Case Note & Summary
The petitioners, plaintiffs in Special Civil Suit No. 17 of 2018, sought specific performance of an agreement dated 16.02.2015 for sale of land Gat 49/1 admeasuring 5-22 R situated in Sawantwadi, Sindhudurg. Respondent No. 1, a third party, filed an application under Order I Rule 10 CPC seeking impleadment, claiming to be a consenting party to the agreement. The trial court allowed the application, holding that the third party had a right and interest in the suit property. The petitioners challenged this order in the High Court. The High Court examined the agreement and found that the third party was only a consenting party with no right, interest, or liability under the agreement. The court held that the plaintiff, as dominus litis, cannot be forced to litigate against an unnecessary party. Relying on Kasturi v. Iyyamperumal, the court distinguished that case as involving a third party with a direct interest. The High Court quashed the trial court's order, allowing the petition.
Headnote
A) Civil Procedure - Impleadment of Third Party - Order I Rule 10 CPC - Necessary or Proper Party - In a suit for specific performance of an agreement for sale, a third party who is merely a consenting party to the agreement, without any right, interest, or liability under the agreement, is neither a necessary nor a proper party. The plaintiff as dominus litis cannot be compelled to litigate against an unnecessary party. (Paras 7-14)
B) Specific Performance - Consent Party - Right or Interest - The fact that a third party consented to an agreement for sale does not, by itself, confer any right or interest in the suit property. Such consent does not make the third party a necessary or proper party to the suit for specific performance. (Paras 9-13)
Issue of Consideration
Whether a third party who is a consenting party to an agreement for sale is a necessary or proper party to a suit for specific performance of that agreement.
Final Decision
The High Court allowed the writ petition, quashing the trial court's order dated 25.03.2019 allowing the impleadment application. The third party's application under Order I Rule 10 CPC was dismissed.
Law Points
- Dominus litis
- Necessary party
- Proper party
- Order I Rule 10 CPC
- Specific performance
- Third party impleadment
- Consent party
Case Details
2022 LawText (BOM) (07) 84
Writ Petition 9970 of 2019
Mr. Sandesh Patil i/b. Mr. Kiran Bhagat & Ms Divya Pawar for Petitioners, Mr. Chetan Patil for Respondents
Kalpana Vijaysinh Savant & anr.
Barkha Amir Haldive @ Barkha & ors.
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Nature of Litigation
Civil writ petition challenging an order allowing impleadment of a third party in a suit for specific performance.
Remedy Sought
Petitioners (plaintiffs) sought to quash the trial court's order dated 25.03.2019 allowing the third party's application under Order I Rule 10 CPC.
Filing Reason
The trial court allowed the third party's impleadment application, which the petitioners contended was erroneous as the third party had no right or interest in the suit property.
Previous Decisions
The trial court allowed the application under Order I Rule 10 CPC vide order dated 25.03.2019.
Issues
Whether a third party who is a consenting party to an agreement for sale is a necessary or proper party to a suit for specific performance of that agreement.
Submissions/Arguments
Petitioners argued that the third party had no right or interest in the suit property and was not a necessary or proper party; the plaintiffs as dominus litis cannot be compelled to litigate against an unnecessary party.
Respondent (third party) argued that being a consenting party to the agreement is sufficient to make them a proper party, relying on Kasturi v. Iyyamperumal.
Ratio Decidendi
In a suit for specific performance, a third party who is merely a consenting party to the agreement, without any right, interest, or liability under the agreement, is neither a necessary nor a proper party. The plaintiff as dominus litis has the right to choose the parties and cannot be forced to litigate against an unnecessary party.
Judgment Excerpts
The short question involved in the Petition is whether the Third Party is necessary or proper party to the suit for specific performance of the Agreement.
The learned trial Judge reasons that the Third Party is a consenting party and has right and interest in the suit property.
Mr. Sandesh Patil would submit that the learned trial Judge has committed a serious error in holding that the Third Party has right and interest in the suit property.
In rebuttal, Mr. Chetan Patil, who represents the Third Party would submit, relying on the decision of the Apex Court in Kasturi Vs. Iyyamperumal And Ors., reported in (2005) 6 Supreme Court Cases 733, that the fact that the Third Party is a consenting party to the suit Agreement is sufficient to clothe the Third Party with the status of proper party, if not necessary party.
Procedural History
The petitioners filed Special Civil Suit No. 17 of 2018 for specific performance of an agreement dated 16.02.2015. Respondent No. 1 filed an application under Order I Rule 10 CPC for impleadment. The trial court allowed the application on 25.03.2019. The petitioners challenged this order by filing Writ Petition 9970 of 2019 before the High Court of Bombay.
Acts & Sections
- Code of Civil Procedure, 1908: Order I, Rule 10
