Supreme Court of India
M/S J N REAL ESTATEversusSHAILENDRA PRADHAN & ORS.
- Citation
- 2025 INSC 611
- Decided
- 22 April 2025
- Disposal
- Appeal(s) allowed
- Bench
- B PARDIWALA
Holding
The appellant, though not a necessary party, is a proper party and the High Court erred in setting aside the trial court’s order; the trial court’s order is restored.
Summary
The dispute involved multiple claims over the same property, with the original plaintiff seeking specific performance of an agreement to sell and the appellant (original defendant No.8) seeking to be impleaded as a defendant under Order 1 Rule 10 of the CPC. The trial court allowed the appellant’s impleadment, but the High Court, exercising supervisory jurisdiction under Article 227, set aside that order, holding the appellant was neither a necessary nor a proper party. On appeal, the Supreme Court examined the distinction between necessary and proper parties, emphasizing that a party need not be necessary to be impleaded if his presence aids effective adjudication. Relying on precedents such as Mumbai International Airport Ltd. and Kasturi v. Iyyamperumal, the Court held that the appellant, though not a necessary party, was a proper party and the High Court’s interference was unwarranted. Consequently, the trial court’s order was restored and the appeals were allowed.
Issues considered
- Whether the appellant is a necessary party or a proper party for impleadment under Order 1 Rule 10 of the CPC in a suit for specific performance.
- Whether the High Court was justified in setting aside the trial court’s order impleading the appellant.
- Interpretation of the concepts of ‘necessary party’ and ‘proper party’ under Order 1 Rule 10 CPC.
- Scope of supervisory jurisdiction of a High Court under Article 227 of the Constitution in interfering with trial court orders on impleadment.
Legislation cited
- Code of Civil Procedure, 1908s. Order 1 Rule 10
- Constitution of Indias. Article 227
Headnote
Issue for Consideration Whether the High Court was justified in setting aside the order passed by the Trial Court impleading the appellant as one of the defendants in the suit instituted by the original plaintiff for specific performance of the agreement to sell. Headnotes† Civil Procedure – ‘Proper party’ vis-à-vis ‘necessary party’ – Subsequent purchaser – Suit for specific performance – Appellant sought impleadment as defendant in the suit instituted by the original plaintiff for specific performance of the agreement to
Subjects
Order 1 Rule 10impleadmentnecessary partyproper partyspecific performancecivil proceduresupervisory jurisdictionArticle 227probatesale deedtitle dispute
Judgment
[2025] 4 S.C.R. 2663 : 2025 INSC 611
M/s J N Real Estate
v.
Shailendra Pradhan & Ors.
(Civil Appeal No(s). 5405-5406 of 2025)
22 April 2025
[J.B. Pardiwala* and R. Mahadevan, JJ.]
Issue for Consideration
Whether the High Court was justified in setting aside the order
passed by the Trial Court impleading the appellant as one of the
defendants in the suit instituted by the original plaintiff for specific
performance of the agreement to sell.
Headnotes†
Civil Procedure Code, 1908 – Or.1, r.10 – ‘Proper party’ vis-à-vis
‘necessary party’ – Subsequent purchaser – Suit for
specific performance – Appellant sought impleadment as
defendant in the suit instituted by the original plaintiff
for specific performance of the agreement to sell –
Allowed by Trial Court – Order set aside by High Court –
Interference with:
Held: A party seeking impleadment may not be a necessary
party but still, could be 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 – In the instant case, the presence
of the appellant in the suit is required for proper and effective
adjudication of the dispute in the suit – Also, the original plaintiff
did not oppose the impleadment of the appellant in his suit – High
Court should not have interfered with the order passed by the Trial
Court impleading the appellant as one of the defendants as the
genuineness of the transaction, if any, including the genuineness
* Author
2664 [2025] 4 S.C.R.
Supreme Court Reports
of the documents is to be looked into during the trial – Impugned
orders passed by the High Court set aside, order of Trial Court
restored. [Paras 32-34]
Case Law Cited
Mumbai International Airport (P) Ltd. v. Regency Convention Centre
& Hotels (P) Ltd. [2010] 7 SCR 790 : (2010) 7 SCC 417; Kasturi v.
