BASANAGOUDA Vs. VIRUPAXGOUDA AND OTHERS

JUDGEMENT

(1.) HEARD learned counsel for the parties. Rule. The rule is made returnable forthwith and heard by consent of learned counsel for the parties. The writ petition is directed against the order dated 17.11.2012 passed by the Civil Judge, Haveri, on an application bearing I.A. No. VI in O.S. No. 158/2008, which is wrongly typed as IV. By this application under Order 1 Rule 10(3) of the CPC, respondent nos. 2 to 12 sought their impleadment as defendants in the suit filed by the petitioner. The petitioner filed a suit for specific performance of an agreement dated 19.11.2007. Admittedly, the agreement is between the petitioner and respondent no. 1. Respondent no. 1 is a member of the family consisting of respondent nos. 2 to 12. At this stage it would be necessary to mention that there is a suit bearing O.S. No. 206/2009, is pending, to which all the respondents are party. The suit is for partition of about 18 properties, mentioned therein, including the property which is the subject matter of the present suit/agreement to sale bearing N.A. Plot no. 13 in R.S. No. 169/D measuring 2 guntas 75 annas situate at Haveri, Taluk and District Haveri.

(2.) LEARNED counsel for the petitioner, at the outset, invited my attention to the judgment of the Supreme Court in Kasturi Vs. Iyyamperumal and Others, AIR 2005 SC 2813 to contend that respondent nos. 2 to 12 are neither necessary nor proper party to the suit for specific performance and if they are added as party, the suit for specific performance will stand converted into a suit for title which is not permissible in law. Paragraph no. 14 of the judgment of the Supreme Court reads thus: As discussed herein earlier, whether respondent Nos. 1 and 4 to 11 were proper parties or not, the governing principle for deciding the question would be that the presence of respondent Nos. 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 the respondent Nos. 2 and 3 and whether contract was executed by the appellant and the respondent Nos. 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 the respondent Nos. 2 and 3. It is an admitted position that the respondent Nos. 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, the respondent Nos. 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 and Ors. v. Sambhu Saran Sinha and Ors., 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 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. 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 and possession against the appellant or respondent No. 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 the respondent Nos. 1 and 4 to 11 have to be sued for taking possession if they are in possession of the decretal property. (Emphasis supplied) In view of the observations made by the Supreme Court, I am satisfied that respondent nos. 2 to 14 are not at all necessary or proper parties to the suit filed by the petitioner for specific performance of the agreement. It is needless to mention that the decree passed in the suit will not be binding on those respondents and they will have an independent remedy, if any, in respect of the property in dispute. In the circumstances, the order passed by the Court below is set aside. This order, however, shall not be construed to have expressed any opinion on the rights of respondent nos. 2 to 12. However, the remedies, if any, available in law are kept open for them to adopt. Rule is accordingly made absolute. No costs.