"9. Learned counsel for the respondent relied on a three-Judge Bench decision of this Court in Kasturi vs. Iyyamperumal and others - MANU/SC/0319/2005 : (2005) 6 SCC 733. He has submitted that in this case it has been held that in a suit for specific performance of a contract for sale of property a stranger or a third party to the contract cannot be added as defendant in the suit. In our opinion, the aforesaid decision is clearly distinguishable. In our opinion, the aforesaid decision can only be understood to mean that a third party cannot be impleaded in a suit for specific performance if he has no semblance of title in the property in dispute. Obviously, a busybody or interloper with no semblance of title cannot be impleaded in such a suit. That would unnecessarily protract or obstruct the proceedings in the suit. However, the aforesaid decision will have no application where a third party shows some semblance of title or interest in the property in dispute. In the present case, the registered sale deed dated 12.8.1960 by which the property was purchased shows that the shop in dispute was sold in favour of not only Kapoor Chand, but also his sons. Thus prima facie it appears that the purchaser of the property in dispute was not only Kapoor Chand but also his sons. Hence, it cannot be said that the sons of Kapoor Chand have no semblance of title and are mere busybodies or interlopers.
14. In view of the aforesaid decisions we are of the opinion that Kasturi is 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."
12. A reference to relevant portion of judgment in the case of Vidyawati (supra), relied upon by the learned Counsel for respondent nos. 1 [a] to 1 [f], is also necessary. The relevant portion of the said judgment reads as follows:-
"4. This Court in Bal Kishan vs. Om Parkash & Anr. MANU/SC/0528/1986 : AIR 1986 SC 1952 has said thus:
"The sub-rule (2) of Rule of Order 22 authorised the legal representative of a deceased defendant to file an additional written statement or statement of objections raising all pleas which the deceased-defendant had or could have raised except those which were personal to the deceased-defendant or respondent."
5. The same view was expressed in Jagdish Chander Chatterjee & Ors. vs. Sri Kishan & Anr., MANU/SC/0616/1972 : 1973 (1) SCR 850 wherein this Court said:
"The legal representative of the deceased respondent was entitled to make any defence appropriate to his character as legal representative of the deceased respondent. In other words, the heirs and the legal representatives could urge all contentions which the deceased could have urged except only those which were personal to the deceased. Indeed this does not prevent the legal representative from setting up also their own independent title, in which case there could be no objection to the court impleading them not merely as the Lrs. of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the title."
13. Applying the said position of law to the facts of the present case, it becomes evident that the trial Court has not committed an error in passing the impugned order and allowing the application of respondent nos. 1 [a] to 1 [f] by directing them to be added as defendants in their private capacity and granting them an opportunity to file their written statement. It is relevant that in the written statement filed on behalf of the deceased defendant no. 1, it was stated that the suit property was ancestral property, which came to the share of the said defendant and that his children i.e. respondent nos. 1 [a] to 1 [f] had rights therein. Therefore, there was already material before the trial Court indicating that the respondent nos. 1 [a] to 1 [f] did have a fair semblance of right and interest in the suit property. Merely because the said respondents had filed a Pursis before the trial Court adopting the written statement of deceased defendant no. 1 would not have the effect of prohibiting them from seeking their addition as party defendants in their own right in the suit and to file written statement to place on record their defence. It would be inappropriate to restrict respondent nos. 1 [a] to 1 [f] only to the written statement and the stand taken by the deceased defendant no. 1, particularly when they could be said to have interest in the suit property.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Writ Petition No. 848 of 2017
Decided On: 04.12.2018
Vishweshwar Vs. Uttam and Ors.
Hon'ble Judges/Coram:
Manish Pitale, J.
Citation: 2019(4) MHLJ 361
1. The question that arises for consideration in this Writ Petition is, as to whether the Court below was justified in allowing the application of the respondent nos. 1 [a] to 1 [f] under Order I Rule 10 of the Code of Civil Procedure, 1908 (CPC), for being added as defendants in their individual capacity, despite the fact that they were already brought on record as legal representatives of the deceased original defendant no. 1.
