MUMBAI INTERNATIONAL AIRPORT PVT. LTD.versusREGENCY CONVENTION CENTRE & HOTELS PVT. LTD.

                         [2010] 7 S.C.R. 790

A       MUMBAI INTERNATIONAL AIRPORT PVT. LTD.
                            v.
    REGENCY CONVENTION CENTRE & HOTELS PVT. LTD.
                          & ORS.
             (Civil ~ppeal No. 4900 of 2010)
B
                          -
                         ".,....JULY 6, 2010
    [R.V. RAVEENDRAN ·AND K.S. RADHAKRISHNAN, JJ.]

         Code of Civil Procedure, 1908 - 0. I r. 10(2) - Striking
C   out or adding patties at any stage of a proceeding -Work of
    modernisation and upgradation of Airporl - Grant of lease of
    premises of airporl by Airp'prl authority to appellant - Parl of
    airporl land not included in. lease deed in view of a pending
    suit for performance filed by first respondent against Airporl
D   Authority - Said land could become parl of Airport premises
    subject to decision by courl - Application for impleadment by
    appellant as additional defendant - Dismissal of, by courts
    below - Interference with - Held: Not called for - Person who
    expects to get lease from defendant in suit for specific
E   performance in the event of suit being dismissed, cannot be
    said to be a person having some semblance of title, in the
    properly in dispute - Appellant is neither a necessary patty
    nor a proper patty - He is neither purchaser nor lessee of suit
    properfy - He has no right, title or interest therein nor is
F   claiming any right or remedy against first respondent and first
    respondent is also not claiming fmy right or remedy against
    appellant in the suit against Airporl authority.

      The Airport Authority ·of lndia(AAl)-second
  respondent initiated a competitive bidding process for
G modernisation and upgradation of International Airport,
  Mumbai. The said work was handed over to the
  appellant. AAI leased out the Mumbai airport to the
  appellant. Certain land which was part of the airport was
  not made a part of the lease deed in view of a pending
H                            790
   MUMBAI INTERNATIONALAIRPORTPVT. LTD. v. REGENCY         791
       CONVENTION CENTRE & HOTELS PVT. LTD.

case. The said premises could become part of the                   A
demised premises subject to the decision by the court.
The appellant filed an application seeking impleadment
as an additional defendant in the pending suit for specific
performance filed by the first respondent against AAI. It
was submitted that his interest was likely to be directly          B
affected if any relief is granted to the first respondent in
the suit. The Single Judge as also the Division Bench of
High Court dismissed the application. Hence the appeal.

    Dismissing the appeal, the Court
                                                                   c
      HELD: 1.1. The general rule in regard to impleadment
of parties is that the plaintiff in a suit, being dominus litis,
may choose the persons against whom he wishes to
litigate and cannot be compelled to sue a person against
whom he does not seek any relief. Consequently, a                  D
person who is not a party has no right to be impleaded
against the wishes of the plaintiff. But this general rule
is subject to the provisions of Order I Rule 10(2) of Code
of Civil Procedure, 1908 which provides for impleadment
of proper or necessary parties. [Para 8) [799-H; 800-A-B]          E

     1.2. Order I Rule 10 (2) 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              F
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 question                 G
involved in the suit. The court is given the discretion to
add as a party, any person who is found to be a
necessary party or proper party. 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               H
    792    SUPREME COURT REPORTS                [2010] 7 S.C.R.

