2025 INSC 611 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 5405-5406 OF 2025

(@ Special Leave Petition (C) Nos.12205-12206/2024)

M/S J N REAL ESTATE ...Appellant(s)

VERSUS

SHAILENDRA PRADHAN & ORS. ...Respondent(s)

O R D E R

J.B. PARDIWALA, J. :

1.Leave granted.

2.These appeals arise from the orders passed by the High Court of

Madhya Pradesh at Jabalpur dated 12.12.2023 and 12.06.2023

respectively, in Review Petition No. 717 of 2023 and

Miscellaneous Petition No.5567/2018 respectively, by which the

petition filed by the respondent No.1 herein (original defendant

no. 4) came to be allowed and thereby the order dated 14.03.2018

passed by the Trial Court impleading the present appellant as one

of the defendants in the suit came to be quashed and set aside.

3.For the sake of convenience, the appellant herein shall be

referred to as the original defendant No.8, respondent No.1

herein shall be referred to as the original defendant No.4 and

the respondent No.2 herein as the original plaintiff.

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4. It is the case of the defendant no. 8 that one (Late) Mr.

Indramohan Pradhan executed a will dated 03.02.2001 pertaining to

the suit property in favour of one (Late) Mr. Sameer Ghosh

(original defendant no. 3) who took care of him during his old

age and ailing health. The original defendant no. 3 had applied

for obtaining a probate on the basis of the said Will in the

Court of the 9

th

Additional District Judge, Bhopal, Madhya

Pradesh and the same was allowed vide order dated 28.04.2005. A

probate certificate dated 13.05.2005 with respect to the Will

dated 03.02.2001 was also granted to the original defendant

no.3.

5.Thereafter, it is stated that the original defendant no. 3

entered into an agreement to sell with respect to the same

property in favour of the original defendant no. 8 for a sum of

Rs. 78 Lakh, which was paid in two installments of Rs. 59 Lakh

and Rs. 19 Lakh respectively. It is argued that a sale deed dated

30.05.2009 was also executed to that effect. However, the same

came to be registered only on 29.03.2014. In such circumstances,

the original defendant no. 8 contends that by virtue of the

aforesaid sale deed, the title, interests and rights associated

with the suit property were transferred its favour.

6.On the other hand, it is the case of the original plaintiff that

the testator i.e., Mr. Indramohan Pradhan executed a different

Will dated 07.07.2001 in favour of his two sons i.e., original

defendant nos. 1 and 2, whereby the suit property was bequeathed

to them. Thereafter, the original defendant nos. 1 and 2 entered

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into an agreement to sell dated 05.11.2006 with the original

plaintiff, through which he obtained all rights with respect to

the suit property.

7.Although the original defendant no. 4, who is the brother of the

testator, agrees with the original plaintiff that the sons of the

testator, i.e., original defendant nos. 1 and 2 respectively,

acquired rights with respect to the suit property through the

will dated 07.07.2001, yet it is his case that the sons had

subsequently, entered into an agreement to sell dated 18.05.2007

with respect to the same suit property in his favour instead.

8.Therefore, we have three different parties asserting their

individual title over the suit property.

9.It appears from the materials on record that, on 01.10.2007, the

original plaintiff, namely Adarsh Malhotra, has instituted

Regular Civil Suit No. 360-A/2007 in the Court of 8

th

District

Judge, District-Bhopal for specific performance of the agreement

to sell dated 05.11.2006 in his favour and for permanent

injunction. In the said suit, he has prayed for the following

reliefs:

“(a) It be declared that the Will dated 03.02.2001 is a

fake and the probate order dated 28.4.2005 based

on it and the probate given on 13.5.2005 are void.

(b) That on the basis of the agreement dated

05.11.2006, for specific performance of the

contract in favor of the plaintiff, a decree

should be granted against defendants No. 1 and 2

that they should execute the sale deed in favor of

the plaintiff and if the sale is not executed

within a certain period, the Honorable Court

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should execute the sale deed in favor of the

plaintiff on their behalf.

(c) That a permanent injunction should be granted

against the defendants to the effect that the

defendants should not transfer the land under

dispute in any way or enter into an agreement for

transfer.

(d) That the litigation expenses and other relief

which the Honorable Court deems appropriate and

necessary should be awarded to the plaintiff.

(e) That the sale deed dated 30/05/2009 executed by

defendant number 3 in favor of defendant number 8,

which is recorded in the Sub Registrar's office in

Book No. A-1, Volume 2296, Page 85-93, Serial

3/1920 dated 29/03/2014 (whereas the defendant is

stating the date as 30/05/2009) should be declared

void.”

10.The materials on record also indicate that two separate suits

were filed by the original defendant no. 4 (respondent no. 1

herein) pertaining to the same controversy. They are:- MJC No.

