Delhi High Court
Maryam Bee vs Shuibham Jain And Ors on 26 August, 2025
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 06.08.2025
Judgment pronounced on: 26.08.2025
+ FAO(OS) (COMM) 199/2024, CM APPL. 51461/2024 & CM
APPL. 48082/2025
MARYAM BEE .....Appellant
Through: Mr. Jai Sahai Endlaw and Ms.
Sagarika Kaul, Advs.
versus
SHUIBHAM JAIN AND ORS .....Respondents
Through: Mr. Hemant Kumar and Mr.
Venkatesh Joshi, Advs. for R-1
to R-3.
CORAM:
HON'BLE MR. JUSTICE ANIL KSHETARPAL
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR
JUDGMENT
ANIL KSHETARPAL, J.
1. Through this Appeal under Order XLIII Rule 1 of the Code of
Civil Procedure, 1908 [hereinafter referred to as “CPC“] read with
Section 10 of the Delhi High Court Act, 1966 [hereinafter referred to
as “DHC Act”], the Appellant assails the correctness of the Order
dated 07.05.2024 passed by the learned Single Judge in I.A. No.
23592/2023 in C.S. (Comm) No. 590/2023 titled Shuibham Jain and
Ors. vs. Maryam Bee, wherein the application, under Order I, Rule 10
of the CPC, 1908, filed by Respondent No.4, was allowed and he was
impleaded in the underlying suit as a party and arrayed as Defendant
No.2.
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NARAYAN
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FACTUAL MATRIX
2. The brief facts leading to the present Appeal are that
Respondent Nos.1 to 3 (Plaintiffs before the Court of first instance)
filed a suit seeking, inter alia, specific performance of an Agreement
to Sell dated 27.12.2022 [hereinafter referred to as “ATS”], allegedly
executed between the Appellant and Respondent Nos. 1 to 3, for the
sale of the property admeasuring 82.5 Sq. Yards, bearing Municipal
No. 1806 (Mezzanine Floor to Second Floor with roof rights), Ward
No. 4, Chandni Chowk, Dariba Kalan, New Delhi, 110006 [hereinafter
referred to as “suit property”].
3. It is the case of the Original Plaintiffs that the Appellant and
Respondent Nos. 1 to 3 entered into the ATS for sale of suit property
for a total consideration of Rs.7,00,00,000/- (Rupees Seven Crores
Only); however, despite having made partial payment, the Appellant
has failed to have the sale deed executed in their favour, which
compelled Respondent Nos. 1 to 3 to file a suit against the Appellant.
The Appellant contended that the total sale consideration was Rs.
9,00,00,000/- (Rupees Nine Crores Only), as another ATS of Rs.
2,00,00,000/- (Rupees Two Crores Only) was executed on 27.12.2022,
but since Respondents 1 to 3 failed to pay, the Appellant could not
execute the sale deed.
4. Pending the suit, the Applicant/Respondent No.4 filed an
application, being I.A. 23592/2023, under Order I Rule 10 of the CPC,
seeking to be impleaded as a party to the said suit while claiming to be
a co-owner in the suit property.
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5. Respondent No.4 is the brother-in-law of the Appellant. The
Appellant has claimed to be the owner of the suit property on the
strength of two Gift Deeds executed on 23.08.1981 by Late Smt.
Zubeda Khatoon and Late Sh. Sheikh Abdul Sattar Sahib (mother-in-
law and father-in-law of the Appellant, respectively), whereas the
Applicant/Respondent No.4 claims that he is a co-sharer of the suit
property to the extent of 50% along with his brother Abdul Malik
(husband of the Appellant).
6. The learned Single Judge of this Court allowed the said
application, observing that the proposed applicant/Respondent No.4
herein would have some interest in the said property, and any order
passed without Respondent No.4‟s presence could also lead to further
multiplicity and conflicting rulings. Being aggrieved by this portion of
the Impugned Order, the Appellant has filed the present Appeal.
