Ankush Anand Vs. Ram Kishan Singh and Ors. - (High Court of Punjab and Haryana) (11 Sep 2020)

A stranger to agreement cannot be impleaded as a party so as to convert a suit of one character into a suit of different character

MANU/PH/0871/2020

Contract

Petitioner has assailed the order passed by the Additional Civil Judge vide which the application under Order 1 Rule 10 read with Section 151 of Code of Civil Procedure, 1908 (CPC) filed by him was dismissed. Plaintiff/Respondent No. 1 filed a suit for specific performance of the agreements to sell and mandatory injunction against the Defendant/Respondent No. 2. As per pleadings in the plaint, the Plaintiff submitted that, he being Managing Director of AMCIPI Electronics Pvt. Ltd., has a legal right to file the suit.

The Additional Civil Judge vide order dismissed the application on the ground that, the Petitioner is neither a necessary nor property party to be impleaded in a suit for specific performance. The Petitioner has no cause of action in the suit and there is no infringement of his legal right in any manner. Petitioner is not privy to any Article of Association between the Defendant and Plaintiff. Agreement to sell was strictly in relation to the shares of the Defendant to the extent of 33% only. Co-sharer is competent to sell his shares subject to ultimate partition between the parties. The vendee would step into shoes of original co-sharer to the extent of his defined shares. Petitioner is stranger to the agreement between Plaintiff and the Defendant.

Learned counsel for the Petitioner submitted that, 3rd party can be impleaded in the suit where 3rd party shows some semblance of title or interest in the property. Even in a case for specific performance vendee lis pendens can be impleaded as necessary party being assignee by sale. The 3rd party having some semblance of interest in the property is a necessary party in order to avoid multiplicity of litigation and in order to decide the suit in a more effective manner.

The nature of order passed in the instant case by the trial Court cannot be termed as an interlocutory order as the same has decided the right of the petitioner finally by concluding that, he is not necessary and property party in the suit. Even if the order is considered to be interlocutory order, a person cannot be remediless. Where there is a right, there has to be a remedy to redress the grievance in case the Court has not exercised the jurisdiction vested in it. Ubi jus ibi remedium applies to the present set of circumstances. In view of Order 43 Rule 1 of CPC, no alternative remedy is available to the Petitioner. Revision petition under Article 227 of the Constitution of India, 1950 is maintainable in view of facts and circumstances of the case.

Evidently, the Petitioner is not privy to the agreement to sell. Plaintiff is not privy to any memorandum of understanding between the shareholders of VED Sons Engineers Private Limited. It is a case of agreement to sell in respect of 33% shares of the Defendant in which other co-sharers have no right, title or interest in any manner. The specification of shares is however subject to division in a lawful manner.

For impleading a party in a suit for specific performance, two tests are to be satisfied. Firstly, there must be a right to some relief against the plaintiff in respect of suit property. Secondly, that in the absence of the petitioner/proposed defendant, no effective adjudication can be done by the trial Court. In a suit for specific performance, necessary party is that person in whose absence no decree can be passed. Proper party is that person whose presence before the Court would be necessary in order to enable the Court to decide and adjudicate the lis in an effective manner. A person stranger to the agreement to sell cannot be termed as necessary and appropriate party as collateral matters cannot be adjudicated in a suit for specific performance. By allowing such a course, the suit itself will be converted into a complicated suit for title.

The scope of a suit for specific performance cannot permit third party claiming to be joint owner in the property in question. A stranger to the agreement/contract making a claim adverse to the title of the defendant by claiming right of co-sharership in the suit property cannot be termed to be necessary party, nor proper party for adjudication of the case on merits.

A stranger to agreement cannot be impleaded as a party so as to convert a suit of one character into a suit of different character. It is only an assignee by sale in a case of specific performance who can be impleaded as party defendant. Section 19(b) of the Specific Relief Act, 1963 enables the assignee by sale in a suit for specific performance to be impleaded as party.

It is a settled principle of law that, doctrine of lis pendens is a doctrine based on the ground that, it is necessary for the administration of justice that the decision of a Court in a suit should be binding not only on the litigating parties, but on those who derive title pendente lite. This provision does not intend to annul the conveyance or the transfer otherwise to render it subservient to the right of a party to litigation. The impugned order does not suffer with any error of jurisdiction. Petition dismissed.

Tags : LEGAL RIGHT LITIGATION IMPLEADMENT