A third party or a stranger to the contract cannot be added in a suit for specific performance of a contract for sale, as it goes beyond the scope of the suit and converts it into a different character.

JUDGMENT :

A.K. Rath, J.

This petition challenges the order dated 23.12.2014 passed by the learned Civil Judge (Sr. Divn.), Balasore in C.S. No. 595 of 2012, whereby and whereunder the learned trial court allowed the application of the intervenor and impleaded as defendant no.2 in the suit.

2. The petitioner as plaintiff instituted the suit for Specific Performance of Contract impleading the opposite party no.1 as defendant. While the matter stood thus, the opposite party no.2 filed an application under Order 1 Rule 10 C.P.C. for impleadment. It is stated that there was an oral agreement between his father and the defendant on 10.10.1995, pursuant to which the defendant is received a part consideration. After death of his father, the defendant had agreed to execute the sale deed in his favour on 25.1.12. The plaintiff filed objection to the same. Learned trial court came to hold that the intervenor has interest in the subject matter of dispute. Held so, learned trial court allowed the application.

3. Heard Mr. N. Panda-1, learned counsel for the petitioner. None appears on behalf of the opposite parties in spite of valid service of notice.

4. The sole question that hinges for consideration is as to whether in a suit for specific performance of a contract for sale of property a stranger or a third party to the contract can be added as defendant in the suit.

5. The subject matter of dispute is no more res integra. An identical matter came up for consideration before this Court in the case of Atish Chandra Sinha and another vs. Smt. Manjushree Dash and another, 2016(I) ILR-Cutt.-520. This Court held :

“5. The sole question that hinges for consideration is as to whether in a suit for specific performance of a contract for sale of property a stranger or a third party to the contract can be added as defendant in the suit. The subject matter of dispute is no more res integra.

6. In Anil Kumar Singh v. Shivnath Mishra @ Gadasa Guru, (1995) 3 SCC 147, the apex Court held that since the applicant who sought for his addition is not a party to the agreement for sale, it cannot be said that in his absence, the dispute as to specific performance cannot be decided. In paragraph 9 of the report, it is stated that :

“Since the respondent is not a party to the agreement of sale, it cannot be said that without his presence the dispute as to specific performance cannot be determined. Therefore, he is not a necessary party.”

7. In Kasturi v. Iyyamperumal and others, AIR 2005 SC 2813, the apex Court held that in a suit for specific performance of a contract for sale, the plaintiff cannot be forced to add as a party. He does not want to fight unless it is compulsion of the rule of law. He is a dominus litus. 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 parties and whether the plaintiff was/is ready and willing to perform his part of the contract and whether he is entitled to a decree for specific performance of a contract against the defendants. The scope of 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 impermissible in law. 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, the 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.

8. In view of the authoritative pronouncement of the apex Court in the decisions cited supra, the irresistible conclusion is that the intervenor is neither necessary nor proper party to the suit. Learned trial court fell into patent error in allowing the application.”

6. In view of the law laid down by this Court in the case of Atish Chandra Sinha and another (supra),