@JUDGMENTTAG-ORDER
S. Sujatha, J.@mdashHeard the learned counsel for the parties.
2. This writ petition is directed against the order passed by the Fast Track Court, Devanahalli, on IA No. 4 in OS No. 271/2009.
3. The facts in brief are that the 1st respondent and his father had entered into a sale agreement on 15.03.2007, with the petitioner agreeing to sell the land in Sy. No. 70/2 measuring 1 acre 10 guntas of Chikkajal Village, Jala Hobli, Bengaluru North Taluk, for a total sale consideration of Rs. 45 Lakhs, out of which the 1st respondent and his father received a sum of Rs. 8,20,000/- as advance. It transpires on 12.05.2007, the petitioner paid further advance of Rs. 25,000/- to the 1st respondent and that on 25.03.2009, the petitioner issued legal notice to respondent Nos. 1 and 2 demanding them to come and execute valid registered sale deed by receiving the balance sale consideration, though served with the legal notice, they had not complied with same. The petitioner was compelled to file the suit in OS No. 271/2009 against respondent Nos. 1 and 2 for the relief of Specific Performance of the contract and other consequential reliefs in respect of the suit schedule lands on the file of Fast Track Court, Devanahalli.
4. During the pendency of the said suit, respondent Nos. 3 to 6 have filed impleading application under Order 1 Rule 10(2) of CPC seeking their impleadment as proposed defendants 3 to 6 in OS No. 271/2009 and the same has been registered as IA No. 4. The petitioner filed his objections to IA No. 4 seeking dismissal of the same on various grounds, besides producing the judgments of this Court reported in ILR 2010 KAR 4249 in the case of Sri. G.V. Satish Reddy and Another Vs. M/s. Shiva Distillers Ltd.
5. The trial Court after considering the arguments advanced by both the parties, allowed the IA, directing the petitioner to amend the cause title and to file amended plaint. As per the directions of the trial Court, the petitioner is said to have carried out the amendment of the plaint and filed the amended plaint. Subsequently, respondent Nos. 3 to 6 have filed their written statement.
6. Being aggrieved by the said order passed by the Court below, the petitioner has preferred this petition.
7. Learned counsel appearing for the petitioner pointed out that the proposed defendant Nos. 3 to 6 have filed IA No. 4 claiming to be legal heirs of late Kashi Nanjundappa, who had acquired the right in the suit schedule property and accordingly, they have set-up their claims, under the pretext of legal heirs, they are claiming to be the necessary parties to the said suit. It is contended that defendant No. 1 and the respondent Nos. 1 and 2 have set-up proposed defendant Nos. 3 to 6 to prolong the litigation and to avoid execution of the sale deed in favour of the petitioner. Moreover, these proposed defendant Nos. 3 to 6 are not proper and necessary parties to the said suit and if their interest is involved, they can pursue their claim by filing a separate suit, but are not entitled to adjudicate their dispute in the suit filed by the petitioner.
Learned counsel for the petitioner placed reliance on the judgment of this Court in the case of Satish Reddy (supra). The trial Court without appreciating the same, allowed the IA which is contrary to the said principles of law.
8. On the contrary, learned counsel for the respondents justifies the impugned order passed by the trial Court. He contends that the proposed defendants 3 to 6 are necessary parties whose interests are involved in the suit schedule property, they being legal heirs of the original propositus i.e. Kashi Nanjundappa, who acquired the suit schedule property. Defendant Nos. 1 and 2 have entered into an agreement of sale in the suit schedule property without the knowledge of defendant Nos. 3 to 6 to deprive their rights, in such circumstances, the trial Court having noticed that the proposed defendant Nos. 3 to 6 are necessary parties has allowed the application which cannot be found fault with. Hence, he seeks for dismissal of the petition.
9. Having heard the rival submissions of both the parties and perusing the records, it is noticed that the petitioner has entered into a sale agreement on 15.03.2007 with respondent No. 1 and 2 to purchase agricultural land measuring 1 acre 10 guntas of Chikkajala village, Jala Hobli, Bengaluru North Taluk, in Sy. No. 70/2, for a total sale consideration of Rs. 45 Lakhs, out of which, the 1st respondent and his father have received a sum of Rs. 8,20,000/- as advance. Further advance of Rs. 25,000/- is said to have been paid by the petitioner as further advance towards sale consideration. Respondent Nos. 1 and 2 having not come forward to execute the sale deed, the petitioner has issued legal notice dated 25.03.2009 demanding for registration of sale deed by receiving balance amount. Despite the said notice, respondents 1 & 2 having not performed their part of the contract, the petitioner has filed suit in OS No. 271/2009. In the given circumstances, during the pendency of the suit, respondent Nos. 3 to 6 claiming to be the legal heirs of late Kashi Nanjundappa, have filed IA No. 4 to implead themselves as necessary parties.