CONTENTIONS OF THE PARTIES
7. Learned counsel for the Appellant has advanced the following
submissions:
7.1 A third party or stranger to the Contract cannot be added in a
suit for specific performance merely to avoid multiplicity of suits.
7.2 Impleadment of the Respondent No.4 as a party to the suit for
specific performance of an ATS enlarges the scope of the suit and
converts it into a suit for title and possession, which is impermissible
in law.
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7.3 Respondent Nos. 1 to 3, being dominus litis, have opposed the
application for impleadment and supported the claim of the Appellant
being the sole and absolute owner of the suit property in the present
Appeal.
8. Per Contra, the learned counsel for Respondent No.4, while
vehemently opposing the Appeal, has contended that:
8.1 The Impugned Order is not appealable under Order XLIII, Rule
1 of CPC. Further, Section 10 of the DHC Act, cannot be invoked, in
view of Section 13(2) of the Commercial Courts Act, 2015
[hereinafter referred to as „CCA‟]. Reliance has been placed on
Kandla Export Corpn. v. OCI Corpn.1., M.V. Polaris Galaxy v.
Banque Cantonale De Geneve 2, Trex India Pvt. Ltd. vs. CDE Asia
Limited3, and Alka Traders v. Cosco India Ltd.4
8.2 Impleadment in a suit for specific performance depends on the
particular facts and circumstances of each case, and it cannot be laid
down as a rigid rule that no one can ever be impleaded in such suits.
Reliance has been placed on Sumtibai vs. Paras Finance Co.5 and
Rajesh Kumar Arora & Ors. vs. Smt. Shila & Ors.6.
8.3 The Impugned Order dated 07.05.2024 against Respondent
Nos.1 to 3/Plaintiffs has attained finality to the extent of impleadment,
as they had only challenged the direction concerning deposit in
1
(2018) 14 SCC 715
2
(2024) 5 SCC 750
3
2023 SCC OnLine Del 2388
4
2020 SCC OnLine Del 3694
5
(2007) 10 SCC 82
6
2016 SCC OnLine Del 1277
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FAO(OS)(COMM.) 167/2024 against the Order impugned herein,
which was dismissed on 06.08.2024.
ANALYSIS
9. This Court has heard the learned counsels representing the
parties at length and, with their able assistance, has perused the
documents produced thereof in support of their submissions.
10. At the outset, the learned counsel representing Respondent No.4
raised the preliminary objection with respect to the maintainability of
the present Appeal before this Court, contending that the same, being
beyond the purview of Order XLIII, Rule 1 of the CPC, is not
maintainable under Section 13 of the CCA and therefore, liable to be
dismissed. We shall now examine the issues considered in the
judgments relied upon by the learned counsel for the Appellant.
11. In Kandla Export (supra), the issue raised by the Supreme
Court was whether an appeal, not maintainable under Section 50 of
the Arbitration and Conciliation Act, 1996, is nonetheless
maintainable under Section 13(1) of the Commercial Courts,
Commercial Division and Commercial Appellate Division of High
Courts Act, 2015. The Supreme Court held that no appeal is
maintainable in arbitration matters governed by the 1996 Act, other
than appeals provided under Section 50 or 37 of the Arbitration and
Conciliation Act, 1996.
12. Learned counsel has further relied on the Judgment of M.V.
Polaris Galaxy (supra). The question before the Supreme Court was
whether an appeal lies to the Commercial Appellate Division of the
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High Court from an order of the Commercial Division (Single Bench)
of the same High Court for the addition of a party in an admiralty suit
governed by the Admiralty (Jurisdiction and Settlement of Maritime
Claims) Act, 2017. In Trex India Private Limited (supra), dismissal of
an application under Order VII, Rules 10 and 11 of the CPC in a suit
for the grant of a permanent injunction was held not appealable under
Order XLIII Rule 1 of the CPC and Section 13 of the CCA. Further, in
Alka Traders (supra), the Court considered the maintainability of an
appeal against the Order of the Commercial Court dismissing an
application under Order IX Rule 7 of the CPC.