A 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 matt~rs in
B disputes 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
c 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. [Para 8] [800-E-H; 801-A-C]

       1.3. The two decisions-* Sumtibai's case and
D **Kasturi's case were dealing with different situations
  requiring application of different facets of sub-rule (2) of
  Rule 10 of Order I. There is no conflict between the two
  decisions. This is made clear in * Sumtibai itself. Every
  judgment must be governed and qualified by the
E particular facts of the case in which such expressions are
  to be found; that a little difference in facts or additional
  facts may make a lot of difference in the precedential
  value of a decision and that even a single significant detail
  may alter the entire aspect; that there is always peril in
F treating the words of a judgment as though they were
  words in a legislative enactment, and that judicial
  utterances are made in the setting of the facts of a
  particular case. [Paras 11 and 13] [803-B-D; 805-H; 806-
  A-C]
G
        *Sumtibai v. Paras Finance Co. 2007 (10) SCC 82;
    **Kasturi V. /yyamperuma/ 2005 (6) sec 733; Ramesh
    Hirachand Kundanma/ v. Municipal Corporation of Greater
    Bombay 1992 (2) SCC 524; Anil Kumar Singh v. Shivnath
    Mishra 1995 (3) SCC 147, referred to.
H
   MUMBAI INTERNATIONALAIRPORTPVT. LTD. v. REGENCY       793
       CONVENTION CENTRE & HOTELS PVT. LTD.
                                \

       1.4. Order I of Rule 10{2) CPC is not about the right    A
of a non-party to be impleaded as a party, but about the
judicial discretion of the court to strike out or add parties
at any stage of a proceeding. The discretion under the
sub-rule can be exercised either suo moto or on the
application of the plaintiff or the defendant, or on an         B
 application of a person who is not a party to the suit. The
 court can strike out any party who is improperly joined.
The court can add anyone as a plaintiff or as a defendant
 if it finds that he is a necessary party or proper party.
 Such deletion or addition can be without any conditions        c
 or subject to such terms as the court deems fit to impose.
 In exercising its judicial discretion under Order 1 Rule
 10(2) of the Code, the court will of course act according
 to reason and fair play and not according to whims and
 caprice. (Para 12) (803-E-H]                                   D

     Ramji Dayawala and Sons (P) Ltd. vs. Invest Import 1981
(1) sec 80 - referred to.

     R. vs. Wilkes 1770 (98) ER 327, referred to.
                                                                E
      2.1 On a careful examination of the facts of the case,
it is found that the appellant is neither a necessary party
nor a proper party. The appellant is neither a purchaser
nor the lessee of the suit property and has no right, title
or intere~t therein. First respondent - plaintiff in the suit
                                                              F
has not sought any relief against the appellant. The
presence of the appellant is not necessary for passing·
an effective decree in ,the suit for specific performance.
Nor is its presence necessary for complete and effective
adjudication of the matters in issue in the suit for specific
performance filed by the first respondent-plaintiff against G
AAI. A person who expects to get a lease from the
defendant in a suit for specific performance in the event
of the suit being dismissed, cannot be said to be a person
having some semblance of title, in the property ha dispute.
[Para 14) (806-D-F]                                           H
    794     SUPREME COURT REPORTS                [2010) 7 S.C.R.

A      2.2. The submission that in view of section 12A of the
  Airports Authority of India Act, 1994 when AAI granted a
  lease of the premises of an airport, to carry out any of its
  functions enumerated in section 12 of the said Act, the
  lessee who has been so assigned any function of AAI,
B shall have the powers of AAI, necessary for the
  performance of such functions in terms of the lease; and
  that in view of this provision, it should be deemed that
  the appellant has stepped into the shoes of AAI so far as
  the Airport premises are concerned, cannot be accepted.
c The appellant as lessee may certainly have the powers
  of AAI necessary for performance of the functions that
  have been assigned to them. What has been assigned is
  the function of operation, management and development
  agreement with reference to the area that been demised.
0 Obviously the appellant as lessee of the Airport cannot
  step into the shoes of AAI for performance of any
  functions with reference to an area which has not been
  demised or leased to it. [Para 15] [806-G-H; 807-A-B]