2. The petitioner had filed suit for specific performance against the deceased defendant no. 1 i.e. predecessor of respondent nos. 1 [a] to 1[f] in respect of agreement dated 11-11-2009, executed by the said deceased defendant no. 1 in favour of the petitioner, in respect of the suit property. It was stipulated in the said agreement that Sale Deed would be executed on 27-04-2011. As the said defendant failed to execute Sale Deed in terms of the said agreement, the petitioner was constrained to file suit for specific performance.
3. In the said suit, the deceased defendant filed his written statement opposing grant of decree. In the specific pleadings taken in the written statement, the deceased defendant also stated that the suit property was ancestral property that came to his share and that his children (i.e. respondent nos. 1 [a] to 1 [f] herein) also had rights in the suit property. The Court of Civil Judge Senior Division, Pandharkawada i.e. trial Court framed issues and the trial proceeded. The petitioner as plaintiff commenced his evidence on 28-02-2012 and upon examining himself and another witness, his evidence was closed on 07-11-2012. On 15-02-2013, the examination-in-chief of the original deceased defendant took place. Thereafter, on 03-11-2013, the said original defendant no. 1 died.
4. As a consequence, respondent nos. 1 [a] to 1 [f] were brought on record as legal representatives of the said deceased defendant and on 04-07-2014, a pursis was filed on their behalf stating that they were adopting the written statement already filed on record by the deceased defendant and for deciding the suit the said written statement itself be taken into consideration.
5. Thereafter, on 16-11-2016, the respondent nos. 1 [a] to 1 [f] filed application under Order I Rule 10(2) of the CPC, for being added as defendants in their individual capacity. It was claimed by the said respondents that they were not properly guided by their Counsel about their independent rights and title in the suit property and on that basis they had signed the pursis which was placed on record before the trial Court. It was claimed that their father, the original defendant, did not have exclusive right to dispose of the suit property as it was ancestral property and that this was an important aspect, which was required to be brought on record and agitated by the said respondents upon being added as defendants in their individual capacity. The said application was opposed by the petitioner.
6. By the impugned order dated 25-1-2017, the trial Court allowed the said application and held that although the original defendant had taken a plea regarding the suit property being ancestral property, it was necessary that the respondent nos. 1 [a] to 1 [f] were added as defendants and allowed to participate in the suit in their individual capacity to prove their right in the suit property.
7. Mr. M.P. Khajanchi, learned Counsel appearing for the petitioner, submitted that the impugned order passed by the trial Court was wholly unsustainable because, firstly, the respondent nos. 1 [a] to 1 [f] had filed a pursis dated 04-07-2014, before the trial Court categorically stating that they were accepting the written statement filed by the original defendant already on record and that the suit could be decided on the basis of the said written statement and that in this situation they could not be permitted to take a somersault to claim that they were entitled for being added as defendants in their individual capacity. Secondly, it was submitted by the learned Counsel that the original defendant had already taken a specific plea in his written statement about the suit property being ancestral property and that this issue could be agitated by the said respondents by adducing evidence as legal representatives of the original defendant. Thirdly, it was submitted that if the said respondents were permitted to be added as defendants in their individual capacity, the very nature of the suit would be changed from a suit for specific performance to a suit concerning title in the suit property, which was impermissible in law. Fourthly, it was submitted that the law as laid down by the Hon'ble Supreme Court clearly laid down that persons like the said respondents could not be added as respondents in their individual capacity in a suit for specific performance where none of them were party to the agreement. Fifthly, it was pointed out that the said application under Order I Rule 10(2) of the CPC had been filed by the aforesaid respondents more than two years after submitting pursis, accepting the written statement filed by the original defendant as their own written statement. It was submitted that no explanation was given for the delay in preferring the said application and that the said application was clearly filed to protract the proceedings before the trial Court. The learned Counsel appearing for the petitioner relied upon the judgments of this Court in the case of Nilkanth s/o Pandurang Wath and others vs. Amarkanth s/o Pandurang Wath (D) thr Lrs and another, reported at MANU/MH/2461/2016 : 2017(1) ALL Mr. 819, Anilkumar Shrivallabh Sikchi vs. Bharat Petroleum Corporation Ltd. and another, reported at MANU/MH/0123/2017 : 2017(2) AlL Mr. 631 and judgments of the Hon'ble Supreme Court in the case of Kasturi vs. Iyyamperumal and others, reported at MANU/SC/0319/2005 : (2005) 6 SCC 733 and Bharat Karsonds Thakkar vs. Kiran Construction Company and others, reported at MANU/SC/7476/2008 : (2008) 13 SCC 658.