13. It is evident that none of the aforementioned judgments have
any application to the facts of or issue for consideration in the present
case and are, therefore, distinguishable. The question arising for
determination in the present Appeal pertains to the impleadment of a
third party in a suit for specific performance, and the principles laid
down in the cited judgements are not applicable to these proceedings.
14. In this regard, a reference may be made to the Judgment of the
Co-ordinate Bench in Gurmauj Saran Baluja vs. Mrs. Joyce C. Salim
& Ors.7, wherein the Order allowing the party to be impleaded as a
Defendant was declared a „Judgment‟ within the meaning of Section
10(1) of the DHC Act. The relevant portion of the judgment is
extracted hereinbelow for easy reference:
“9. Only the intervener Kaka Singh has appeared to oppose the
present appeal. He has raised a preliminary objection that the appeal
is not maintainable under S. 10 of the Delhi High Court Act 1966.
Sub-s. (1) of S. 10 which is relevant provides that where a single
Judge of the High Court of Delhi exercises ordinary original civil7
1988 SCC OnLine Del 295
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jurisdiction, an appeal shall lie from the judgement of the single Judge
to a Division Court of that High Court. The question that arises for
consideration is if the impugned order is a „judgment‟ so as to be
appealable. No advantage can be drawn from the provisions of Order
43 of the Code, which provides for appeals from various orders, an
order under Order 1, Rule 10 of he Code not being one of the
appealable orders. It has now been authoritatively held by the
Supreme Court that as far as S. 10 of the Delhi High Court Act 1966
is concerned. Order 43 of the Code is not exhaustive. Though appeals
from Orders mentioned in Order 43 would be maintainable, the
reverse is not true. In Shah Babulal Khimji v. Jayaben D.
Kania ((1981) 4 SCC 8 : AIR 1981 SC 1786) (1), the Supreme Court
was examining the scope, ambit and meaning of the word „Judgment‟
appearing in clause 15 of the Letters Patent of the Bombay High
Court and the corresponding clauses in the Letters Patent of other
High Courts. The court observed that the significance of the word
„judgment‟ assumed a special importance in those High Courts which
had ordinary civil jurisdiction depending on the valuation of the suit
or the action and that those High Courts were Calcutta, Bombay,
Madras as also Delhi and Jammu & Kashmir. The principles laid
down by the Supreme Court can be gathered from paras 106 and 115
of the judgment and these are as under:–
“106. Thus, the only point which emerges from this decision is
that whenever a trial Judge decides a controversy which affects
valuable rights of one of the parties, it must be treated to be a
judgement within the meaning of the Letters Patent.”
“115. Thus, in other words every interlocutory order cannot be
regarded as a judgment but only those orders would be
judgements which decide matters of moment or affect vital and
valuable rights of the parties and which work serious injustice
to the party concerned. Similarly, orders passed by the trial
Judge deciding question of admissibility or relevancy of a
document also cannot be treated as judgments because the
grievance on this score can be corrected by the appellate court
in appeal against the final judgement.”
In Jugal Kishore Paliwal v. S. Sat Jit Singh [(1984) 1 SCC 358](2),
the question before the Supreme Court was if an order allowing
amendment of the written statement was appealable under S. 10 of the
Delhi High Court Act 1966. The Division Bench of this court had held
that the appeal was not maintainable. The Supreme Court held that
the High Court was wrong in refusing to go into the merits of the case
on the ground that the appeal was not maintainable. It referred to its
decision in Shah Babulal Khimji‘s case (supra) wherein various
parameters and conditions had been laid down under which an appeal
could lie from a single Judge to the Division Bench. The Supreme
Court further observed as under:–
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“In the instant case as the amendment of the written statement
was sought at the time of framing issues and it vitally affects the
right of the parties and seeks to work some injustice to the
plantiff, it merits serious consideration by the appellate court on
the question whether or not amendment should be allowed. It
would certainly not be a purely interlocutory order against
which no appeal before the LPA bench would be maintainable”.
