wrong plaintiff

(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties.--The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

From the bare reading of aforesaid provisions, it clearly transpires that the Court is empowered to substitute or add any person as party plaintiff in the suit when the suit has been instituted in the name of wrong person as plaintiff or when it is doubtful whether it has been instituted in the name of right plaintiff or not, and that the Court can strike out the name of any party improperly joined, or add name of any persons who ought to have been joined whether as plaintiff or defendant, or whose presence is found to be necessary in order to effectually and completely adjudicate upon and settle the question involved in the suit.

While dealing with the issue as to who could be said to be the necessary party or proper party of the case, the Apex Court in the case of Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotel Private Limited & Ors., (supra), held as under:

A necessary party'' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a necessary party'' is not impleaded, the suit itself is liable to be dismissed. A proper party'' is a party who, though not a necessary party, is a person whose presence would enable the Court to completely, effectively and adequately adjudicate upon all matter in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the Court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that is person a likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.

The legal position has also been settled by the Apex Court in the case of Kasturi vs. Iyyamperumal & Ors. (supra), as to whether the third party or stranger to the contract could be said to be a necessary or proper party to be joined as the party defendant in the suit for specific performance of the agreement between the proposed purchaser and proposed vendor. It has been held in para 6 to 8 and 15, as under:

In our view, a bare reading of this provision namely, second part of Order 1 Rule 10 sub-rule (2) of the CPC would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead their legal representatives as also a person who had purchased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are--(1) there must be a right to some relief against controversies involved in the proceedings (2) no effective decree can be passed in the absence of such party.

We may look to this problem from another angle. Section 19 of the Specific Relief Act provides relief against parties and persons claiming under them by subsequent title. Except as otherwise provided by chapter II, specific performance of a contract may be enforced against.

(a) either party thereto;

(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;

(c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant;

(d) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;

(e) when the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company;

Provided that the company has accepted the contract and communicated such acceptance to the other party to contract.

We have carefully considered sub-sections (a) to (e) of Sec. 19 of the Act. From a careful examination of the aforesaid provisions of sub-sections (a) to (e) of the Specific Relief Act we are of the view that the persons seeking addition in the suit for specific performance of the contract for sale who were not claiming under the vendor but they were claiming adverse to the title of the vendor do not fall in any of the categories enumerated in sub-section (a) to (e) of Sec. 19 of the Specific Relief Act.

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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 herein earlier, 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.

In view of the aforestated legal position, it is clear that in a suit for specific performance of the contract for sale, the parties to the contract only would be the necessary parties, and that while deciding the application filed by the third party for impleading him as party plaintiff or defendant in the suit under Order I Rule 10 of CPC, the Court is required to consider the questions involved in the suit and not the questions which may arise between the parties to the suit and the third party. The Court cannot allow adjudication of collateral matters, so as to convert the suit for specific performance of contract of sale into a suit for title between the third party and the parties to the suit. It has also been held by the Apex Court in the case of Anil Kumar Singh Vs. Shivnath Mishra alias Gadasa Guru, that since the applicant who sought for his addition in the suit was not a party to the agreement for sale, it could not be said that in his absence, the dispute as to the specific performance could not be decided, and hence he could not be said to be a necessary party.

Now, so far as the fact of the present case are concerned, admittedly none of the applicants was party to the agreement in question allegedly executed in the year 1981 by the petitioners-defendants in favour of the respondent No. 19-plaintiff society, and therefore they are strangers to the contract in question. It is further required to be noted that undisputedly, the applicants are claiming their rights in the suit lands, through the respondent No. 19 plaintiff society on the ground that they had become the members of the plaintiff-society in the year 1988 onwards as they were allotted the plots by the said society on the payment of the price of their respective plots. Even if the said position of the applicants is accepted, then also it emerges that they are the members of the plaintiff-society and the plaintiff society is representing the interest of its members in the suit. In that case also, when the interest of the applicants, is being duly represented and protected by the plaintiff society, it could not be said that their presence would be necessary for effectively adjudicating the questions involved in the suit, requiring the Court to permit them to be impleaded as the party plaintiffs in the suit.

In the entire impugned order, the trial Court appears to have proceeded on the basis of conjectures, surmise and misconceived notion and has applied his personal knowledge as regard the situation prevailing in the society, which is absolutely unwarranted and not permissible. It is needless to say that the trial Court is expected to decide the suit or every application in the suit confining itself to the facts of the case on record and the legal position as emanating from the relevant statute and from the decisions of the High Court and the Supreme Court, and that the trial Court can not decide the application on extraneous consideration. Apart from the fact that the trial Court has not assigned any reason as to why the applicants should be added as the party plaintiff in the suit, the trial Court has acted outside its parameters by not confining itself to the factual aspect of the matter and to the legal position applicable to the fact. When the interest of the applicants was being represented and protected by the plaintiff-society, there was no reason to add them as the party plaintiffs in the suit and that too after so many years of filing of the suit.

Though learned counsel Mr. RD Rastogi for the respondents No. 2 to 18 has sought to rely upon various judgments of the Apex Courts an this Court in support of his submissions that the said respondents-applicants were the necessary party to the suit, the said decisions have no application to facts of the present case in as much as in the said cases, the question was as to whether a person could be said to have semblance of interest or whether such person should be impleaded as the party defendant in the suit or not in order to avoid multiplicity of litigation. In the instant case, even the right of the respondent No. 19-plaintiff society in the lands in question has not been crystallized and hence the members of the society could not be said to have semblance of interest. Even otherwise, there is nothing to show that the plaintiff-society is acting against the interest of its member. If the members have any grievance against the plaintiff-society, they can ventilate the same by filing appropriate proceedings before the appropriate forum, and cannot ventilate the same in the instant suit. This Court therefore is of the opinion that the applicants-members of the society could not be said to the necessary party to be added as the party plaintiffs in the suit, more particularly when none of them was party to the agreement in question, either in the capacity of an office bearer or the member in the year 1981 when the agreement was allegedly executed in favour of the plaintiff society. If there is any internal dispute between the members of the society, such dispute could not be decided in the instant suit which is filed only for the relief of seeking specific performance of the agreement against the petitioners-defendants, and the petitioners-defendants could not be compelled to face the members of the plaintiff society, when the plaintiff society is the party plaintiff in the suit. It has also been rightly submitted by learned counsel Mr. Gayatri Rathore for the petitioners that the suit for specific performance of contract could not be converted into suit for title by impleading the strangers to the contract in the suit, as held by the Apex in the case of Kasturi vs. Iyyamperumal & Ors. (supra) and in the case of Vijay Pratap and others Vs. Sambhu Saran Sinha, .

The respondents No. 2 to 18-applicants appear to have filed the application in the year 2008 in the suit filed by the plaintiff-society in the year 1991, for getting the benefit of the proposal pending before the State Government for regularization of plots of Prathviraj Nagar Scheme of JDA, as transpiring from the reply to the petition filed by the concerned respondents. However, neither this Court nor the trial Court could take into consideration such facts which have no relevance to the issue involved in the suit for specific performance of the contract filed by the plaintiff-society against the petitioners-defendants. In that view of the matter, the impugned order dated 29.08.2007 passed by the trial Court in Civil Suit No. 43 of 2007 (184 of 1991) being perverse and illegal, the same deserves to be set aside and is accordingly set aside. The applications filed by the respondents No. 2 to 18 in the trial Court under Order I Rule 10 and under Order VI Rule 17 of CPC stand rejected. The present petition stand allowed accordingly.