The Bombay High Court held that a suit for specific performance cannot be allowed to be converted into a suit for title of a stranger and for possession by allowing impleadment of parties claiming title over the property. This was so held in the matter of in the matter of Divyesh Construction Pvt. Ltd. Vs. Virsen B. Solanki, Chamber Summons No. 683 of 2014 in Suit No. 216 of 2011.
In the facts of the matter, two applicants sought impleadment as Defendants in the suit filed by the Plaintiffs for the relief of specific performance of a MoU in the nature of agreement to sell. The Applicants contended to be the title holders of the suit property by virtue of documents executed with the duly registered with the owners and duly reflected in the record of rights. They submitted that the subject matter of the suit and the property purchased by them is the same.
It was the case of the applicants that even in a suit for specific performance of agreement, third party can be impleaded as Defendant if such party has an interest and if such party claims right, title and interest in the suit property. They contended to be in possession of the suit property and had paid substantial amount of consideration in respect of the suit property under various documents entered into between the owners of the properties and the Applicants. The Applicants further submitted that if they are impleaded as Defendants to the suit, the Applicants would file counter claim in this suit and would claim various reliefs in respect of the suit property against the parties of the suit.
On the other hand, the Plaintiffs opposed the impleadment stating that the Applicants are neither claiming through the Plaintiffs nor the Defendant and are totally strangers to the suit and thus cannot be impleaded as parties to this suit inter-alia praying for specific performance of MOU and for other reliefs. It was further contended by the Plaintiffs that the report submitted by the Court Receiver while taking possession of the suit property does not disclose the name of the Applicants to be found in possession of the suit property at the time of Court Receiver taking possession of the suit property. Further, the applicants did not produce any document to show their possession. The Applicants did not file any independent suit to protect their alleged possession or for claiming any independent rights in the suit property. The Plaintiffs submitted that the Applicants are neither necessary nor proper parties for adjudication of the dispute in the present suit.
The Bombay High Court observed that the averments made by the applicants show that the applicants are not claiming any right, title or interest in the suit property, either through the Plaintiffs or the Defendant. They also have not filed any separate and independent suit for declaration of their alleged right, title and interest in the suit property or to protect their alleged possession. Furthermore, the alleged possession of the applicants was seriously disputed by the Plaintiffs. The applicants could not demonstrate even their prima facie possession in respect of any portion of the suit property.
Relying on the judgment of Kasturi vs. Iyyamperumal (2005) 6 SCC 733 it was held that the alleged dispute in respect of the alleged title and possession raised by the applicants in respect of the suit property cannot be adjudicated upon by this Court in this suit inter-alia praying for specific performance of the suit agreement as the applicants are neither claiming through the Plaintiffs, nor the Defendant. It was also held that even if the Plaintiffs have prayed for possession of the suit property, the applicants would be neither necessary nor proper parties to a suit for specific performance. A suit for specific performance cannot be allowed to be converted into a suit for title of a stranger and for possession. Furthermore it was held that if the plea of impleadment is accepted and if the strangers to the contract are allowed to be impleaded as Defendants to a suit for specific performance, a suit for specific performance would be converted into a suit for title and possession, for adjudication of the alleged right, title and interest of stranger to the contracts which is subject matter of a suit for specific performance.