         2.3 The submission that Mumbai airport being one of
E   the premier airports in India with a very high and ever
    increasing passenger traffic, needs to modernise and
    develop every inch of the airport land; that the suit land
    was a part of the airport land and that for the pendency
    of first respondent's suit within an interim or~r, AAI
F   would have included the suit land also in the lease in its
    favour; that therefore a note was made in the lease that
    the land measuring 31000 sq.m. was not being made a
    part of the lease but may become part of the demised
    premises subject to the court verdict, does not in any way
G   help the appellant to claim a right to be impleaded. If the
    interim order in the suit filed by the first respondent came
    in the way of granting the lease of the suit land, it is clear
    that the suit land was not leased to appellant. The fact that
    if AAI succeeded in the suit, the suit land may also be
H   leased to the appellant is not sufficient to hold that the
     MUMBAI INTERNATIONALAIRPORT PVT. LTD. v. REGENCY       795
         CONVENTION CENTRE & HOTELS PVT. LTb.

 appellant has any right, interest or a semblance of right         A
 or interest in the suit property. When appellant is neither
 claiming any right or remedy against the first respondent
 and when first respondent is not claiming any right or
 remedy against the appellant, in a suit for specific
 performance by the first respondent against AAI, the              B
 appellant cannot be a party. The allegation that the land
 is crucial for a premier airport or in public interest, are not
 relevant to the issue. [Para 16] [807-C-G]

                      Case Law Reference:
                                                                   c
 2001 (1 O) sec 82          Referred to.     Para 9, 10, 11, 13
  2005 (6) sec 733          Referred to.     Para 10
  1992 (2) sec 524          Referred to.     Para 11
 . 1995 (3) sec 147         Referred to.     Para 11               D

  1981 (1) sec 80            Referred to.    Para 12
  1770 (98) ER 327           Referred to.    Para 12

      CIVIL APPELLATE JURIS.DICTION : Civil Appeal No.             E
  4900 of 2010.

       From the Judgment and Order dated 25.08.2008 of the
  High Court of Judicature at Bombay in Appeal No. 273 of 2008
  in chamber summons No. 170 of 2008 in Suit No. 6864 of           F
  1999.

      Dr. A.M. Singhvi and Harish N. Salve, Amar Dave, Ashish
  Jha and Meenakshi Chatterjee (for "Coac") for the Appellant.

      Mukul Rohatgi, S.V. Mehta, Bhargava V. Desai, Rahul          G
  Gupta, Nikhil Sharma, E.C. Agrawala, Mahesh Agarwal, Rishi
  Agrawala, Gaurav Goel, Praveen Jain, Mukesh Kumar and
, Padma Priya (for M.V. Kini & Associates) for the Respondents.

      The Judgment of the Court was delivered by
                                                                   H
    796     SUPREME COURT REPORTS                    [2010] 7 S.C.R.


A        R.V.RAVEENDRAN, J. 1. Leave granted. Heard the
    learned counsel.

        2. The Airport Authority of India (second respondent
  herein, Ml for short) established under the Airports Authority
  of India Act, 1994 ('Act' for short) to be responsible for the
8 development, operation and maintenance of airports in India.
  The Government of India took a policy decision to amend the
  Act by Amendment Act 43 of 2003 enabling the AAI to lease
  the airport premises, to private operators with prior approval
  of the Central Government and assign its functions to its
C lessees except air traffic services and watch and ward. In
  pursuance of the policy of the government in this behalf, the Ml
  decided to entrust the work of modernisation and upgradation
  of the Mumbai Airport to a private operator, to serve the sharply
  increasing volume of passengers and for better utilisation of the
D Airport. AAI initiated a competitive bidding process in that
  behalf. In the information memorandum that was issued to the
  prospective bidders it was represented that the entire airport
  premises will be included in the transaction including all
  encroached land but excluding only the following areas : (i) New
E ATC tower; (ii) AAI staff colony; (iii) Hotel Leela Venture, and
  (iv) All retail fuel outlets outside the airport operational boundary.

