SRI. M. MURALIDHARA v. SRI. H. S. SHIVAKUMAR

SRI. H.S. OMKAR AGED ABOUT 66 YEARS, S/O LATE H.N. SHIVAPA NO.570, MALLIKARJUNANAGAR SAKALESHPURA TLAUK, HASSAN DISTRICT 573 134. …RESPONDENTS (BY SRI. J MANJUNATH REDDY.,ADVOCATE(ABSENT) FOR R1 TO 3., SRI.B.H.RAMAPRASAD., ADVOCATE FOR R5., VIDE ORDER DATED 09.11.2018, NOTICE TO R4 IS HELD SUFFICIENT., R6 AND 7 ARE SERVED., ) - 3 - NC: 2024:KHC:35132 WP No. 53494 of 2017 THIS WP FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.20.9.2017 PASSED BY THE COURT OF VIII ADDITIONAL DISTRICT AND IN SESSIONS R.A.NO.8/2013 AT ANNEXURE-F, AND DISMISS THE IMPLEADING APPLICATION BY ALLOWING THE PRESENT PETITION AND ETC., JUDGE, MYSURU SITTING AT HUNSUR THIS PETITION, COMING ON FOR ORDERS THROUGH VIDEO CONFERENCING / PHYSICAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.I.ARUN ORAL ORDER

Inspite of service of Court notice to respondent Nos.6 and 7, they have remained absent. Notice to respondent Nos.6 and 7 is held sufficient.

Learned counsel for the petitioner is present. Learned counsel for respondent No.5 is present and learned counsel for the other respondents is absent.

The petitioner is the plaintiff in O.S.No.87/2006, which he filed against respondent Nos.1 to 5 herein, wherein he has prayed for specific performance of the contract by way of sale of the suit schedule property in his favour by respondent Nos.1 to 3. The same has been decreed. Aggrieved by the same, respondent Nos.1 to 3 - 4 - NC: 2024:KHC:35132 WP No. 53494 of 2017 have preferred R.A.No.8/2013, which is pending on the file of VIII Additional District and Sessions Judge, Mysuru, sitting at Hunsur. In the said appeal, respondent Nos.6 and 7 have made an application under Order 1 Rule 10(2) read with Section 151 of the CPC to implead themselves as respondents. The same has been allowed by the first appellate Court. Aggrieved by the same, the present writ petition is filed.

Respondent Nos.6 and 7 have made the application under Order 1 Rule 10(2) read with Section 151 of the CPC on the ground that respondent Nos.1 to 3 and respondent Nos.6 and 7 belong to a joint family and that the suit schedule property was a joint family property and thereafter, the same was partitioned and it was given to the share of respondent Nos.1 to 3. However, it was subject to a condition that in case respondent Nos.1 to 3 wanted to sell the property, respondent Nos.6 and 7 had a right to pre-emption. But instead of offering the property to respondent Nos.6 and 7, they have executed an agreement of sale in favour of the petitioner herein and - 5 - NC: 2024:KHC:35132 WP No. 53494 of 2017 because of it, they become just and necessary parties to the suit and impleading application is filed to avoid multiplicity of the proceedings. It is also contended in the application that respondent Nos.6 and 7 have filed O.S.No.208/2013, which is pending on the file of Civil Judge (Junior Division), H.D.Kote, wherein they have prayed for a declaration that the agreement of sale entered into by respondent Nos.1 to 3 in favour of the petitioner regarding the suit schedule property is null and void and also that the decree obtained by the petitioner herein in O.S.No.87/2006 is null and void and not binding on respondent Nos.6 and 7.

The first appellate Court on the ground that respondent Nos.6 and 7 are just and necessary parties and that it is required for them to be impleaded to avoid the multiplicity of the legal proceedings, has allowed the application. The same is challenged in the instant writ petition. - 6 - NC: 2024:KHC:35132 WP No. 53494 of 2017

The case of the petitioner is that respondent Nos.6 and 7 are not just and necessary parties and the first appellate Court erred in allowing the application. Reliance is placed on the judgment of the apex Court in Kasturi Vs Iyyamperumal and others reported in (2005) 6 SCC

7. The question that arises for consideration is whether respondent Nos.6 and 7 are just and necessary parties to the proceedings.

As per the decision of the apex Court in the aforementioned Kasturi case in paragraph Nos.7, 13, 16, 17 and 20 it is held as under:

7. In our view, a bare reading of this provision, namely, second part of Order 1 Rule 10 sub-rule (2) CPC would clearly show 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. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser - 7 - NC: 2024:KHC:35132 WP No. 53494 of 2017 is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear 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.

13. From the aforesaid discussion, it is pellucid that necessary parties are those persons in whose absence no decree can be passed by the court or that there must be a right to some relief against some party in respect of the controversy involved in the proceedings and proper parties are those whose presence before the court would be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person.

16. That apart, from a plain reading of the expression used in sub-rule(2) Order 1 Rule 10 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, - 8 - NC: 2024:KHC:35132 WP No. 53494 of 2017 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 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 Respondents 2 and 3 and Respondents 1 and 4 to 11 on the other. This addition, if allowed, would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit would have to be gone into. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of Respondents 1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made herein earlier, Respondents 1 and 4 to 11 would not, at all, be necessary to be added in the instant suit for specific performance of the contract for sale.

