JPD -15 Ct No.01

01.08.2025 (sss)

Calcutta High Court In The Circuit Bench at Jalpaiguri Appellate Side CO 143 of 2025 Sri Dilip Kumar Agarwal Vs.

Omur Serif and Anr.

Mr. Partha Pratim Roy, Mr. Debasish Mukhopadhyay, Ms. Srishti Sarkar …For the petitioner.

1. The present challenge has been preferred against the rejection of an application of the petitioner for the petitioner to be impleaded as a party to a suit for specific performance of contract filed by the opposite party nos. 1 and 2 against the opposite party nos. 3 to 9.

2. Learned counsel for the petitioner argues that the learned Trial Judge acted without jurisdiction in refusing the amendment application on several counts.

3. In the suit for specific performance, it is submitted, an agreement has been pleaded and sought to be directed to be performed, which covers the entire property, to which the present petitioner claims ownership rights.

4. Hence, it is argued that if the suit for specific performance is decreed and a sale deed is executed in terms of the agreement, as an automatic corollary, the possession of the petitioner would be disturbed. Thus, the petitioner has a cause of action for impleadment in the present suit.

5. Secondly, it is argued that in the suit for specific performance, the defendants therein have filed a counter claim, seeking relief of declaration of title, which would also jeopardize the title of the petitioner. Thus, in view of the broad scope of the counter claim, the petitioner is a necessary party to the suit.

6. On query, it is disclosed that there is already another title suit pending at the behest of the defendants in the suit for specific performance against the petitioner, where the petitioner has also filed a counter claim.

7. Upon a scrutiny of the impugned order, I find no illegality or material irregularity or jurisdictional error in the said order. The learned Trial Judge rightly came to the conclusion that the petitioner is neither a necessary nor a proper party to the suit and in the event the petitioner is impleaded, the scope of the suit would be unnecessarily enlarged.

8. The limited scope of a suit for specific performance of contract is whether the plaintiffs are entitled to have a concluded contract specifically performed against the defendants.

9. The subject matter of suit is entirely the actionable claim based on the contract and no corporeal title or right in respect of any immovable property is the subject matter of such a suit. Unless a person is a party to the contract, the said third party is hit by the doctrine of privity and normally is not entitled or required to be impleaded as a party to the suit. In the present case, the court still might have considered impleadment if the petitioner was a subsequent purchaser of the property whose impleadment in the suit might at least be justified on the ground that, if not a necessary party, he would be a proper party to the suit for the proper implementation of the decree of specific performance, if passed.

10. However, in the present context, the petitioner’s claim is based entirely on title to the property and as such, such claim is entirely beyond the limited scope of a suit for specific performance of contract. Moreover, the counter claim as sought to be pointed out to this court is absolutely vague in nature and there is no prayer portion of the counter claim apart from declaration and injunction in terms of the averments made in the counter claim, which is neither here nor there.

11. In fact, in the counter claim, it is stated that the defendants have suffered loss and damage for which the counter claim was filed, which does not, in any matter, pertain to the corporeal rights to the property which is the subject matter of the agreement.

12. In any event, since there is already a pending suit for title, in which a counter claim seeking declaration of title has been filed by the petitioner, the claim to title as pleaded by the petitioner can very well be canvassed there. Hence,