       3. Pursuant to the competitive bidding process, the
  Chhtrapati Shivaji International Airport, Mumbai was handed
F over to the appellant for operation, maintenance, development
  and expansion into a world class airport under an agreement
  dated 4.4.2006. In pursuance of it, AAI entered into a lease
  deed dated 26.4.2006 leasing the Mumbai airport to the
  appellant on "as is where is" basis for a period of 30 years.
  The subject matter of the lease was described as "all the land
G (along with any buildings, constructions or immovable assets,
  if any, thereon) which is described, delineated and shown in
  Schedule I hereto, other than (i) any lands (along with any
  buildings, constructions or immovable assets, if any, thereon)
  granted to any third party under any existing lease(s),
H
MUMBAI INTERNATIONAL AIRPORT PVT. LTD. v. REGENCY, 797
CONVENTION CENTRE & HOTELS PVT. LTD. [R.V RAVEENDRAN, J.)

constituting the Airport on the date hereof; and (ii) any and all   A
of the carved out assets". Schedule I to the lease deed, instead
of giving a detailed description of the demised property,
referred to the map demarcating the demised premises
annexed to the lease deed by lfo/ay of description of the
demis)ld premises. The map annexed as Schedule I was the,           B
"plan showing the demised premises, indicating carved out
assets and lands vested with IAF and Navy". The carved out
assets were : (1) new ATC tower; (2) ~ (2A) th~ NAO staff
colony of AAI; (3) land leased to Hotel '.Leela Venture; (4) all
retail fuel outlets which were oil_tside the airport operational    c
boundary; and (5) convention centre. The map also contains a
note below the list of carved out assets, reading as u·nder: "A :
The parcel of land measuring 31,000 sq.mts. is currenfly not
made a part of the ,lease deed but may become part of the
demised premises subject to the court verdict".                     D

    4. According to the appellant the said parcel measuring
31,000 sq.m. was also part of the airport that was to be handed
over by AAI to appellant but it could not be included in view of
a pending case (Suit No.6846 of 1999 on the file of the Bombay
High Court) filed by the-first respondent wherein the High Court    E
had made an interim order dated 2.5.2001, relevant portion of
which is extracted below :

      "The Defendant Airport Authority should also separately
demarcate an area of 31000 sq. meters for which the plaintiff       F
is making a claim in this suit. After the land is so demarcated,
a copy of the plan would be handed over to the Plaintiff through
their advocate. The learned Counsel further states that the land
admeasuring 31000 sq. meters, which would be separately
demarcated will not be alienated, sold and transferred and no       G
third party interest in that land would be created by the
Defendants Airport Authority without seeking leave of this
Court. He further states that the Defendant No.1 would use the
31,000 sq. meters of land only for its own purpos~ as far as
possible without raising any permanent construction on that land,
                                                                    H
    798      SUPREME COURT REPORTS                    (201 OJ 7 S.C.R.


A   and if it becomes necessary for the Defendant No.1 to raise
    any permanent construction on that land, the work of
    construction would not be started without giving two weeks
    notice to the Plaintiff, after the building plan is finally sanction
    by the Planning Authority."
B
                                                 (emphasis supplied)

         5. In pursuance of the lease of the airport in its favour, the
    appellant claims to have undertaken several developmental
    activities to make it a world class airport. The appellant alleges
C   that it was expecting that the litigation initiated by the first
    respondent would end and it would be able to get the said
    31,000 sq.m. land also as it was in dire need of land for
    developing the airport. According to the appellant, the Mumbai
    airport is surrounded by developed (constructed) areas with
D   very limited opportunities to acquire any land and the site
    constraints limit the possibilities for development and therefore
    it was necessary to make optimum use of the existing land in
    the airport for the purpose of modernisation and upgradation;
    and therefore, the disputed land which was lying idle, was
E   required for modernisation. It therefore filed an application
    seeking impleadment as an additional defendant in the pending
    suit filed by the first respondent against AAI, contending that
    its interest was likely to be directly affected if any relief is
    granted to the first respondent-plaintiff in the suit. The appellant
F   alleged that the Information Memorandum proposing to
    privatise the management did not exclude the area which was
    the subject-matter of the suit; and that the suit plot could not
    however be leased to the appellant in view of the interim order
    in the pending suit of the first respondent. The appellant
G   therefore claimed that it had, or would have, an interest in the
    suit land; and at all events, it was interested in acquiring it by
    lease depending upon the decision in the suit and therefore it
    was a necessary party and in any event a proper party.