Iyyamperumal [2005] 3 SCR 864 : (2005) 6 SCC 733; Sumtibai v.
Paras Finance Co. Regd. Partnership Firm Beawer (Raj.) [2007]
10 SCR 543 : (2007) 10 SCC 82 – referred to.
List of Acts
Code of Civil Procedure, 1908; Constitution of India.
List of Keywords
Order 1 Rule 10 of the Civil Procedure Code, 1908; Impleadment;
Impleadment as defendants; Subsequent purchaser; Proper party;
Necessary party; Suit for specific performance; Impleadment in
suit for specific performance; Will; Testator; Agreement to sell;
Cancellation of probate certificate; Probate certificate; Supervisory
jurisdiction; Article 227 of the Constitution of India.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No(s).
5405-5406 of 2025
From the Judgment and Order dated 12.12.2023 and 12.06.2023
of the High Court of Madhya Pradesh Principal Seat at Jabalpur
in RP No. 717 of 2023 of MP No. 5567 of 2018, respectively
Appearances for Parties
Advs. for the Appellant:
C.U. Singh, Gaurav Agarwal, Sr. Advs., S.Sukumar, Sreegesh
M.K., Anand Sukumar, Bhupesh Kumar Pathak, Mrs. Ruche Anand.
Advs. for the Respondents:
Navin Pahwa, Sr. Adv., Vivek Singh, Ritik Dwivedi, Ms. Tanvi Anand,
Ms. Rida Shafique, Ms. Prerna Priyadarshini, Syed Faraz Alam,
Atharva Gaur, Aayushman Aggarwal.
[2025] 4 S.C.R. 2665
M/s J N Real Estate v. Shailendra Pradhan & Ors.
Judgment / Order of the Supreme Court
Order
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.
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 9th 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.
2666 [2025] 4 S.C.R.
Supreme Court Reports
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 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 8th 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 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.
[2025] 4 S.C.R. 2667
M/s J N Real Estate v. Shailendra Pradhan & Ors.
(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 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.
2668 [2025] 4 S.C.R.
Supreme Court Reports
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.
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
[2025] 4 S.C.R. 2669
M/s J N Real Estate v. Shailendra Pradhan & Ors.
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 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
2670 [2025] 4 S.C.R.
Supreme Court Reports
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.
[2025] 4 S.C.R. 2671
M/s J N Real Estate v. Shailendra Pradhan & Ors.
On behalf of defendant no. 04, it has been expressed in
detail in written reply to the above application filed 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/-.
2672 [2025] 4 S.C.R.
Supreme Court Reports
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.
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 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:
[2025] 4 S.C.R. 2673
M/s J N Real Estate v. Shailendra Pradhan & Ors.
“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
2674 [2025] 4 S.C.R.
Supreme Court Reports
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 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
[2025] 4 S.C.R. 2675
M/s J N Real Estate v. Shailendra Pradhan & Ors.
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.
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.714/2023 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.”
2676 [2025] 4 S.C.R.
Supreme Court Reports
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 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:
“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
[2025] 4 S.C.R. 2677
M/s J N Real Estate v. Shailendra Pradhan & Ors.
whose presence before the court may be necessary in
order to enable the court to effectively and completely
adjudicate upon and settle the q uestions 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 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
2678 [2025] 4 S.C.R.
Supreme Court Reports
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 — (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)
[2025] 4 S.C.R. 2679
M/s J N Real Estate v. Shailendra Pradhan & Ors.
(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 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
2680 [2025] 4 S.C.R.
Supreme Court Reports
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 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
[2025] 4 S.C.R. 2681
M/s J N Real Estate v. Shailendra Pradhan & Ors.
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. […]”
(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 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
2682 [2025] 4 S.C.R.
Supreme Court Reports
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---
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
[2025] 4 S.C.R. 2683
M/s J N Real Estate v. Shailendra Pradhan & Ors.
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 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
2684 [2025] 4 S.C.R.
Supreme Court Reports
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 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
[2025] 4 S.C.R. 2685
M/s J N Real Estate v. Shailendra Pradhan & Ors.
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 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 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.
2686 [2025] 4 S.C.R.
Supreme Court Reports
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.
Result of the case: Appeals allowed.
†
Headnotes prepared by: Divya Pandey
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