Rasiklal Shankerlal Soni v. Natverlal Shankerlal Upadhyaya And Others Opponents.

ORDER

1. This civil revision application raises an interesting question about the joinder of parties in a suit for specific performance, in which only relief which is claimed is that the original defendant to the suit should execute a document in plaintiff's favour or the same should be executed through the Court. The dispute between the Parties is in respect of the house bearing Panchayat No. 99 situated in village Kathlal. The petitioner, who is the original plaintiff, filed Regular Civil Suit No. 85 of 1971in the Court of the Civil judge, Junior Division, Kapadvanj, alleging that opponent No. 1original defendant No. 1 had mortgaged the suit house to him by a registered document dated October 9,1967 for the amount of Rs. 1,500. On or about April 8, 1969 a second mortgage for Rs. 2,000 was created by the said defendant by a registered document. Defendant No. 1 . was in need of money and he had taken in all Rs. 4051-25 P. as loan from ,him. Defendant No. 1 then entered into an agreement with the petitioner to sell the suit property on September 29, 1970. and this agreement is produced in the suit at Ex. 49. By a notice dated January 23, 1971 the. petitioner called upon defendant No. 1 to remain present at 11-00a.m. on February 6, 1971 in the office of theSub-Registrar of documents at Kapadvanj in order to get executed and registered the deed of sale in pursuance of the agreement of sale entered into on September 29, 1970. Defendant No. 1 did not remain present, On these allegations the plaintiff filed the aforesaid suit for specific performance, of the agreement. Defendant No. 1 filed written statement and the main pleas raised by him are that he had not executed any agreement of sale and that he had not received any amount as loan from the Plaintiff. On these pleadings the learned trial Judge raised the following issues:

"l. Whether the plaintiff -proves that the defendant contracted to sell suit house to him?

2. Whether the defendant proves that he agreed to mortgage suit house by way of conditional sale?

3. Whether the defendant proves that this court has no jurisdiction to hear this suit?

4. Whether the court has jurisdiction?

5. Whether this court has pecuniary jurisdiction?

6. Whether the suit in its present form is maintainable?

7. Whether the defendant -proves that the document, dated 8-4-1969 is without consideration?

8. Whether the defendant proves that the Vasul of Rs. BOO (is) as contained in Para. ~6 of the written statement Ex. 10T, The hearing of the suit commenced on or about September 7 1972 and the plaintiff was examined as'.a witness. The examination of the plaintiff was over on November 24, 1972. The last witness on behalf of the plaintiff was examined on January 6, 19,73. Defendant No. 1 was examined on February 1, 1973. His witness was examined on February 3, 1973. At this stage opponent No. 2 and opponent No. 3 filed applications Exs. 57 and 70 to join them -as parties to the suit on theground that they are sisters of defen dant No. 1, that their father Shankerlal Anoprani executed a registered will dated April 17, 1947 giving the properties including the suit property bsolutely to their brother Batubhai, . that their father died on February 10, 19,5,6, that their brother Batubhai died on July 6,1957, that their mother died on May 11, 1967 and according to the provisions of the Hindu Law they are entitled to inherit the suit property. The claim of opponent,s Nos. 2 and 3 was that they had direct interest in the property and defendant No. 1 had no power to execute the agreement of sale in respect of the entire property, that the agreement of sale was not binding on them and if they are not joined as parties to the suit they wouldbe seriously prejudiced. The learned trial Judge came to the conclusion that the sisters had direct interest in the property and, therefore, he allowed them to be joined as parties to the suit. It is this order which the petitioner challenges in this revision application.

2. Now the -provisions relating to adding of parties are to be found in subrule (2) of Rule IG of Order 1 of the Civil Procedure Code, which provide that 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 defendant, or whose presence before the Court may be necessary in order to enable the Court efectually and acompletely to adjedicate upon and settle all the questions involved in the suit, be added. Under these provisions a person may be added as a party to the suit, be added. Under these provisions a person may be added as a party to the suit in o cases only, namely, (1) when he ought to have been joined and is not joined that is whenever he is a necessary party and (2) when without his presence the suit cannot be completely adjudicated. There is no jurisdiction to add a party in any other case merely because that would save a third person the expense and botheration of a separate suit for seeking adjudication of a collateral matter, which was not directly and substantively in issue in the suit into which he seeks inclusion. The general rule is that the plaintiff is the master of his suit. He is dominus lit is. He cannot be compelled to fight and against whom he does not claim any relief. It is discretionary to grant a relief under Order 1, Rule 10 (2) of the Civil Procedure Code. In exercising the discretion the Court will invariably take into account the wishes of the plaintiff before adding a third person as a defendant to his suit. Only in exceptional cases, where the Court finds that the addition of the new defendant is absolutely necessary to enable it to adjudicate, effectively and, completely the matter in controversy between the parties, will it add a person as a defendant without the consent of the plaintiff. Vide Banarsi Dass Durga Prasad v. Panna Lai Ram Richhpal Oswal, AIR 1969 Punj 57; Jivanlal Damodardas Wani v. Narayan Ukha Sali,, AIR 1972 Bom 148 and the decision of my brother J. M. Sheth J. in Civil Revn . Appln. No. 514 of 1972 decided on 9-4-1974 (Gu.1.).