       6. The said application was resisted by the first respondent
H inter alia on the ground that the appellant did not have any
 MUMBAI INTERNATIONAL AIRPORT PVT. LTD. v. REGENCY 799
 CONVENTION CENTRE & HOTELS PVT. LTD. [RV. RAVEENDRAN, J.]

 interest in the suit property and therefore the appellant was       A
 neither a necessary party nor a proper party to the suit. It was
 also contended that AAI itself being a substantial shareholder,
 having 26% share in the appellant company, would protect the
 interest of the appellant by contesting the suit and therefore
 appellant was not a necessary party. AAI has also filed a           B
 response to appellant's application for impleadment raising two
 contentions : (i) any impleadment at that stage of the suit would
 delay the recording of evidence and final hearing thereby
 seriously affecting the interests of AAI; and (ii) the suit plot
 measuring 31000 sq.m. was not leased to the appellant.              c
       7. A learned Single Judge dismissed the appellant's
 application by order dated 1.4.2008. The learned Single Judge
 was of the view that as the appellant was yet to acquire any,
  interest in the suit land and as the pending suit by the first
  respondent was for specific performance of an agreement            D
/which was a distinct earlier transaction between the first
  respondent and AAI to which the appellant was not a party, and
 as the first respondent was not a party to the arrangement
 between AAI and the appellant, the court cannot permit
 impleadment of appellant with reference to some future right        E
 which may accrue in future, after the decision in the suit. The
  appeal filed by the appellant was also dismissed by a Division
  Bench by order dated 25.8.2008. The Division Bench held that
 the appellant did not make out that he was a necessary party
  and the application merely disclosed that he was only claiming     F
 to be a proper party; that the appellant's claim was not based
 on a present demise but a future expectation based on spes
 successionis; and that therefore, the impleadment of appellant
 either as a necessary party or proper party or formal party was
 not warranted. The said order is challenged in this appeal by       G
 special leave. The question for consideration is whether the
 appellant is a necessary or proper party to the suit for specific
 performance filed by the first respondent.

      8. The general rule in regard to impleadment of parties is     H
    800      SUPREME COURT REPORTS                 [2010] 7 S.C.R.


A that the plaintiff in a suit, being dominus litis, may choose the
  persons against whom he wishes to litigate and cannot be
  compelled to sue a person against whom he does not seek any
  relief. Consequently, a person who is not a party has no right
  to be impleaded against the wishes of the plaintiff. But this
B general rule is subject to the provisions of Order I Rule 10(2)
  of Code of Civil Procedure ('Code' for short), which provides
  for impleadment of proper or necessary parties. The said sub-
  rule is extracted below:

          "Court may strike out or add parties.
c
      (2) The Court may at any stage of the proceedings, either
  upon or without the application of either party, and on such
  terms as may appear to the Court to be just, order that the
  name of any party improperly joined, whether as plaintiff or
D defendant, be struck out, and that the name of any person who
  ought to have been joined, whether as plaintiff or defendant, or
  whose presence before the Court may be necessary in order
  to enable the Court effectually and completely to adjudicate
  upon and settle all the questions involved in the suit, be added."
E
       The said provision makes it clear that a court may, at any
  stage of the proceedings (including suits for specific
  performance), eit•. ~r 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
F 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 question involved in
  the suit. In short, the court is given the discretion to add as a
G party, any person who is found to be a necessary party or
  proper party. 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.
H A 'proper party' is a party who, though not a necessary party,
  MUMBAI INTERNATIONAL AIRPORT PVT. LTD. v. REGENCY 801
. CONVENTION CENTRE & HOTELS PVf LTD. [RV. RAVEENDRAN, J.]

 is a person whose presence would enable the court to                     A
 completely, effectively and adequately adjudicate upon all
 matters in disputes 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            B
 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.