10. Order 1 Rule 10(2) of CPC provides that "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 question involved in the suit be added". Thus, it is necessary to establish for a party seeking impleadment that the said party is necessary or proper party to adjudicate upon and to settle the issue before the Court effectually.
11. In the case of
It is held that "it is well settled that in a suit for specific performance of a contract for sale that the lis between the appellant and the respondent Nos. 2 and 3 shall only be gone into and it is also not open to the Court to decide whether the respondent Nos. 1 and 4 to 11 have acquired any title and possession of the contracted property as that would not be germane for decision in the suit for specific performance of the contract for sale that is to say in a suit for specific performance of the contract for sale the controversy to be decided raised by the appellant against respondent Nos. 2 and 3 can only be adjudicated upon, and in such a lis the Court cannot decide the question of title and possession of the respondent Nos. 1 and 4 to 11 relating to the contracted property".
12. This Court in the case of Satish Reddy cited supra has categorically held that "Order 1 Rule 10(2) covers two types of cases (a) of a party who ought to have been joined but not joined and is a necessary party, and (b) of a party without whose presence the question involved in the suit cannot be completely and effectively decided. The former is called necessary party and the latter is called proper party. Sub-Rule (2) of Order 1 Rule 10 of CPC, therefore, is attracted when the question is covered by one of the above".
13. The Apex Court in Kasturi''s case supra has held as follows:
"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. As discussed above, in the event any decree is passed against the respondent Nos. 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 the respondent Nos. 1 and 4 to 11. It may also be observed that in the event the appellant obtains a decree for specific performance of the contracted property against the respondent Nos. 2 and 3, then the Court shall direct execution of deed of sale in favour of the appellant in the event respondent Nos. 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 the respondent Nos. 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 the respondent Nos. 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 the CPC, if they are available to them or to file an independent suit for declaration of title".
Following the principles laid down in Kasturi''s case, the Co-ordinate bench of this Court has held that it would be open for the person in possession to protect his possession either by way of independent suit or by filing an application as an obstructer, if it is available and he cannot attempt to creep into the suit filed by a purchaser seeking for specific performance of the contract, the rights, if any of the proposed applicants cannot be adjudicated in such a suit. It is further held that based on the two tests as prescribed in Kasturi''s case, the trial Court can pass suitable decree effectively even in the absence of the proposed applicant in as much as the issues which requires to be framed and adjudicated are limited as noted herein above.
14. Similar view is taken by this Court in the case of Smt. Lakshmamma Vs. Sri. P.K. Jayachandra Reddy and others in WP No. 37408/2013, dated 13.04.2015, having considered the judgment of the Hon''ble Supreme Court. In a suit for specific performance of the contract, the dispute being between the vendor and the agreement holder, the question of deciding the title and possession of the parties interested cannot be gone into. Respondent Nos. 3 to 6 being strangers to the contract who are claiming their rights over the suit schedule property as legal heirs of deceased Kashi Nanjundappa are not necessary parties to the present suit. If they have any rights in the suit schedule property, it would be open for them to assert their rights either by way of independent suit or by taking recourse to the relevant provisions of CPC, if available to them to obstruct the execution, in a suit for specific performance of contract, the question involved is very limited, which cannot be enlarged to adjudicate the rights of the parties i.e. respondent Nos. 3 to 6, said to be legal heirs of the deceased Kashi Nanjundappa, changing the character of the suit is not permissible. In such circumstances, the impugned order passed by the Trial Court is not sustainable and accordingly, the same is set-aside. The writ petition is allowed setting-aside the order dated 03.04.2014 on IA No. 4 passed by the trial Court. It is needles to say that respondent Nos. 3 to 6 are at liberty to avail the remedy available under law to assert their rights if any, over the suit schedule properties in an appropriate proceedings.