8. On the other hand, Mr. Prasad Dharaskar, learned Counsel appearing for respondent nos. 1 [a] to 1 [f] submitted that the impugned order passed by the trial Court was fully justified, in the facts and circumstances of the case and the position of law as laid down by the Hon'ble Supreme Court. It was submitted that the issues sought to be raised by the petitioner before this Court do not deserve consideration because the petitioners had rights in the suit property, which they could agitate only upon being added as defendants in their individual capacity and not merely as legal representatives of the original defendant. It was submitted that if they were not added as defendants in their individual capacity, they would be restricted to the defences that were available to the original defendant, despite the fact that they were entitled to point out before the Court that they had specific rights in the suit property and the very agreement relied upon by the defendant could not have been executed by the original defendant. The learned Counsel placed reliance on judgments of the Hon'ble Supreme Court in the case of Vidyawati vs. Man Mohan and others, reported at MANU/SC/0318/1995 : 1995 (5) SCC 431 and Sumtibai and others vs. Paras Finance Co. regd. partnership firm Beawer (Raj.) through Mankanwar (Smt.) w/o Parasmal Chordia (dead) and others, reported at MANU/SC/7987/2007 : (2007) 10 SCC 82. According to learned Counsel, in fact, in the judgment in the case of Sumtibai (supra), the judgment of Kasturi (supra) relied upon by the petitioner, was clearly distinguished and the position of law was elucidated in favour of the position canvassed by respondent nos. 1 [a] to 1 [f].
9. In the present case, the respondent nos. 1 [a] to 1 [f] have been already brought on record before the trial Court in their status as legal representatives of deceased defendant no. 1. Under Order XXII Rule 4(2) of the CPC, persons so made parties are entitled to take defence appropriate to their character as legal representatives of the deceased defendant. Upon being added as legal representatives of deceased defendant no. 1, on 04-07-2014, a Pursis was placed on record on behalf of the said respondents stating that the written statement already filed on behalf of deceased defendant no. 1 was being adopted by them and that the suit could be disposed of, taking into consideration, the said written statement. Thereafter, application came to be filed on behalf of the said respondents under Order I Rule 10(2) of the CPC, for being added as new defendants in their own right. Admittedly, this application was filed more than two years after the said Pursis was placed on record. The reasons given in the said application for filing of the aforesaid Pursis was that the Counsel for the said respondents had not guided them properly and that they wanted to assert that the suit property was not self acquired exclusive property of their father i.e. deceased defendant no. 1 and that, being ancestral property, all the said defendants had share in the suit property and that, therefore, they were entitled to be added as defendants in the suit so as to place on record their defence, which was germane to effectively and completely adjudicate upon and settle all questions involved in the suit.