      9. The learned counsel for the appellants relied upon the
                                                                          c
 following observations of a two-Judge Bench of this Court in
 Sumtibai v. Paras Finance Co. (2007 (10) SCC 82] to contend
 that a person need not have any subsisting right or interest in
 the suit property for being impleaded as a defendant, and that
 even a person who is likely to acquire an interest therein in            D
 future, in appropriate cases, is entitled to be impleaded as a
 party:

      "Learned counsel for the respondent relied on a three-
 Judge Bench decision of this Court in Kasturi v. lyyamperuma             E
 [2005(6) sec 733]. He has submitted that in this case it has
 been held that in a suit for specific performance of a contract
 for sale of property a stranger or a third party to the contract
 cannot be added as defendant in the suit. In our opinion, the
 aforesaid decision is clearly distinguishable. In our opinion, the       F
 aforesaid decision can only be understood to mean that a third
 party cannot be impleaded in a suit for specific performance if
 he has no semblance of title in the property in dispute.
 Obviously, a busybody or interloper with no semblance of title
 cannot be impleaded in such a suit. That would unnecessarily             G
 protract or obstruct the proceedings in the suit. However, the
 aforesaid decision will have no application where a third party
 shows some semblance of title or interest in the property in
 dispute ......... It cannot be laid down as an absolute
 proposition that whenever a suit for specific performance is             H
    802      SUPREME COURT REPORTS                   [2010] 7 S.C.R.


A   filed by A against B, a third party C can never be impleaded in
    that suit. If C can show a fair semblance of title or interest he
    can certainly file an application for impleadment."

          10. The learned counsel for the first respondent on the
    other hand submitted that the decision in Sumtibai is not be
8
    good law in view of an earlier decision of a three-Judge Bench
    decision of this Court in Kasturi v. lyyamperumal [2005 (6)
    SCC 733]. In Kasturi, this Court reiterated the position that
    necessary parties and proper parties can alone seek to be
C   impleaded as parties to a suit for specific performance. This
    Court held that necessary parties are those persons in whose
    absence no decree can be passed by the court or those
    persons against whom there is a right to some relief in respect
    of the controversy involved in the proceedings; and that proper
    parties are those whose presence before the court would be
D   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. Referring to suits for specific performance, this Court
    held that the following persons are to be considered as
E   necessary parties: (i) the parties to the contract which is sought
    to be enforced or their legal representatives; (ii) a transferee
    of the property which is the subject matter of the contract. This
    Court also explained that a person who has a direct interest in
    the subject matter of the suit for specific performance of an
F   agreement of sale may be impleaded as a proper party, on his
    application under Order 1 Rule 10 CPC. This Court concluded
    that a purchaser of the suit property subsequent to the suit
    agreement would be a necessary party as he would be affected
    if he had purchased it with or without notice of the contract, but
G   a person who claims a title adverse to that of the defendant-
    vendor will not be a necessary party. The first respondent
    contended that Kasturi held that a person claiming a title
    adverse to the title of defendant-vendor, could not be
    impleaded, but effect of Sumtibaiwould be that such a person
H
MUMBAI INTERNATIONAL AIRPORT PVT. LTD. v. REGENCY 803
CONVENTION CENTRE & HOTELS PVT. LTD. [RV RAVEENDRAN, J.)

could be impleaded; and that therefore, the decision in Sumtibai       A
is contrary to the larger bench decision in Kasturi.