Reference may also be made to a Bench decision of this court
in Satish Chander Yadav v. Lt. Col Gaj Singh Yadav [FAO (OS)
No. 55/85, decided on 13-8-85(3)]. In this case an appeal was filed
before the Division Bench against an order of the single Judge
framing two issues described as preliminary issues. It was contended
that the appeal was not competent. The court, however, observed that
the order deciding to try the suit in a particular manner, after framing
two preliminary issues and postponing the settlement of other issues,
did amount to a judgment, and so it was appealable. In the present
case the effect of the impugned order is that it enlarges the scope of
the suit and directs the plaintiff to add a party against his wishes
resulting in filing and amended plaint containing consequential
amendments on the addition of a party. The addition of the party
would also amount to a de novo trial as far as the party added is
concerned. It cannot, therefore, be said that the impugned order is not
a judgment. It does affect vital and valuable right of the plaintiff and
decides matters of moment. The plaintiff has complained that the
order has worked serious injustice to him. We would, therefore, hold
that the order is a ‘judgment’ within the meaning of sub-s. (1) of S.
10 of the Delhi High Court Act, 1966 and is, therefore, appealable.”
(Emphasis supplied)
15. Consequently, even if not expressly enumerated under Order
XLIII of the CPC, the Appeal would nevertheless be maintainable.
Accordingly, the Impugned Order, having determined and affected the
substantive rights of the parties involved, is liable to be treated as a
judgment, and therefore, the present Appeal is maintainable under
Section 10 of the DHC Act.
16. Now turning to the merits, the Appellant has argued that a third
party to the contract cannot be impleaded in a suit for specific
performance.
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17. A plain reading of the Order I, Rule 10(2) of the CPC makes it
evident that the Court, at any stage of the proceedings, may either
upon or without the application of either party, remove the name of
any party improperly joined or the name of any person 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. The prerequisite of
impleading a third party, as enshrined in the Rule, makes it abundantly
clear that the issue that arose between the parties must only be
considered, and any such party that does not have nexus with those
issues are not to be impleaded.
18. It is a trite law that the scope of the suit for specific
performance is limited to determining the issue with regard to the
enforceability of the contract in question. The decision in the suit for
specific performance is not a judgment in rem but results in
adjudication of rights between the contracting parties.
19. The law stands settled by the Supreme Court in the Judgment of
Kasturi vs. Iyyamperumal & Ors8, wherein the Supreme Court
observed that a suit for specific performance is essentially contract-
centric, and the inclusion of third parties claiming an independent or
adverse title would convert a simple contract suit into one for title or
possession, thereby enlarging its scope beyond the contract. A third
party cannot be impleaded merely to ascertain who is in possession of
the contracted property or to prevent multiplicity of suits. Under Order
I Rule 10(2) CPC, only those parties may be added whose presence is
8
(2005) 6 SCC 733
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necessary for complete adjudication. The Supreme Court further laid
down two tests to determine a „necessary party‟: (i) there must be a
right to some relief against such party in respect of the controversies
involved in the proceedings; or (ii) no effective decree can be passed
in their absence. A „proper party‟ was explained to mean one whose
presence is required for effectively adjudicating the controversies in
the suit. The relevant portion of the judgement is set out as follows:
“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.
xxxx xxxx xxxx xxxx xxxx
15. As discussed hereinearlier, whether Respondents 1 and 4 to 11
were proper parties or not, the governing principle for deciding the
question would be that the presence of Respondents 1 and 4 to 11
before the court would be necessary to enable it effectually and
completely to adjudicate upon and settle all the questions involved in
the suit. As noted hereinearlier, in a suit for specific performance of a
contract for sale, the issue to be decided is the enforceability of the
contract entered into between the appellant and Respondents 2 and 3
and whether contract was executed by the appellant and Respondents
2 and 3 for sale of the contracted property, whether the plaintiffs were
ready and willing to perform their part of the contract and whether
the appellant is entitled to a decree for specific performance of a
contract for sale against Respondents 2 and 3. It is an admitted
position that Respondents 1 and 4 to 11 did not seek their addition in
the suit on the strength of the contract in respect of which the suit for
specific performance of the contract for sale has been filed.
