In the case of Kasturi vs. Iyyamperumal and others reported in AIR 2005 SC 2813 after considering the provisions of Order 1 Rule 10 of the Code, the Apex Court has held 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. It is held that the contract constitutes rights and also regulates the liabilities of the parties. It is held 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 such party in respect of the controversies involved in the proceedings (2) no effective decree can be passed in the absence of such party. In the said Judgment, the Apex Court has followed the Judgment in the case of Vijay Pratap and others vs. Sambhu Saran Sinha reported in (1996) 10 SCC 53 in which it was held as under :-
14. .............. 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.1
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.1
In my view, the Applicant is neither necessary party nor proper party and his presence is not necessary in order to enable the court to effectually and completely adjudicate all the questions involved in the suit. In my view, the claim of the Applicant that the property in question is HUF property cannot be decided in this suit for specific performance of agreement which is all together for a different reliefs.1
Bombay High Court
Mulchand K.Ranka & Anr vs Hitesh C.Jhaveri & Ors on 9 March, 2012
Bench: R.D. Dhanuka
The Applicants have taken out this Chamber Summons for impleading themselves as party to Suit No.2674 of 2006 claiming to be necessary party. The Plaintiffs have filed the suit for seeking specific performance of the Agreement dated 12th January, 1991 and in the alternative, for damages to the tune of Rs.27 crores together with interest. It is case of the Applicant that Plaintiff No.1 is the
brother of the Applicants and all brothers belong to Undivided Joint Hindu family. It is his case that his father late Kaluchand Hanjarimal Ranka had initially started the business of watch repairing and subsequently he closed down the said business and had ventured into business of construction and development of properties. It is his case that several properties in and around Mumbai came to be developed jointly. It is his case that till date, no partition oral or written by metes and bounds have taken place and all the business are carried out for the joint Hindu family of the Applicants and Plaintiffs and their mother Devubai K.Ranka. It is the case of the Plaintiffs that though Plaintiffs had entered into an agreement with the Defendant, the Applicants who are also entitled to share in it, deals into the business of the Hindu Joint Undivided Family. It is contended by the Applicants that they are proper and necessary party to the suit and as such are required to be joined as parties to the suit. The Applicants also relied upon the affidavit dated 13th April, 2010 filed by the mother of the Applicants and Plaintiff No.1 supporting the Applicants.
2. This Chamber Summon has been vehemently opposed by the Plaintiffs and other Defendants. The Learned Counsel appearing for the Plaintiffs state that the Applicants are neither necessary nor property parties to the suit. The Plaintiffs also denied the allegations of the Applicant that the suit property or any part thereof were part of Joint Hindu Undivided Family. The Plaintiffs denied that the Applicants have any right, title or interest of whatever manner in the suit kvm
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property.
3. The Learned Counsel appearing for Defendant Nos. 1A to 1E and for Defendant No.2 contended that Applicants are attempting to delay the hearing of the suit and the application is false and frivolous. The Defendants also contended that the Applicant was neither necessary nor property required to be impleaded as the Defendants to the suit. The Plaintiffs as well as the Defendants also contended that after filing of this Chamber Summons, the Plaintiffs have already filed separate suit being No. 261 of 2011 against the Plaintiffs herein and the Defendants for various reliefs. According to the Plaintiffs herein and the Defendants, the allegations made in the Chamber Summons that the suit property is HUF property and that the Applicants have share in the same is also subject matter of the said suit No. 261 of 2011 and therefore on this ground also the Chamber Summons is liable to be dismissed.
4. The matter was heard on 14th February, 2012 when the Applicants and Plaintiffs were directed to furnish copy of the said plaint referred by the parties filed by the Applicants in this Court. Since the copy was not furnished by the parties, the matter was placed for directions on 28th February, 2012. On 28th February, 2012, Learned Counsel for the Applicants submitted a copy of the plaint with annexures in Suit No. 261 of 2011. I have considered the copy of the plaint filed in Suit No. 261 of 2011 also. In the said suit bearing No. 261 of 2011, the kvm
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Applicants herein have alleged that under the Agreement dated 12th January, 1991(which is the subject matter of this suit), the Plaintiff No.1 herein was entitled to 35% share in the profit and/or losses of the joint venture. Remaining 65% share was to be held by Defendant Nos. 2 to 33 of the suit. It is to be pointed out here at this stage that some of the Defendants are also parties to this suit. In para 14 of the said suit, the Applicants have alleged that the Applicants had filed Chamber Summons No. 1600 of 2009 hurriedly in Suit No. 2674 of 2006 and sought to be impleaded in the said suit. The said Chamber Summons was taken out on the advice of the then advocate of the Applicants herein and the same is pending.
5. In para 16(b) of the said suit, the Applicants have alleged that the Defendant No.1 (Plaintiff No.1 in the present suit) is bound in law to hold such benefit/advantage/50% share in the said firm and ownership of the property for the benefit of and in trust for the Plaintiffs (i.e. Applicants herein). The Applicants in the said suit has prayed for declaration that Defendant No.1 (Plaintiff No.1 herein) hold 50% share in Defendant No.34 firm and through it 50% of the said property and for the benefit of and on account of the Plaintiffs and that the Plaintiffs are entitled to the same. The Applicants have also prayed for an order and decree that the properties be sold and 3/4th of 50% of the sale proceeds be handed over to the Applicants herein. The said suit is pending in this Court.
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6. In rejoinder, the Learned Counsel appearing for the Applicants contended that in the aforesaid suit, the Plaintiffs herein had taken out Notice of Motion bearing No. 3196 of 2006. The Plaintiffs had made an attempt to withdraw the said Notice of Motion so as to jeopardize the Hindu Undivided Family property. It is contended by the Applicants that it is likely that in collusion with the Defendants, the Plaintiffs may withdraw the suit itself jeopardizing the interest of the Applicants. It would be necessary to refer to the relevant provisions which have been invoked by the Applicants.
7. Order 1 Rule 10 of the Code of Civil Procedure, 1908, which reads as under:-
10. 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 through 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 kvm
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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.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
8. In the case of Kasturi vs. Iyyamperumal and others reported in AIR 2005 SC 2813 after considering the provisions of Order 1 Rule 10 of the Code, the Apex Court has held 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. It is held that the contract constitutes rights and also regulates the liabilities of the parties. It is held 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 such party in respect of the controversies involved in the proceedings (2) no effective decree can be passed in the absence of such party. In the said Judgment, the Apex Court has followed the Judgment in the case of Vijay Pratap and others vs. Sambhu Saran Sinha reported in (1996) 10 SCC 53 in which it was held as under :-
14. .............. 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 kvm
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CHS1600_09
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.
9. At para 15 of the said Judgment delivered by the Apex Court, it is held as under:-
15. 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.
10. In view of the fact that the Applicants have already filed a separate suit being suit No. 261 of 2011 for claiming similar reliefs and has raised similar issues which are sought to be raised in the present Chamber Summons, no relief can be allowed in the present Chamber Summons taken out by the Applicants.
11. In my view, the Applicant is neither necessary party nor proper party and his presence is not necessary in order to enable the court to effectually and completely adjudicate all the questions involved in the suit. In my view, the claim of the Applicant that the property in question is HUF property cannot be decided in this suit for specific performance of agreement which is all together for a different reliefs.
12. In view of the facts, the Applicants have already filed a substantial suit, no reliefs in the present Chamber Summons can be granted. It is for the Applicants to make an application for clubbing of this suit with Suit No. 261 of 2011, if he so desire.
13. In my view, the Chamber Summons is totally misconceived and therefore the same is dismissed with no order as to cost. [R.D. DHANUKA, J.]
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