66/2008, seeking cancellation of the probate certificate dated

13.05.2005 issued in favour of the original defendant no. 3 and,

Regular Civil Suit No. 401-A/2010 for specific performance of

agreement to sell dated 18.05.2007 in his favour, declaration and

permanent injunction.

11.In all the aforesaid three suits, the original defendant no. 8

preferred an application under Order 1 Rule 10 of the Civil

Procedure Code, 1908 (for short “the C.P.C.”) seeking to be

impleaded as one of the defendants. However, in the present

appeals, we are only concerned with the impleadment application

made by the original defendant no. 8 in the suit instituted by

the original plaintiff for specific performance and injunction

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i.e., Regular Civil Suit No. 360-A/2007.

12.Having regard to the peculiar facts of the present litigation,

we deem it necessary to reproduce the entire application

preferred by the appellant herein. The same reads thus:

“1. That the applicant is the owner of agricultural

land Khasra No. 54/2, 72/2, 73, 87-88/2/3, 91, total 2.67

hectares i.e. 6.44 acres, situated in Village Ahmed Kalan

Patwari Halka Number-20, R.N.M.2 Development Block- Phanda

Tehsil Huzur District Bhopal.

2.That in this case it is not disputed that the land

originally belonged to Indramohan Pradhan. The land was

given to Sameer Ghosh by Indramohan Pradhan through his

last will/ testament dated 03.02.2001. Sameer Ghosh became

the owner of the land after his death as per the will of

Indramohan.

3. That the Probate certificate dated 13.05.2005 was

issued by the Court-Ninth Additional District Judge,

Bhopal in the name of Sameer Ghosh on the basis of the

last will of Late Indramohan Pradhan. After that, Akshat

Pradhan, Anant Pradhan and Shelendra Pradhan no longer had

the right to take any action regarding the disputed land.

Akshat, Anant Pradhan no longer had any right to enter

into any contract regarding the disputed land. The

plaintiff has filed this suit on 04.10.2007, seeking the

relief of specific performance of the contract dated

05.11.2006. After the issue of probate certificate dated

13.05.2005, if any agreement made by Akshat Pradhan, Anant

Pradhan or anyone else in relation to the disputed land is

void and ineffective.

4.That the said property has been purchased by the

applicant through registered sale deed dated 30-05-2009

and since then the applicant firm is the sole owner of the

said property. The property owned by the applicant has

been purchased by the applicant by paying an amount of Rs

78,00,000/- (Rupees seventy eight lakhs). The applicant

firm is the owner of the land and no other person other

than the applicant has any right on the land.

5. That the applicant had appeared in the court to

contact his advocate in some other case and then he came

to know that the case related to his land was pending in

the Honorable Court. This application is being filed

without any delay as soon as the information is received.

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6.That the applicant has a substantial interest in the

property of 6.44 acres that the applicant has purchased

through a registered sale deed. The actual owner of the

land is the applicant, hence if the proceedings in the

said case are conducted without impleading the applicant

to the case, then the applicant will suffer serious loss.

In such a situation, for the resolution of the case, it

would be necessary in the interest of justice that an

order be passed to implead the applicant in order to give

him an opportunity to protect his interest in the case.

7.That if any action of any kind is taken against the

applicant by Akshat, Anant and Shelendra Pradhan in

connivance, the applicant will suffer serious loss. There

is serious interest in the applicant's case. The applicant

has paid the entire amount and got the sale deed of the

disputed land executed in his name. The applicant is a

bona fide and genuine buyer, information about which is

known to the plaintiff and defendants. In such a

situation, an order should be passed to implead the

applicant, which will be in the interest of justice.

Therefore, it is requested to the Honorable Court that

the applicant has serious interests in this case. The

applicant has paid the entire amount and got the sale deed

of the disputed land executed in its name. The applicant

is a bona fide and genuine buyer, information about which

is known to the plaintiff and defendants. In such a

situation, an order should be passed to implead the

applicant, which will be in the interest of justice.”

13.It is not in dispute that the original plaintiff thought fit

not to oppose the impleadment application preferred by the

original defendant no.8, referred to above.

14.The Trial Court adjudicated the application and allowed the

same vide order dated 14.03.2018. The order allowing the

application seeking impleadment reads thus:

“Application under Order 01 Rule-10 CPC

The gist of the application filed by the applicant M/s

JN Real Estate, through partner Jaimohan is that the

applicant is the owner of agricultural land Khasra No.

54/2, 72/2, 73, 87-88/2/3,91, total 2.67 hectares i.e. 6.44

acres, situated in Village Ahmed Kalan Patwari Halka

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Number-20, R.N.M.2, Development Block- Phanda Tehsil Huzur

District Bhopal. Probate certificate dated 13.05.2005 was

issued by the Court-Ninth Additional District Judge, Bhopal

in the name of Sameer Ghosh on the basis of the last will

of Late Indramohan Pradhan. After that, defendants Akshat

Pradhan, Anant Pradhan and Shailendra Pradhan no longer had

the right to take any action or enter into any contract

with respect to the land under dispute. The plaintiff has

filed a claim in the year 2007, seeking the relief of

specific performance of the contract dated 05.11.2006.