Admittedly, they based their claim on independent title and possession
of the contracted property. It is, therefore, obvious as noted
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hereinearlier that in the event, Respondents 1 and 4 to 11 are added
or impleaded in the suit, the scope of the suit for specific performance
of the contract for sale shall be enlarged from the suit for specific
performance to a suit for title and possession which is not permissible
in law. In the case of Vijay Pratap v. Sambhu Saran Sinha [(1996) 10
SCC 53] this Court had taken the same view which is being taken by
us in this judgment as discussed above. This Court in that decision
clearly held that to decide the right, title and interest in the suit
property of the stranger to the contract is beyond the scope of the suit
for specific performance of the contract and the same cannot be
turned into a regular title suit. Therefore, in our view, a third party or
a stranger to the contract cannot be added so as to convert a suit of
one character into a suit of different character. As discussed above, in
the event any decree is passed against Respondents 2 and 3 and in
favour of the appellant for specific performance of the contract for
sale in respect of the contracted property, the decree that would be
passed in the said suit, obviously, cannot bind Respondents 1 and 4 to
11. It may also be observed that in the event, the appellant obtains a
decree for specific performance of the contracted property against
Respondents 2 and 3, then, the Court shall direct execution of deed of
sale in favour of the appellant in the event Respondents 2 and 3
refusing to execute the deed of sale and to obtain possession of the
contracted property he has to put the decree in execution. As noted
hereinearlier, since Respondents 1 and 4 to 11 were not parties in the
suit for specific performance of a contract for sale of the contracted
property, a decree passed in such a suit shall not bind them and in that
case, Respondents 1 and 4 to 11 would be at liberty either to obstruct
execution in order to protect their possession by taking recourse to the
relevant provisions of CPC, if they are available to them, or to file an
independent suit for declaration of title and possession against the
appellant or Respondent 3. On the other hand, if the decree is passed
in favour of the appellant and sale deed is executed, the stranger to
the contract being Respondents 1 and 4 to 11 have to be sued for
taking possession if they are in possession of the decretal property.”
(Emphasis Supplied)
20. The Supreme Court in Kasturi (supra) referred to two
authoritative precedents on the subject, namely, Anil Kumar Singh vs.
Shivnath Mishra9 and Vijay Pratap & Ors. vs. Sambhu Saran Sinha
& Ors.10. In Anil Kumar (supra), the Supreme Court considered two
vital issues, (a) whether the person, who was not a party to the
9
1995 (3) SCC 147
10
1996 (10) SCC 53
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contract, but claimed co-ownership by an independent decree, could
be impleaded as a necessary or proper party in a suit for specific
performance, and (b) whether the case attracted Order XXII Rule 10
CPC. Both issues were answered in the negative. The Supreme Court
had concluded that since the Respondent was not a party to the
agreement to sell, it could not be said that without his presence, the
dispute to specific performance could not be determined and therefore,
he was not a necessary party.
21. The Supreme Court in the Judgement of Vijay Pratap (supra)
held that if such petitioners are made parties to the suit, the dispute
would shift to one between them, thereby converting the suit for
specific performance into a regular title suit. The same position was
reiterated in the Judgement of Bharat Karsondas Thakkar vs. Kiran
Construction Company & Ors.11.