10. The aforesaid application of the said respondents stood allowed by the impugned order, which has been challenged by the petitioner in this Writ Petition. According to the learned Counsel for the petitioner, in a suit for specific performance, respondent nos. 1 [a] to 1 [f] were neither necessary nor proper parties to the suit because in such a suit for specific performance of an agreement, those persons parties to the agreement could only be added as parties and admittedly in the present case only the deceased defendant no. 1 was party to the agreement. It was submitted that the respondent nos. 1 [a] to 1 [f] were entitled only to be brought on record as legal representatives of the deceased respondent no. 1 and under Order XXII Rule 4(2) of the CPC, they were entitled to take a defence appropriate to their character as legal representatives of the deceased defendant no. 1. It was submitted that the Pursis dated 04-07-2014, filed on their behalf was in tune with Order XXII Rule 4(2) of the CPC, because they were entitled only to adopt the said written statement and the stand already taken by the defendant no. 1 in the pending suit. The learned Counsel for the petitioner placed heavy reliance on the judgment of the Hon'ble Supreme Court in the case of Kasturi (supra), wherein twin tests have been laid down for determining whether persons like the respondent nos. 1 [a] to 1 [f] herein are entitled to be added as parties in their own right in a suit for specific performance. It has been held in the said judgment that, firstly, there must be a right to some relief against such party in respect of controversies involved in the proceedings and secondly, no effective decree can be passed in the absence of such party. It has been also laid down that in a suit for specific performance the scope of contract for sale cannot be enlarged and third parties or strangers to a contract cannot be added so as to convert a suit for specific performance into a suit for title or for any other relief. The learned Counsel for the petitioner has also placed reliance on the judgment of Bharat Karsondas Thakkar (supra), wherein the judgment of the Hon'ble Supreme Court in the case of Kasturi (supra) has been referred to and relied upon.
11. In the judgment in the case of Sumtibai versus Paras Finance Co. (supra), the Hon'ble Supreme Court had an occasion to deal with a situation similar to the one that arises in the present case and in the said judgment, the Hon'ble Supreme Court has referred to the judgment in the case of Kasturi (supra) and it has been distinguished and explained. The learned Counsel appearing for the respondent nos. 1 [a] to 1 [f] is justified in relying upon the judgment of the Hon'ble Supreme Court in the case of Sumtibai (supra), to point out that respondent nos. 1 [a] to 1 [f] cannot be denied an opportunity to place their own stand before the trial Court upon being added as defendants in their own right. A perusal of the said judgment of the Hon'ble Supreme Court in the case of Sumtibai (supra), shows that although complete strangers to agreement/contract cannot be added as parties in a suit for specific performance, and a third party cannot be impleaded, if he/she has no semblance of title in the property in dispute. It has been held that a person who has a fair semblance of title or interest in the suit property can certainly approach the Court for being added as a party. In this context, it would be appropriate to refer to the relevant portion of the said judgment of the Hon'ble Supreme Court in the case of Sumtibai (supra).
"9. Learned counsel for the respondent relied on a three-Judge Bench decision of this Court in Kasturi vs. Iyyamperumal and others - MANU/SC/0319/2005 : (2005) 6 SCC 733. He has submitted that in this case it has been held that in a suit for specific performance of a contract for sale of property a stranger or a third party to the contract cannot be added as defendant in the suit. In our opinion, the aforesaid decision is clearly distinguishable. In our opinion, the aforesaid decision can only be understood to mean that a third party cannot be impleaded in a suit for specific performance if he has no semblance of title in the property in dispute. Obviously, a busybody or interloper with no semblance of title cannot be impleaded in such a suit. That would unnecessarily protract or obstruct the proceedings in the suit. However, the aforesaid decision will have no application where a third party shows some semblance of title or interest in the property in dispute. In the present case, the registered sale deed dated 12.8.1960 by which the property was purchased shows that the shop in dispute was sold in favour of not only Kapoor Chand, but also his sons. Thus prima facie it appears that the purchaser of the property in dispute was not only Kapoor Chand but also his sons. Hence, it cannot be said that the sons of Kapoor Chand have no semblance of title and are mere busybodies or interlopers.
14. In view of the aforesaid decisions we are of the opinion that Kasturi is 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."
12. A reference to relevant portion of judgment in the case of Vidyawati (supra), relied upon by the learned Counsel for respondent nos. 1 [a] to 1 [f], is also necessary. The relevant portion of the said judgment reads as follows:-
"4. This Court in Bal Kishan vs. Om Parkash & Anr. MANU/SC/0528/1986 : AIR 1986 SC 1952 has said thus:
"The sub-rule (2) of Rule of Order 22 authorised the legal representative of a deceased defendant to file an additional written statement or statement of objections raising all pleas which the deceased-defendant had or could have raised except those which were personal to the deceased-defendant or respondent."