After the probate certificate was issued on 13-05-2005, if

any agreement has been made by the defendants or anyone

else in relation to the land in dispute, then that

agreement is void and ineffective. The said property has

been purchased by the applicant through registered sale

deed dated 30-05-2009 and since then the applicant is the

sole owner of the said property. When the applicant

appeared in another case, he came to know that the case

regarding the said land was pending in the court. The

applicant has substantial interest in the said case.

Therefore, it is necessary to implead the applicant in the

case. Therefore, it has been submitted through this

application that the applicant has serious interests in

this matter and the applicant has paid the entire amount

and got the sale deed of the disputed land executed in his

name. The applicant is a bona fide and genuine buyer,

information about which is known to the plaintiff and

defendants. Therefore, a prayer has been made to pass

orders to implead the applicant in the said case.

While submitting the written reply to the said

application on behalf of the plaintiff, it has been

expressed that on 12-02-2008, the defendant numbers 01 and

02 are trying to sell the land under dispute to the

applicant. An application was filed in the case under

Order-01, Rule-01 CPC to implead the applicant in the case,

a copy of which was sent to the applicant by the court,

which the applicant did not receive. Then on the orders of

the court, service was done through publication on

11.04.2011, but even after that the applicant did not

appear in the court and present his case. The said

application filed by the plaintiff at that time was also

opposed by defendant no. 03, on the basis of which the

applicant was not impleaded as a party as per the court

order dated 06-08-2013. The plaintiff has been ready from

the very beginning to implead the applicant to the suit,

because the sale deed of the disputed land has been

executed by defendant number 03 in favor of the applicant.

Therefore, the plaintiff has no objection in allowing the

application and impleading the applicant in this suit.

On behalf of defendant no. 04, it has been expressed

in detail in written reply to the above application filed

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by the applicant that the applicant is neither a necessary

party to the suit filed by the plaintiff nor can he be made

a party to the suit. This application has been filed on the

basis of the sale deed dated 30-05-2009, which was

registered on 29.03.2014, the same has been executed and

registered by the Honorable High Court in violation of the

writ petition no. 8902/2008 dated 01.08.2008, whereas in

the said case the Honorable High Court had passed orders to

maintain the status quo. The applicant has not come before

the court with clean hands, because he has maliciously got

the sale deed registered in his favor and has not respected

the order of the Honorable High Court and has disobeyed the

said order, on the basis of which, contempt of the order of

the Honorable High Court cannot be permitted by allowing

this application. Apart from this, a prayer has been made

on behalf of defendant no. 04 to dismiss this application

filed by the applicant on various grounds.

Arguments were heard on the applications of both the

parties. The entire suit was reviewed.

Considered. According to the applicant, he had

purchased the disputed property for Rs. 78,00,000/- through

a registered sale deed dated 30.05.2009. In such a

situation, if any decision is passed regarding the

property, its effect will be on the applicant.

In reply, the plaintiff has expressed that he had

already come to know that an attempt was being made to sell

the property to the applicant, then the plaintiff had tried

to implead the applicant and for this, a copy of

application under Order 01, Rule 10 CPC was sent to the

applicant, which was not taken by the applicant even after

being sent repeatedly by the court and then it was also

published in the daily newspaper by the court, still the

applicant did not appear. The applicant did not give any

proper reply to the above reply given by the plaintiff. In

such a situation, the application filed by the applicant

under Order 01, Rule 10 CPC is allowed at a cost of Rs

1000/-.

The name of the applicant should be added to the memo

of parties as defendant number 08. Necessary action should

be taken in this regard.

From the observation of the case, it is also found

that although the Issues were framed twice, there are still

many Issues that need to be framed, in respect of which

pleadings already exist. Therefore, today additional issues

were framed and read to both the parties. Additional Issue

Nos.11 to 15 were framed. Issue No.14 will be resolved as a

primary issue.

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The case is fixed for argument on the primary issue

and for legally incorporating the name of the proposed

party.

Put up the case on 21.03.2018.”

15.Similarly, the Trial Court had also allowed the applications

of the original defendant no. 8 seeking impleadment in MJC No.

66/2008 and Regular Civil Suit No. 401-A/2010 on 12.02.2018 and

07.08.2018, respectively, i.e. in the two other suits wherein the

original defendant no. 4 was the plaintiff. Aggrieved, the

original defendant no. 4 challenged all the three orders of the

Trial Court before the High Court via separate petitions.

16.In so far as the suit filed by the original plaintiff which is

the subject matter of the present appeals is concerned, a

noteworthy aspect is that it is the defendant No.4 and not the

original plaintiff who thought fit to question the legality and

validity of the order passed by the Trial Court permitting the

original defendant no. 8 (appellant herein) to be impleaded as

one of the defendants.

