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High Court Of Calcutta
Subhro Kamal Mukherjee
KANTA DEVI BERLIA - Appellant
Versus
MOHIT JHUNJHUNWALLA - Respondent
C. O. 23 Of 2006
Decided On : 02/21/2006
CIVIL PROCEDURE CODE - Order 1 Rule 10 (2) - Addition of Party - Suit for specific performance of contract - Stranger to the contract - Not a necessary or proper party - Cannot be added as a defendant - Order allowing addition of party set aside.
Fact of the Case:
In a suit for specific performance of an agreement to sell a property, Vivek Agarwal, who was not a party to the agreement, applied to be added as a defendant, claiming that he had an equitable right to purchase the property based on a separate agreement with the defendant. The plaintiffs and the defendant opposed the application.
Finding of the Court:
The court held that Vivek Agarwal was not a necessary or proper party to the suit and that his presence was not necessary for effective and complete adjudication of the issues involved. The court relied on the settled position in law that a stranger to the contract cannot be added so as to convert a suit of one character into a suit of a different character.
Issues: Whether Vivek Agarwal was a necessary or proper party to the suit for specific performance of contract.
Ratio Decidendi: The court held that a bare reading of the provisions of Order 1 Rule 10 (2) of the Code of Civil Procedure would clearly show that the necessary parties in a suit for specific performance of contract for sale are the parties to the contract or if they are dead, their legal representatives as, also, a person, who has 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.
Final Decision: The court set aside the order of the trial court allowing the addition of Vivek Agarwal as a party to the suit.
( 1 ) THIS is an application under Article 227 of the Constitution of India against Order No. 11 dated December 14, 2005 passed by the learned Civil Judge (Senior Division), Fourth Court at Alipore, District: south 24-Parganas in Title Suit No. 76 of 2005.
( 2 ) BY the order impugned the learned Trial Judge allowed an application for addition of party filed by the opposite party No. 3 in the said suit.
( 3 ) THE plaintiffs, who are opposite party Nos. 1 and 2 in this revisional application, instituted Title Suit No. 76 of 2005 in the Court of the learned civil Judge (Senior Division), Fourth Court at Alipore, District : South 24-Parganas against the petitioner in this revisional application, inter alia, for specific performance of contract, declaration and injunction contending that the present petitioner is the absolute owner of premises No. 29, Sarat Bose road, Police Station : Bhabanipore, Kolkata, and she has entered into an agreement for sale in favour of the said plaintiffs on July 27, 2005 agreeing to convey the said property, free from all encumbrances, attachment, charges and other claims and demands, at and for a consideration of Rs. 1,01,00,000/ -.
( 4 ) BEFORE filing of the said Title Suit No. 76 of 2005, Vivek Agarwal, the opposite party No. 3 in this revisional application, on or about September 21. 2005, instituted Title Suit No. 70 of 2005 in the Court of the learned Civil judge (Senior Division), Fourth Court at Alipore, District South 24-Parganas against the said Kanta Devi Berlia, the petitioner in this revisional application. It is alleged in the said suit that on August 18, 2005 the said Shrimati Kanta devi Berlia had entered into an agreement for sale with the said Vivek Agarwal agreeing to convey the said premises No. 29, Sarat Bose Road at an agreed consideration of Rs. 1 crore. Therefore, Vivek Agarwal in Title Suit No. 70 of 2005, inter alia, prayed for a decree for declaration that the said Vivek Agarwal acquired an equitable right to purchase the suit property in pursuance of the agreement dated August 18, 2005.
( 5 ) THE said Vivek Agarwal moved an application for temporary injunction, inter alia, to restrain the said Shrimati Kanta Devi Berlia and her men and agents from transferring, assigning, selling or in any way encumbering the said premises No. 29, Sarat Bose Road, Kolkata during the subsistence of the contract as evidenced by the instrument dated August 18, 2005. In the said suit Vivek Agarwal moved an application for temporary injunction, but failed to obtain even any ex parte ad interim order of injunction. Upon a contested hearing, the learned Trial Judge by order dated October 6, 2005 rejected such application for temporary injunction.
( 6 ) VIVEK Agarwal on or about October 24, 2005 filed an application under order 1 Rule 10 (2) read with section 151 of the Code of Civil Procedure in connection with Title Suit No. 76 of 2005 seeking his addition as a defendant in the said Title Suit No. 76 of 2005.
( 7 ) HE alleges in the application that he is a person interested in the carriage of the proceeding as he acquires an equitable right to obtain conveyance of the suit property in his favour and a serious complication crops up in the matter of adjudication of the dispute centering the right to have the conveyance of the suit property, which is identical in both the above two suits. He also, alleges in the said application that Title Suit No. 76 of 2005 is instituted in collusion and connivance between the plaintiffs and the defendant of this suit with a sinister motive to defeat the claim of the said Vivek Agarwal as made out in his Title suit No. 70 of 2005.
( 8 ) BOTH the plaintiffs and the defendant in Title Suit No. 76 of 2005 contested the prayer for addition of Vivek Agarwal.
( 9 ) THE learned Trial Judge by the order impugned allows the application for addition of party and directed addition of Vivek Agarwal as the defendant No. 2 in Title Suit No.
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