TMI Blog2018 (4) TMI 1980X X X X Extracts X X X X X X X X Extracts X X X X ..... ge the scope of the suit. More over the impleadment can be allowed subject to appropriate conditions as set out in the case of Mumbai International Airport Private Ltd. [ 2010 (7) TMI 1159 - SUPREME COURT ]. This is not a case where, prima facie, it can be said that the petitioners do not have a 'semblance of a title' as held in the case of Sumatibai [ 2007 (10) TMI 653 - SUPREME COURT ] so as to refuse impleadment. Section 19 of the Specific Relief Act also cannot come in the way of such impleadment. This is because section 19 of the Act enumerates the persons against whom specific performance of a contract can be enforced, which would mean that section 19 set outs the party/parties who can be arrayed as necessary parry to the suit, inasmuch as, for enforcing such specific performance, the presence of the parties as enumerated in the said section would be necessary. As noticed earlier, no relief need be claimed against a proper party. Thus, if the considerations as set out in Order I, Rule 10(2) of the Code are satisfied, a party can be added as a proper party. The impleadment needs to be granted - The application for impleadment filed by the petitioners is allowed. - C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court has found that a third party who is a stranger to the agreement cannot seek impleadment in a suit for specific performance on the ground that they are co-owners. It has been held that such co-owners, who are not parties to the agreement, are neither necessary nor proper part to determine the controversy in the suit. In that view of the matter the application came to be rejected. 4. I have heard Shri Desai, the learned Senior Counsel for the petitioners and Mr. Agni, the learned Counsel for the respondent No. 1. With the assistance of the learned Counsel for the parties, I have gone through the record. 5. Shri Desai, the learned Senior Counsel for the petitioners has submitted that in Inventory proceedings the petitioner No. 1 has been held to be a co-owner of the suit property to the extent of 1/8th share. It is thus submitted that the petitioner No. 1 and her husband would be necessary parties to the suit. The learned Senior Counsel has taken me through the genealogy starting from the original owner, Manuel Noronha, who died on 9/7/1945 in order to demonstrate that the petitioner No. 1 who is the Great Grand Daughter in-law of Manuel Noronha has a share in the suit property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... frustrate the suit for specific performance. It is submitted that there is no whisper in the written statement filed by the defendants about the existence of the rights of the petitioner, as co owners in the suit property. It is submitted that the presence of the petitioner is not necessary to effectively and to completely adjudicate upon and settle the questions involved in the suit.. 7. I have carefully considered the rival circumstances and the submissions made. 8. In order to decide the question involved in this petition, the legal position as emanating from the decisions cited may be briefly noticed. It is now well settled that plaintiff being dominus litis, is entitled to decide who should be arrayed as defendants in a suit instituted by him. This is however subject to the powers of the Court under Order 1, Rule 10 (2) of the Code where the Court can add or strike off parties. Presently we are concerned with a prayer for addition of party. The Court can direct addition of a party if the Court finds that the presence of such a party may be necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. Whether such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court that there is an apparent conflict between the decisions in the case Kasturi (supra) and the case of Sumatibai (supra). The Supreme Court in para 21 of the judgment found that there is no conflict between the two decisions, in as much as the Court in the two decisions was dealing with different situations. The Supreme Court in the case of Mumbai International Airport Private Ltd. (supra) has set out some illustrations in para 24 of the judgment regarding exercise of discretion to add parties, as under: 24.1) If a plaintiff makes an application for impleading a person as a defendant on the ground that he is a necessary party, the court may implead him having regard to the provisions of Rules 9 and 10(2) of Order I. If the claim against such a person is barred by limitation, it may refuse to add him as a party and even dismiss the suit for non-joinder of a necessary party. 24.2) If the owner of a tenanted property enters into an agreement for sale of such property without physical possession, in a suit for specific performance by the purchaser, the tenant would not be a necessary party. But if the suit for specific performance is filed with an additional prayer for delivery o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the extent of the share will not be the subject matter of the suit for specific performance, and that it will decide in the suit, only the issues relating to specific performance, that is whether the defendant executed the agreement/contract and whether such contract should be specifically enforced. 11. Coming to the facts of the present case, according to the respondent No. 1/plaintiffs, the property is agreed to be sold for a consideration of Rs. 50,00,000/- as per the memorandum of understanding entered into on 3.1.2011 and the subsequent agreement to sell dated 14.6.2011. The trial court has found that the plaintiffs in their wisdom have entered into transaction to purchase the property which was not in the name of the defendants but in the name of the ancestors and therefore according to the learned trial Court looking from one angle it appears that all the parties connected to the family of the defendants have say in their family property . The trial Court has then noticed that the petitioners have produced the order in the inventory proceedings where the petitioner No. 1 (applicant No. 1) is shown as the heir. The trial Court has also found that the final order in the inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e upon and to decide the controversy in the suit namely whether the relief of specific performance should be granted and if granted in which form i.e. whether or not restricting it to a certain share and the like. This is not a case where, unlike the case of Kasturi (supra) (where the impleadment was sought on the basis of an adverse title against the Vendor) would enlarge the scope of the suit. More over the impleadment can be allowed subject to appropriate conditions as set out in the case of Mumbai International Airport Private Ltd. (supra). This is not a case where, prima facie, it can be said that the petitioners do not have a 'semblance of a title' as held in the case of Sumatibai (supra) so as to refuse impleadment. Section 19 of the Specific Relief Act also cannot come in the way of such impleadment. This is because section 19 of the Act enumerates the persons against whom specific performance of a contract can be enforced, which would mean that section 19 set outs the party/parties who can be arrayed as necessary parry to the suit, inasmuch as, for enforcing such specific performance, the presence of the parties as enumerated in the said section would be necessary. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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