17.The High Court, in exercise of its supervisory jurisdiction

under Article 227 of the Constitution of India, 1950 thought fit

to look into the challenge at the instance of the original

defendant No.4 and set aside the order passed by the Trial Court

impleading the original defendant no. 8 as one of the defendants

in the suit instituted by the original plaintiff i.e., Regular

Civil Suit No. 360-A/2007. As a consequence, the High Court also

allowed the petitions of the original defendant no. 4 as regards

the two other suits wherein he is the plaintiff and set aside the

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orders of the Trial Court.

18.At this stage, we should also reproduce the entire impugned

order passed by the High Court which reads thus:

“This miscellaneous petition has been filed by the

petitioner/ defendant No.4 under Article 227 of the

Constitution of India being aggrieved with the order dated

14.03.2018 passed by learned District Judge Bhopal

(Shailendra Shukla) in RCS No. 360 - A/2007 allowing an

application under Order 1 Rule 10 of the CPC and

permitting the respondent 8 to be added a party to the

lis.

Shri Zargar submits that the suit is filed by the

plaintiff / respondent No.1 for cancellation of Will and

consequential action in favour of the respondent No.4. The

present petitioner has filed another suit RCS No.401-

A/2007 seeking similar reliefs. It is submitted that

application under Order 1 Rule 10 CPC has been allowed on

the strength that there is a registered sale deed in

favour of the newly added respondent executed by one Mr.

Sameer Ghosh who claims to have obtained the suit property

on the strength of the Will of late Indra Mohan Pradhan.

Respondent No.8 has though filed a reply and in

paragraph 9 of the reply has taken a specific plea that he

had entered into an agreement to sale with respondent No.4

Sameer Ghosh and paid a sum of Rs.59 Lacs in November 2007

itself and balance amount was paid on 29.05.2009 and

30.05.2009 and thereafter a registered sale deed was

executed by the present respondent No.4 in favour of the

present respondent No.8 on 30.05.2009. But the fact of the

matter is that the document Annexure R-5 relied upon by

Shri Pancholi in support of his contention, is not a

registered sale deed. Shri Pancholi submitted that the

agreement was executed in the year 2007 and registered

sale deed was executed subsequently in the year 2014 but

this fact is not made out from the documents available on

record. Shri Pancholi has relied on a receipt affixed from

the office of the Sub-Registrar dated 18.9.2014 but that

receipt does not contain any detail in regard to having

any relation of sale deed enclosed as Annexure R-5. In

view of such fact that there is no iota of evidence in

favour of the respondent No.8 that he had purchased the

suit property through a valid document and he is in

possession of the same on the strength of legal

transaction, I am of the opinion that learned District

Judge, Bhopal erred in not appreciating the fact in

correct perspective and has passed the impugned order

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without analysing the fact situation and arbitrary and

illegal manner. Such order cannot be given stamp of

approval in supervisory jurisdiction of this Court.

At this stage, Shri Pancholi has vehemently argued

that there is an agreement for sale but he has not brought

so called agreement to sell on record. He has relied on

the decision in the case of Tilak Sahakari Grah Nirman

Maryadit v. Aqeel Ahmed 2020 (1) MPLJ 332 but fact of the

matter remains that the respondent No.8 has not bothered

to place on record a copy of the said agreement to sell.

Therefore, merely on the basis of oral submission of the

counsel no indulgence can be shown and, therefore, in the

absence of agreement to sell on record, it cannot be said

or presumed that any agreement to sell exists in favour of

the respondent No.8.

Taking all these facts into consideration, the

petition is allowed and the impugned order is set aside.

This order will also cover disposal of similar controversy

raised in MP No.5572 of 2018 and MP No.2166 of 2018.”

19.Thereafter, three Review Petitions had been filed by the

original defendant no. 8. The High Court by a common impugned

order dated 12.12.2023 rejected all the Review Petitions. The

order reads thus:

“These review petitions have been filed being

aggrieved by a party who was defendant No.8 of MP No.5567

of 2018 on the ground that this Court committed an error on

face of record in setting aside the orders of the trial

Court entertaining an application under Order I Rule 10 of

the CPC. It is submitted that he is a purchaser lis pendens

and therefore, he is a necessary party to the lis.

Shri Zargar, in his tum, submits that the High Court

vide order dated 01.08.2008 passed in WP No.8902/2008,

where transferor Sameer Ghosh was a party, at the instance

of one of the parties – Shailendra Pradhan directed the

parties to maintain the status quo. Therefore, position of

the transferee steps into shoes of the transferor and that

he has to follow the rights and liabilities of the

transferee. Reliance is placed on the judgment of the

Hon'ble the Supreme Court in the case of Sunil Gupta v.