      11. On a careful consideration, we find that there is no
conflict between the two decisions. The two decisions were
dealing with different situations requiring application of different   8
facets of sub-rule (2) of Rule 10 of Order 1. This is made clear
in Sumtibai itself. It was observed that every judgment must be
governed and qualified by the particular facts of the case in
which such expressions are to be found; that a little difference
in facts or additional facts may make a lot of difference in the       C
precedential value of a decision and that even a single
significant detail may alter the entire aspect; that there is always
peril in treating the words of a judgment as though they were
words in a legislative enactment, and it is to be remembered
 that judicial utterances are made in the setting of the facts of a
 particular case. The decisions in Ramesh Hirachand                    D
 Kundanmal v. Municipal Corporation of Greater Bombay
 [1992 (2) SCC 524] and Anil Kumar Singh v. Shivnath Mishra
 (1995 (3) sec 147] also explain in what circumstances persons
 may be added as parties.
                                                           ..          E
     12. Let us consider the scope and ambit of Order I of Rule
10(2) CPC regarding striking out or adding parties. The said
sub-rule is not about the right of a non-party to be impleaded
as a party, but about the judicial discretion of the court to strike
out or add parties at any stage of a proceeding. The discretion        F
under the sub-rule can be exercised either suo moto or on the
application of the plaintiff or the defendant, or on an application
of a person who is not a party to the suit. The court can strike
out any party who is improperly joined. The court can add
anyone as a plaintiff or as a defendant if it finds that he is a       G
necessary party or proper party. Such deletion or addition can
be without any conditions or subject to such terms as the court
deems fit to impose. In exercising its judicial discretion under
Order 1 Rule 10(2) of the Code, the court will of course act
according to reason and fair play and not according to whims
and caprice. This Court in Ramji Dayawala & Sons (P) Ltd.              H
    804     SUPREME COURT REPORTS                  [2010) 7 S.C.R.


A vs. Invest Import - 1981 (1) SCC 80, reiterated the classic
  definition of 'discretion' by Lord Mansfield in R. vs. Wilkes -
  1770 (98) ER 327, that 'discretion' when applied to courts of
  justice, means sound discretion guided by law. It must be
  governed by rule, not by humour; it must not be arbitrary, vague,
B and fanciful, 'but legal and regular'. We may now give some
  illustrations regarding exercise of discretion under the said Sub-
  Rule.

        12.1) If a plaintiff makes an application for impleading a
   person as a defendant on the ground that he is a necessary
C party, the court may implead him having regard to the provisions
   of Rules 9 and 10(2) of Order I. If the claim against such a
   person is barred by limitation, it may refuse to add him as a
   party and even dismiss the suit for non-joinder of a necessary
   party.
D
        12.2) If the owner of a tenanted property enters into an
  ·agreement for sale of such property without physical
   possession, in a suit for specific performance by the purchaser,
   the tenant would not be a necessary party. But if the suit for
E specific performance is filed with an additional. prayer for
   delivery of physical possession from the tenant in possession,
   then the tenant will be a necessary party in so far as the prayer
   for actual possession.

       12.3) If a person makes an application for being impleaded
F contending that he is a necessary party, and if the court finds
  that he is a necessary party, it can implead him. If the plaintiff
  opposes such impleadment, then instead of impleading such
  a party, who is found to be a necessary party, the court may
  proceed to dismiss the suit by holding that the applicant was a
G necessary party and in his absence the plaintiff was not entitled
  to any relief in the suit.
       12.4) If an application is made by a plaintiff for impleading
  someone as a proper party, subject to limitation, bonfides etc.,
H the court will normally implead him, if he is found to be a proper
MUMBAI INTERNATIONAL AIRPORT PVT. LTD. v. REGENCY 805
CONVENTION CENTRE & HOTELS PVT: LTD. [RV RAVEENDRAN, J.]

  party. On the other hand, if a non-party makes an application A
 seeking impleadment as a proper party and 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, B
  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     c
  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
                                                                         0
  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 E
   the vendor-defendant 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 F
   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. In other words, the court has the
   discretion to either to allow or reject an application of a person G
   claiming to be a proper party, deper:iding 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.
      13. If the principles relating to impleadment, are kept in
                                                                        H
    806      SUPREME COURT REPORTS                   (2010] 7 S.C.R.