5. The same view was expressed in Jagdish Chander Chatterjee & Ors. vs. Sri Kishan & Anr., MANU/SC/0616/1972 : 1973 (1) SCR 850 wherein this Court said:
"The legal representative of the deceased respondent was entitled to make any defence appropriate to his character as legal representative of the deceased respondent. In other words, the heirs and the legal representatives could urge all contentions which the deceased could have urged except only those which were personal to the deceased. Indeed this does not prevent the legal representative from setting up also their own independent title, in which case there could be no objection to the court impleading them not merely as the Lrs. of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the title."
13. Applying the said position of law to the facts of the present case, it becomes evident that the trial Court has not committed an error in passing the impugned order and allowing the application of respondent nos. 1 [a] to 1 [f] by directing them to be added as defendants in their private capacity and granting them an opportunity to file their written statement. It is relevant that in the written statement filed on behalf of the deceased defendant no. 1, it was stated that the suit property was ancestral property, which came to the share of the said defendant and that his children i.e. respondent nos. 1 [a] to 1 [f] had rights therein. Therefore, there was already material before the trial Court indicating that the respondent nos. 1 [a] to 1 [f] did have a fair semblance of right and interest in the suit property. Merely because the said respondents had filed a Pursis before the trial Court adopting the written statement of deceased defendant no. 1 would not have the effect of prohibiting them from seeking their addition as party defendants in their own right in the suit and to file written statement to place on record their defence. It would be inappropriate to restrict respondent nos. 1 [a] to 1 [f] only to the written statement and the stand taken by the deceased defendant no. 1, particularly when they could be said to have interest in the suit property.
14. It would obviously have an impact on the capacity of defendant no. 1 to have entered into the agreement dated 11-11-2009 with the petitioner and also the extent of relief to which the petitioner would be entitled in the suit for specific performance. In the light of the law laid down by the Hon'ble Supreme Court, particularly the distinction and explanation of the judgment of the Hon'ble Supreme Court in the case of Kasturi (supra), given in subsequent judgment of the Hon'ble Supreme Court in the case of Sumtibai (supra), it cannot be said that the trial Court committed any error in passing the impugned order. Therefore, the issues noted above raised on behalf of the petitioner are found to be without any substance. The reliance placed by learned Counsel for the petitioner on judgments of this Court in the case of Nilkanth (supra) and Anilkumar (supra) is also mis-placed, because the said judgments concern issues pertaining to the scope of Order XXII Rule 4(2) of the CPC. The scope of Order I Rule 10(2) of the CPC was not examined, particularly in the context of a suit for specific performance, wherein legal representatives of a deceased defendant were seeking impleadment, in order to place on record their own right in the property that was subject matter of the agreement in question. On this basis, the said two judgments of this Court are clearly distinguishable.
15. The only aspect that remains for consideration is the grievance of the petitioner that the application under Order I Rule 10(2) of the CPC was made by the respondent nos. 1 [a] to 1 [f] only to delay the proceedings, particularly when the petitioner had already deposited the entire balance consideration in terms of the said agreement before the trial Court during the pendency of the suit. In this regard appropriate directions can be given. It is also relevant to note that while the petitioner has made a grievance about the delay likely to be caused by the respondent nos. 1 [a] to 1 [f] being added as defendants in their own right in the pending suit, the proceedings in the suit remained stayed as per the interim order passed by this Court on 30-02-2017, at the behest of the petitioner.
16. In the light of the above, the Writ Petition is found to be without any merit and it is dismissed. The impugned order passed by the trial Court is confirmed. The respondent nos. 1 [a] to 1 [f] are directed to file their written statement before the trial Court by 14-12-2018. The trial Court shall dispose of the suit expeditiously and in any case on or before 30-06-2019.
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