Kiran Girhotra and Others, (2007) 8 SCC 506 wherein it is

held that in probate proceedings, in transfer of property

concerned during probate proceedings, impleadment of said

transferee to probate proceeding, is not necessary.

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Shri Pancholi vehemently submits that in WP

No.5567/2018, in fact, the petitioner Shaielndra Pradhan is

a defendant. The suit is filed by another person seeking

specific performance of agreement. Therefore, the present

applicant is a necessary party.

After hearing learned counsel for the parties and

going through record, as far as MP No. 2166/2018 is

concerned it is filed by one Shailendra Pradhan who had

filed an application under Section 263 of the Indian

Succession Act which was registered as MJC 66/2008 seeking

a relief for cancellation of probate issued in favour of

the defendant No.1 Sameer Ghosh. Thus, submission made by

Shri Pancholi that this case has nothing to do with probate

and thus ratio of law laid down by Supreme Court in the

case of Sunil Gupta (supra) has no application, is not made

out. Since the suit is in regard to cancellation of probate

as was issued by the trial Court in favour of Sameer Ghoash

and admittedly the review petitioner claims that he

purchased the property in question from said Shri Sameer

Ghosh, therefore, his rights and liabilities will be

governed by rights and liabilities of Sameer Gosh, as may

be decided from time to time. Thus, ratio laid down in case

of Sunil Gupta (supra) has application in full force and,

therefore, the submission made by Shri Pancholi is not

acceptable. Thus, review petition No.718/2023 deserves to

and is dismissed.

As far as other two review petitions, namely, RP

No.7l4/2023 and RP No.717/2023 are concerned, in view of

the aforesaid discussion, and as there is no material

brought on record to show error apparent on the face of the

record, no indulgence can be shown. Therefore, these review

petitions also fail and are dismissed.”

20.Being dissatisfied with both the order dated 12.06.2023 in

Miscellaneous Petition No. 5567/2018 and the common order in

review dated 12.12.2023 respectively, passed by the High Court,

which set aside the order impleading him in Regular Civil Suit

No. 360-A/2007, the original defendant no. 8 is here before this

Court with the present appeals.

21.We heard Mr. C.U. Singh, the learned Senior Counsel appearing

for the original defendant no. 8, Mr. Navin Pahwa, the learned

12

Senior Counsel appearing for the original defendant No.4 and Mr.

Atharva Gaur, the learned counsel appearing for the original

plaintiff.

22.This Court in Mumbai International Airport (P) Ltd. v. Regency

Convention Centre & Hotels (P) Ltd. , reported in (2010) 7 SCC

417, explained the scope of Order I Rule 10(2) of the CPC. In the

unique facts which existed therein, there was a likelihood that

the appellant would secure a right/interest in the suit property

if the suit for specific performance instituted by the respondent

against the Airport Authority of India was dismissed. It was

held, that in such a factual circumstance and such being the

right asserted by the appellant, it cannot be made a party to the

suit for specific performance. While holding so, it was observed

that although the general rule is that the plaintiff, being

dominus litis, may choose the persons against whom he wishes to

litigate and seek relief, yet this rule of impleadment would be

subject to the provisions of Order I Rule 10(2) wherein courts

are vested with the discretion to strike out or add parties to a

suit depending on whether their impleadment is deemed necessary

or proper. It was held that, even in suits for specific

performance, a court may, at any stage of the proceedings,

implead a person who is found to be a necessary party or proper

party.

23.In Mumbai International Airport (supra), this Court explained

the import of the expressions “necessary party” and “proper

party” as thus:

13

“14. The said provision makes it clear that a court

may, at any stage of the proceedings (including

suits for specific performance), either upon or

even without any application, and on such terms as

may appear to it to be just, direct that any of the

following persons may be added as a party: (a) any

person who ought to have been joined as plaintiff

or defendant, but not added; or (b) any person

whose presence before the court may be necessary in

order to enable the court to effectively and

completely adjudicate upon and settle the questions

involved in the suit. In short, the court is given

the discretion to add as a party, any person who is

found to be a necessary party or proper party.

15. A “necessary party” is a person who ought to

have been joined as a party and in whose absence no

effective decree could be passed at all by the

court. If a “necessary party” is not impleaded, the

suit itself is liable to be dismissed. A “proper

party” is a party who, though not a necessary

party, is a person whose presence would enable the

court to completely, effectively and adequately

adjudicate upon all matters in dispute in the suit,

though he need not be a person in favour of or

against whom the decree is to be made. If a person

is not found to be a proper or necessary party, the

court has no jurisdiction to implead him, against

the wishes of the plaintiff . The fact that a person

is likely to secure a right/interest in a suit

property, after the suit is decided against the

plaintiff, will not make such person a necessary

party or a proper party to the suit for specific

performance.”