22. Learned counsel for Respondent No.4 has attempted to bring
the present case within an exception to the above-mentioned general
rule. He has relied upon the judgment passed in Sumtibai (supra) in
which Kasturi (supra) was distinguished in terms of the peculiar facts
and circumstances of the said case. The question before the Supreme
Court was whether the LRs of the Original Defendant, which came to
be impleaded, can file a written statement and adduce evidence in the
suit. In the present case, the registered sale deed by which the subject
property was purchased shows that the shop in dispute was sold in
favour of not only the Defendant but also his sons. Therefore, prima
facie, LRs of Defendant were found to have a fair semblance of title or
11
2008 (13) SCC 658
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interest and a right to take defence by way of filing a written
statement. The relevant paragraph of the Judgement is as follows:
“14. In view of the aforesaid decisions we are of the opinion
that Kasturi case [(2005) 6 SCC 733] is clearly distinguishable. In
our opinion it cannot be laid down as an absolute proposition that
whenever a suit for specific performance is filed by A against B, a
third party C can never be impleaded in that suit. In our opinion,
if C can show a fair semblance of title or interest he can certainly file
an application for impleadment. To take a contrary view would lead to
multiplicity of proceedings because then C will have to wait until a
decree is passed against B, and then file a suit for cancellation of the
decree on the ground that A had no title in the property in dispute.
Clearly, such a view cannot be countenanced.”
23. The next reliance is placed on the Division Bench
pronouncement of this Court titled Rajesh Kumar Arora (supra).
However, the said judgment would not form a ratio decidendi for the
present case for the following reasons:
i. In that case, the Appeal before the Coordinate Bench arose from
two applications: (a) an application under Order I Rule 10 filed by
the Appellants/Plaintiffs seeking deletion of two co-plaintiffs on the
basis of an MOU executed among them, which was dismissed by
the learned Single Judge; and (b) another application under Order I,
Rule 10 of the CPC filed by the proposed defendant seeking
impleadment, which was allowed by the learned Single Judge; andii. The Coordinate Bench, after examining the merits, allowed the
first application. However, with respect to the second application, it
dismissed the Appeal simpliciter without going into the merits of
the Appeal at all.
iii. Furthermore, in that case, there were already other suits pending
among the defendant(s) and the proposed defendant.
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24. Assuming, in the present case, the Respondent is able to prima
facie demonstrate a semblance of title and interest in the suit property,
we are of the considered opinion that he cannot satisfy the mandate of
Order I Rule 10 of the CPC. His impleadment is not necessary for
effectually and completely adjudicating upon the questions involved in
the suit; on the contrary, such impleadment would introduce collateral
issues and expand the scope of the contract. Moreover, it will be
contrary to the settled law laid down by the Hon‟ble Supreme Court in
Kasturi (supra) and Anil Kumar Singh (supra).
25. Under Order I Rule 10 of the CPC, only the „necessary‟ or
„proper‟ parties are required to be impleaded; however, the learned
Single Judge has not held that the Applicant/Respondent No.4 is either
a „necessary‟ or „proper‟ party. In a suit for specific performance of an
agreement to sell, the core issue before the Court is the enforceability
of the contract, if any. The reasoning adopted by the learned Single
Judge that Respondent No.4 has claimed co-ownership and that
refusal to implead would lead to multiplicity of litigation ought not to
have resulted in his addition as a party, particularly in the context of a
suit for specific performance. If Respondent No.4 is permitted to be
impleaded in the present case, the nature of the suit will be converted
and it may lead to a title suit between the Appellant and Respondent
No.4. While Respondent No.4 having some interest/right over the suit
property is contentious, it cannot be answered in the present suit in
question.
26. Learned counsel for the parties have not made any other
submissions.
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CONCLUSION
27. In light of the foregoing discussion, the Impugned Order passed
by the learned Single Judge allowing the application bearing I.A. No.
23592/2023 in CS(COMM) 590/2023 and thereby impleading
Respondent No. 4 as Defendant No. 2 cannot be sustained and is,
therefore, set aside.
28. The present Appeal is allowed with liberty to Respondent No. 4
to contest his claim before the Court of competent jurisdiction by way
of an independent suit. Accordingly, the Appeal, along with the
pending application, is disposed of.
ANIL KSHETARPAL, J.
HARISH VAIDYANATHAN SHANKAR, J.
AUGUST 26, 2025/sg/er
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