17. It is difficult to conceive that while deciding the question as to who is in possession of the contracted property, it would be open to the court - 9 - NC: 2024:KHC:35132 WP No. 53494 of 2017 to decide the question of possession of a third party or a stranger as first the lis to be decided is the enforceability of the contract entered into between the appellant and Respondent 3 and whether contract was executed by the appellant and Respondents 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 Respondents 2 and 3. Secondly in that case, whoever asserts his independent possession of the contracted property has to be added in the suit, then this process may continue without a final decision of the suit. Apart from that, the intervener must be directly and legally interested in the answers to the controversies involved in the suit for specific performance of the contract for sale. In Amon V.Raphael Tuck and Sons Ltd. It has been held that a person is legally interested in the answers to the controversies only if he can satisfy the court that it may lead to a result that will affect him legally.

20. It was also argued on behalf of Respondents 1 and 4 to 11 that to avoid multiplicity of suits it would be appropriate to join Respondents 1 and 4 to 11 as party-defendants as the question relating to the possession of the suit property would be - 10 - NC: 2024:KHC:35132 WP No. 53494 of 2017 finally and effectively settled. In view of our discussions made hereinabove, this argument also which weighed with the two courts below has no substance. In view of the discussions made herein earlier, the two tests by which a person who is seeking addition in a pending suit for specific performance of the contract for sale must be satisfied. As stated herein earlier, first, there must be a right to the same relief against a party relating to the same subject-matter involved in the proceedings for specific performance of contract for sale, secondly, it would not be possible for the court to pass effective decree or order in the absence of such a party.

If we apply these two tests in the facts and circumstances of the present case, it would be evident that Respondents 1 and 4 to 11 cannot satisfy the above two tests for determining the question whether a stranger/third party is entitled to be added under Order 1 Rule 10 CPC only on the ground that if the decree for specific performance of the contract for sale is passed in absence of Respondents 1 and 4 to 11, their possession over the contracted property can be disturbed or they can be dispossessed from the contracted property in execution of the decree for specific performance of the contract for sale obtained by the appellant against Respondents 2 and 3. Such being the position, in our view, it was not open to the High Court or the trial court to join - 11 - NC: 2024:KHC:35132 WP No. 53494 of 2017 other cause of action in the instant suit for specific performance of the contract for sale, and therefore, the two courts below acted illegally and without jurisdiction in allowing the application for addition of parties in the pending suit for specific performance of contract for sale filed at the instance of Respondents 1 and 4 to 11.

The learned counsel for Respondents 1 and 4 to 11, however, urged that since the two courts below had exercised their jurisdiction in allowing the application for addition of parties, it was not open to this Court to interfere with such order of the High Court as well as of the trial court. We are unable to accept this contention of the learned counsel for Respondents 1 and 4 to 11. As discussed herein earlier, it is open to the Court to interfere with the order if it is held that two courts below had acted without jurisdiction or acted illegally and with material irregularity in exercise of their jurisdiction in the matter of allowing the application for addition of parties filed under Order 1 Rule 10 CPC. The question of jurisdiction of the court to invoke Order 1 Rule 10 CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct interest in the controversy involved in the suit.

Can it be said that Respondents 1 and 4 to 11 had any direct interest in the subject-matter of the instant suit for specific - 12 - NC: 2024:KHC:35132 WP No. 53494 of 2017 performance of the contract for sale? In our view Respondents 1 and 4 to 11 had no direct interest in the suit for specific performance because they are not parties to the contract nor do they claim any interest from the parties to the litigation. One more aspect may be considered in this connection. It is that the jurisdiction of the court to add an applicant shall arise only when the court finds that such applicant is either a necessary party or a proper party. "

Thus, to examine the controversy on hand, two questions, viz., i) Whether respondent Nos.6 and 7 have any right on some reliefs against the petitioner in respect of the controversy involved in the proceedings? ii. Whether an effective decree can be passed in the absence of respondent Nos.6 and 7? are required to be answered. - 13 - NC: 2024:KHC:35132 WP No. 53494 of 2017

Admittedly, the property in question is the exclusive property of respondent Nos.1 to 3. The right of respondent Nos.6 and 7 is that they have a right of pre-emption and respondent Nos.1 to 3 are required to first offer the property to be sold in favour of respondent Nos.6 and 7 first and only upon their refusal, they can sell it to third parties. The burden of proving the same is on respondent Nos.6 and 7. In regard, they have O.S.No.208/2013, which is pending. The present dispute pertains to the right of the petitioner to get a decree of specific performance in respect of the suit schedule property in O.S.No.87/2006 from respondent Nos.1 to 3. No doubt if the petitioner succeeds, his right over the property will be subject to the decision to be rendered in O.S.No.208/2013. But to decide the controversy in O.S.No.87/2006 as per the ruling of the Hon'ble apex Court in Kasturi case, respondent Nos.6 and 7 cannot be considered as just and necessary parties proceedings. - 14 - NC: 2024:KHC:35132 WP No. 53494 of 2017