(Emphasis supplied)

24.It is limpid in the aforesaid observation that if a party is

found to either a necessary or proper party, the court would

have the jurisdiction to implead him, even against the wishes

of the plaintiff concerned. In Mumbai International Airport

(supra) another pertinent question that arose was whether there

existed any conflict between the three-judge bench decision of

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this Court in Kasturi v. Iyyamperumal , reported in (2005) 6 SCC

733 and the decision of a two-judge bench in Sumtibai v. Paras

Finance Co. Regd. Partnership Firm Beawer (Raj.) , reported in

(2007) 10 SCC 82.

25.In Kasturi (supra) , the respondent nos. 1 and 4 to 11

respectively therein, based their claim to be added as party

defendants on an independent title and possession of the

contracted property. In such a backdrop, while rejecting the

applications for impleadment, this Court had expounded the

scope of Order I Rule 10(2) CPC and laid down certain tests for

determining whether a person is a ‘necessary party’ for the

purpose of impleadment in a suit for specific performance as

follows:

(i)First, that a bare reading of Order I Rule 10(2) clearly

indicates that the necessary parties in a suit for

specific performance of a contract for sale or an

agreement to sell, are the parties to the contract or, if

they are dead, their legal representatives, as also

persons who had purchased the contracted property from the

vendor. A subsequent purchaser would be a necessary party

since his rights would be affected irrespective of whether

he had purchased the contracted property, with or without

notice of the contract. However, it was clarified that a

person whose claim is adverse to the claim of a vendor, is

not a ‘necessary party’. Therefore, two tests were laid

down by this Court, which must be satisfied for

determining the question as to who is a necessary party —

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(1) there must be a right to some relief against such

party in respect of the controversies involved in the

proceedings; (2) no effective decree can be passed in the

absence of such party. The relevant observations read as

under:

“7. In our view, a bare reading of this

provision, namely, second part of Order 1 Rule 10

sub-rule (2) CPC would clearly show that the

necessary parties in a suit for specific

performance of a contract for sale are the

parties to the contract or if they are dead,

their legal representatives as also a person who

had 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. A purchaser is a

necessary party as he would be affected if he had

purchased with or without notice of the contract,

but a person who claims adversely to the claim of

a vendor is, however, not a necessary party . From

the above, it is now clear that two tests are to

be satisfied for determining the question who is

a necessary party. Tests are — (1) there must be

a right to some relief against such party in

respect of the controversies involved in the

proceedings; (2) no effective decree can be

passed in the absence of such party .”

(Emphasis supplied)

(ii)Secondly, as regards the meaning of “proper party”, it was

observed that in case of a suit for specific performance,

the guiding principle for deciding who is a proper party

is that the presence of such a party is necessary to

adjudicate the controversies involved in the suit for

specific performance of the agreement to sell. Such a

question has to be decided while keeping in mind the scope

16

of the suit for specific performance. If the addition of

that party enlarges the scope of such suit so as to

convert it into a suit for title, then the presence of

such a party cannot be said to be necessary for the

effective adjudication of the controversies involved in

the suit. The relevant observations read as under:

“11. As noted hereinearlier, two tests are

required to be satisfied to determine the

question who is a necessary party, let us now

consider who is a proper party in a suit for

specific performance of a contract for sale. For

deciding the question who is a proper party in a

suit for specific performance the guiding

principle is that the presence of such a party is

necessary to adjudicate the controversies

involved in the suit for specific performance of

the contract for sale. Thus, the question is to

be decided keeping in mind the scope of the suit.

The question that is to be decided in a suit for

specific performance of the contract for sale is

to the enforceability of the contract entered

into between the parties to the contract. If the

person seeking addition is added in such a suit,

the scope of the suit for specific performance

would be enlarged and it would be practically

converted into a suit for title . Therefore, for

effective adjudication of the controversies

involved in the suit, presence of such parties

cannot be said to be necessary at all. Lord

Chancellor Cottenham in Tasker v. Small [(1834)

40 ER 848 : 3 My & Cr 63] made the following

observations: (ER pp. 850-51)

‘It is not disputed that, generally, to a

bill for a specific performance of a contract

of sale, the parties to the contract only are

the proper parties; and, when the ground of the

jurisdiction of Courts of Equity in suits of

that kind is considered it could not properly

be otherwise. The Court assumes jurisdiction in

such cases, because a court of law, giving

damages only for the non-performance of the

17

contract, in many cases does not afford an

adequate remedy. But, in equity, as well as at

law, the contract constitutes the right, and

regulates the liabilities of the parties; and

the object of both proceedings is to place the

party complaining as nearly as possible in the

same situation as the defendant had agreed that

he should be placed in. It is obvious that

persons, strangers to the contract, and,

therefore, neither entitled to the right, nor

subject to the liabilities which arise out of

it, are as much strangers to a proceeding to

enforce the execution of it as they are to a

proceeding to recover damages for the breach of

it.’