A   view, then the purported divergence in the two decisions will
    be found to be non-existent. The observations in Kasturi and
    Sumtibai are with reference to the facts and circumstances of
    the respective case. In Kasturi, this Court held that in suits for
    specific performance, only the parties to the contract or any
8   legal representative of a party to the contract, or a transferee
    from a party to the contract are necessary parties. In Sumtibai,
    this Court held that a person having semblance of a title can
    be considered as a proper party. Sumtibai did not lay down
    any proposition that anyone claiming to have any semblance
C   of title is a necessary party. Nor did Kasturi lay down that no
    one, other than the parties to the contract and their legal
    representatives/transferees, can be impleaded even as a
    proper party.
          14. On a careful examination of the facts of this case, we
o   find that the appellant is neither a necessary party nor a proper
    party. As noticed above, the appellant is neither a purchaser
    nor the lessee of the suit property and has no right, title or
    interest therein. First respondent - plaintiff in the suit has not
    sought any relief against the appellant. The presence of the
E   appellant is not necessary for passing an effective decree in
    the suit for specific performance. Nor is its presence necessary
    for complete and effective adjudication of the matters in issue
    in the suit for specific performance filed by the first respondent-
    plaintiff against AAI. A person who expects to get a lease from
    the defendant in a suit for specific performance in the event of
F
    the suit being dismissed, cannot be said to be a person having
    some semblance of title, in the property in dispute.
         15. Learned counsel for the appellants contended that in
    view of section 12A of the Act when AAI granted a lease of the
G   premises of an airport, to carry out any of its functions
    enumerated in section 12 of the said Act, the lessee who has
    been so assigned any function of AAI, shall have the powers
    of AAI, necessary for the performance of such functions in
    terms of the lease. Learned counsel for the appellant submitted
H   that in view of this provision, it should be deemed that the
MUMBAI INTERNATIONAL AIRPORT PVT. LTD. v. REGENCY 807
CONVENTION CENTRE & HOTELS PVT. LTD. [RV RAVEENDRAN, J.)

appellant has stepped into the shoes of AAI so far as the Airport   A
premises are concerned. This contention has no merit. The
appellant as lessee may certainly have the powers of AAI
necessary for performance of the functions that have been
assigned to them. What has been assigned is the function of
operation, management and development agreement with                B
reference to the area that been demised. Obviously the
appellant as lessee of the Airport cannot step into the shoes
of AAI for performance of any functions with reference to an
area which has not been demised or leased to it.
      16. Learned counsel for the appellant contended that C
Mumbai airport being one of the premier airports in India with
a very high and ever increasing passenger traffic, needs to
modernise and develop every inch of the airport land; that the
suit land was a part of the airport land and that for .the pendency
of first respondent's suit within an interim order, AAI would have D
included the suit land also in the lease in its favour. It was
submitted that therefore a note was made in the lease that the
lanp measuring 31000 sq.m. was not being made a part of the
lease but may become part of the demised premises subject
to the court verdict. This does not in any way help the appellant E
to claim a right to be impleaded. If the interim order in the suit
filed by the first respondent came in the way of granting the
lease of the suit land, it is clear that the suit land was not leased
to appellant. The fact that if AAI succeeded in the suit, the suit
land may also be leased to the appellant is not sufficient to hold
                                                                      F
that the appellant has any right, interest or a semblance of right
or interest in the suit property. When appellant is neither claiming
any right or remedy against the first respondent and when first
respondent is not claiming any right or remedy against the
appellant, in a suit for specific performance by the first G
respondent against AAI, the appellant cannot be a party. The
allegation that the land is crucial for a premier airport or in
public interest, are not relevant to the issue.
        17. In the result, the appeal is dismissed.

 N.J.                                          Appeal dismissed.     H