---xxx---

13. From the aforesaid discussion, it is pellucid

that necessary parties are those persons in whose

absence no decree can be passed by the court or

that there must be a right to some relief against

some party in respect of the controversy involved

in the proceedings and proper parties are those

whose presence before the court would be

necessary in order to enable the court

effectually and completely to adjudicate upon and

settle all the questions involved in the suit

although no relief in the suit was claimed

against such person.”

---xxx---

15. […] In the case of Vijay Pratap v. Sambhu

Saran Sinha [(1996) 10 SCC 53] this Court had

taken the same view which is being taken by us in

this judgment as discussed above. This Court in

that decision clearly held that 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, in our view, a

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 . […]”

18

(Emphasis supplied)

(iii)Thirdly, an intervenor seeking to be impleaded must be

directly and legally interested in the answers to the

controversies involved in the suit for specific

performance of the agreement to sell. It was held that a

person is considered to be legally interested in the

answers to the controversy, only if he can satisfy the

court that it may lead to a result that would legally

affect him. The relevant observations read as under:

---xxx---

“17. […] Apart from that, the intervener must be

directly and legally interested in the answers to

the controversies involved in the suit for

specific performance of the contract for sale.

In Amon v. Raphael Tuck and Sons Ltd. [(1956) 1

All ER 273 : (1956) 1 QB 357 : (1956) 2 WLR 372]

it has been held that a person is legally

interested in the answers to the controversies

only if he can satisfy the court that it may lead

to a result that will affect him legally .”

(Emphasis supplied)

26.However, this Court, in its subsequent decision in Sumtibai

(supra), was faced with a factual scenario wherein the sons of

the original defendant were also prima facie found to be co-

owners of the contracted property. The sons were already

impleaded in their capacity of being legal representatives to the

deceased defendant who had entered into an agreement to sell in

favour of the plaintiff therein. In this background, it was

observed that it cannot be laid down as an absolute proposition

that in a suit for specific performance, a third party can never

19

be impleaded. It was opined that the decision of this court in

Kasturi (supra) must be seen in the context in which it was

delivered. Furthermore, some circumstantial flexibility is

necessary to be taken into account in each case, since an

additional or different fact may materially change the

conclusion. Therefore, the sons of the original defendant were

allowed to file an additional written statement and take the

defence of co-ownership which was available to them.

27.While distinguishing Kasturi (supra), it was held in Sumtibai

(supra) that if a third party can show a fair semblance of

title or interest, he can file an application for impleadment

in the suit for specific performance. The relevant observations

read thus:

“13. As held in Bharat Petroleum Corpn.

Ltd. v. N.R. Vairamani [(2004) 8 SCC 579 : AIR 2004

SC 4778] a decision cannot be relied on without

disclosing the factual situation. In the same

judgment this Court also observed : (SCC pp. 584-

85, paras 9-12)

‘9. Courts should not place reliance on

decisions without discussing as to how the

factual situation fits in with the fact

situation of the decision on which reliance is

placed. Observations of courts are neither to be

read as Euclid's theorems nor as provisions of a

statute and that too taken out of their context.

These observations must be read in the context

in which they appear to have been stated .

Judgments of courts are not to be construed as

statutes. To interpret words, phrases and

provisions of a statute, it may become necessary

for judges to embark into lengthy discussions

but the discussion is meant to explain and not

to define. Judges interpret statutes, they do

not interpret judgments. They interpret words of

statutes; their words are not to be interpreted

as statutes. In London Graving Dock Co.

Ltd. v. Horton [1951 AC 737 (HL)] (AC at p. 761)

Lord MacDermott observed : (All ER p. 14 C-D)

[…]’

---xxx---

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14. In view of the aforesaid decisions we are of

the opinion that Kasturi case [(2005) 6 SCC 733] is

clearly distinguishable. In our opinion it cannot

be laid down as an absolute proposition that

whenever a suit for specific performance is filed

by A against B, a third party C can never be

impleaded in that suit. In our opinion, if C can

show a fair semblance of title or interest he can

certainly file an application for impleadment. To

take a contrary view would lead to multiplicity of

proceedings because then C will have to wait until

a decree is passed against B, and then file a suit

for cancellation of the decree on the ground

that A had no title in the property in dispute.

Clearly, such a view cannot be countenanced .”

(Emphasis supplied)

28.This Court in Mumbai International Airport (supra) was also of

the view that different situations require the application of

different facets of Order I Rule 10(2) and consequently, held

that there was no conflict between the decisions of this Court

in Kasturi (supra) and Sumtibai (supra). It was reiterated that

that Order I Rule 10(2) CPC did not pertain to the ‘right’ of a

non-party to be impleaded as a party but deals with the

‘judicial discretion’ of the court to strike out or add parties

at any stage of the proceeding. In exercising this judicial

discretion, courts must act according to reason and fair play

and not according to whims and caprice.

29.It was observed that the court may exercise discretion in

impleading a person who is a ‘proper party’ upon an application

by a non-party to the suit for specific performance. If the

court is of the view that the impleadment of such a proper

party will alter the nature of the suit or introduce a new

cause of action, it may either refuse to implead such person or

order for his impleadment on certain conditions. However, even

21

otherwise, the court would not be precluded from impleading a

‘proper party’ unconditionally in its discretion. The relevant

observations rendered in Mumbai International Airport (supra)

read thus:

“24.4 If an application is made by a plaintiff for

impleading someone as a proper party, subject to

limitation, bona fides, etc., the court will

normally implead him, if he is found to be a proper

party. On the other hand, if a non-party makes an

application seeking impleadment as a proper party

and the court finds him to be a proper party, the

court may direct his addition as a defendant; but

if the court finds that his addition will alter the

nature of the suit or introduce a new cause of

action, it may dismiss the application even if he

is found to be a proper party, if it does not want

to widen the scope of the specific performance

suit; or the court may direct such applicant to be

impleaded as a proper party, either unconditionally

or subject to terms . For example, if D claiming to

be a co-owner of a suit property, enters into an

agreement for sale of his share in favour

of P representing that he is the co-owner with

half-share, and P files a suit for specific

performance of the said agreement of sale in

respect of the undivided half-share, the court may

permit the other co-owner who contends that D has

only one-fourth share, to be impleaded as an

additional defendant as a proper party, and may

examine the issue whether the plaintiff is entitled

to specific performance of the agreement in respect

of half a share or only one-fourth share;

alternatively the court may refuse to implead the

other co-owner and leave open the question in

regard to the extent of share of the defendant

vendor to be decided in an independent proceeding

by the other co-owner, or the plaintiff;

alternatively the court may implead him but subject

to the term that the dispute, if any, between the

impleaded co-owner and the original defendant in

regard to the extent of the share will not be the

subject-matter of the suit for specific

22

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.

25. In other words, the court has the discretion to

either to allow or reject an application of a

person claiming to be a proper party, depending

upon the facts and circumstances and no person has

a right to insist that he should be impleaded as a

party, merely because he is a proper party .”

(Emphasis supplied)

30.Having discussed the aforesaid position of law, it would be

apposite to look into the reasoning which was adopted by the High

Court in its impugned decisions. It appears from the line of

reasoning that the High Court entertained a serious doubt on the

genuineness of the entire transaction between one (Late) Mr.

Sameer Ghosh i.e., original defendant no. 3 and the appellant

herein i.e., original defendant No.8. (Late) Mr. Sameer Ghosh is

said to have obtained a probate on the strength of one particular

will and on the strength of that probate he is said to have

executed first, an agreement of sale in favour of the original

defendant no. 8 and thereafter, a sale deed with respect to the

suit property. According to the High Court, this transaction is

doubtful. The High Court has gone further to say that the

documents i.e., the agreement and the sale deed are also

doubtful.

31.In such circumstances referred to above, the High Court

thought fit to take the view that the appellant herein is neither

23

a necessary party nor a proper party.

32.Having regard to the material on record, we are of the view

that the High Court should not have interfered with the order

passed by the Trial Court impleading the original defendant no. 8

(appellant herein) as one of the defendants in exercise of its

supervisory jurisdiction under Article 227 of the Constitution of

India, 1950. We say so because the genuineness of the

transaction, if any, including the genuineness of the documents

is to be looked into in the course of the trial. A party who is

seeking impleadment may not be a necessary party but still, could

be termed as a proper party. There is a fine distinction between

a necessary party and a proper party. A necessary party is a

person in whose absence no effective decree could be passed at

all by the court. Whereas a proper party is one who though not a

necessary party is a person whose presence would enable the court

to effectively and adequately adjudicate upon all matters in

dispute in the suit.

33.We need not say anything further in the matter. We may only

say that insofar as the transaction between (Late) Mr. Sameer

Ghosh and the original defendant no. 8 (appellant herein) is

concerned, the same shall be a subject matter of trial. We do not

express any opinion in this regard at this point of time. We may

only say that the presence of the appellant in the suit is

required for proper and effective adjudication of the dispute in

the suit. We say so while giving additional regard to the fact

that the original plaintiff has not opposed the impleadment of

24

the original defendant no. 8 in his suit. We keep all contentions

open for all the parties concerned to be canvassed before the

Trial Court.

34.In the result, these appeals succeed and are hereby allowed.

The impugned orders dated 12.12.2023 and 12.06.2023 respectively

in Review Petition No. 717 of 2023 and Miscellaneous Petition

No.5567/2018 respectively passed by the High Court are set aside

and that of the Trial Court is restored. Accordingly, the appeals

stand allowed in the aforesaid terms.

35.Pending application(s), if any, shall stand disposed of.

....................,J.

(J.B. PARDIWALA)

....................,J.

(R. MAHADEVAN)

NEW DELHI;

APRIL 22, 2025.

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