3. Now the questibn whether a person should be added as a party to the suit or not depends on the nature of the suit and the allegations made in the pleadings. In the present case, we are concerned with the suit for specific performance. The material allegations in the plaint are that defendant No. 1 had executed an agreement of sale in favour of the plaintiff and that defendant No. 1 had received full consideration for the said transaction. On the basis of these allegations the only relief which is claimed is that defendant No. 1 should execute a document of sale in plaintiff's favour or the same should be got executed through the Court. The main issue is to be decided in the suit is whether an agreement had been executed by defendant No. 1. The agreement for sale constitutes the basis of the, plaintiff's right to the relief which he claims and is also the basis of the suit. The contract between the plaintiff and defendant No. 1 regulates the rights or liability of the parties. The necessary party in a suit for specific performance of contract for sale are parties to the contract or if they are dead their legal representatives as also a person who purchased the property from a vendor after the contract. Where a person sues for specific performance of an agreement of sale impleading the exe~cutant of the agreement as a party, there is no necessity to determineithe question of vendor's title. The fact that the title! which the purchaser may acquire might be defeasible, by a third party as for example, by the persons claiming right to the property under Hindu law, is no ground for refusing specific performance, if the purchaser is willing to take such title as the vendor has. Vide C. V. Muni Samappa v. Kolala Gurunan.jappa, AIR 1950 Mad 90; and N. T. Palanisamv Chettiar v. Komara Chettiar, AIR 1,950 Mad al. The main question involved in the present suit, is with respect to the execution of the agreement of sale. The question of title of defendant No. 1 is not at all in issue. There is no necessity to determine the vendor's title. The,present opponents Nos. 2 and 3 cannot be said to be necessary parties for adjudicating the, questions in volved in the suit. An order for addition, as parties cannot be made merely to avoid multiplicity of suit. The ipresent suit is a simple suit for specific perform ance of an agreement. No relief is claim ed against opponents ' Nos. 2 and 3. There is no claim for ipossession of the suit pro perty. The suit is merely for the enforce ment of the agreement of sale between the plaintiff and defendant No. 1. It is thus clear that opponents Nos. 2 and 3 cannot claim to be joined as parties to the plaintiff's suit. On this point I am supported by the decisions of the Madras High Court in C. V. Muni SamaPPa v. Kolala Gurunanjappa -and N. T. Palani? samy Chettiar v. Komara Chettiar (supra). A simple suit for specific performance on agreement of sale cannot be allowed to be converted into a suit for title.

4. It was contended on behalf of the opponents that in the present case opponents Nos. 2 and 3 had direct interest in the property, that they claim adversely to the vendor, and that any decree granted to the plaintiff would cut their legal rights. They have direct interest in the subject-matter of the suit and hence their presence is necessary to enable the Court to effectually advacate: upon all the questions involved in the suit. The plaintiff has filed the suit in order to complete his title and, therefore, the question which is involved in the suit is one of title. Opponents Nos. 2 and 3 claim title in the suit Property -and in their absence the, question involved in the case cannot be completely adjudicated upon by the Court. Reliance was sought to be placed on the decision in Shivshankarappa Mahadevappa v. Shivappa Parappa, AIR 1943 Bom 27. In that case the suit was for specific performance of an agreement of sale and a relief for possession was also sought against the original defendant. Defendants Nos. 3 to 20 who were in actual possession of the suit property filed an application to join them as parties and the question that arose was whether they should be added as parties to the suit. While considering the provisions of Order 1, Rule. 10 (2) of the Civil Procedure Code, the Court observed that the general rule is that in a suit for specific performance of a con-tract, only parties to the contract are necessary par ties. This general rule is subject to certain exceptions. For instance, strangers are made parties as an exception to the rule in cases of novatio; and in cases of an interest arising under a prior contract; and in cases where it is desirable to avoid multiplicity of suits. In a suit for specific performance in respect of -a contract of sale a person who claims the property in the suit adversely to vendor and who are in possession of the property could be joined as parties as their possession is likely to'be affected. Now it is very clear that in the case~ before the, Bombay High Court the suit was not only for specific performance of an agreement of sale but was, also for possession of the suit property. As a result of this relief for possession, defendants Nos. 3 to 20 who were in possession of the -property were likely to be directly affected. In light of these facts it was held that the Court made the aforesaid observations. Reliance was -also sought to be placed on the decision in Bai Devkabai v. Shah Shamji Mu1ji, AIR 1971 Guj 256, wherein the suit was filed for specific performance of the agreement to sell as well as the partition of the properties. The case of the plaintiff was that because of the partition effected between the members of the joint family, the suit property had gone to the share of his vendor and, therefore, he intended to obtain a sale deed from him. He had also joined other members of the joint family as defendants Nos. 2 to 6 as it was claimed by them that the, previous partition was not acted upon and, therefore they had proprietary interest in the property. Defendants Nos. 2 to 6 also claimed adverse possession. At the stage of final hearing of the suit, the -plaintiff did not press for the relief of possession. Both the lower Courts had held that defendants Nos. 2 to 6 were necessary Parties to the suit. In the second appeal before the High Court a contention was raised on behalf of defendants Nos. 2 to 6 that they were not necessary -parties. The learned judge having regard, to the special facts of the case came to the conclusion, following the decision of the Bombay High Court in Mahadevappa Parakanhatti v. Shivappa Parappa Kupati (supra), that the persons who according to the plaintiff claimed proprietary interest were necessary parties to the suit. Now it is to be noted that the plaintiff himself had joined certain persons who claimed proprietary interest as defendants to the suit. It is the choice of the plaintiff as to who should be the defendants in his suit. If he joins the defendants who are not necessary or proper parties to the suit, he does so at his own risk. In that case the plaintiff's suit was not only for specific performance but was for partition and possessi'on and it is for this reason that the Court came to the conclusion that the-members who claimed proprietary interest in the property were necessary parties in a suit for speific performance. The aforesaid two de cisions are quite distinguishable. In the present case the only relief which the plaintiff claims is against defendant No. 1 and the relief claimed by him is that defendant No. 1 should be ordered to execute a document of sale in pursuance of the agreement of sale or the same should be got executed through Court.

No relief for possession of the suit pro perty is, claimed. No relief of any sort is ,claimed against opponents Nos. 2 and 3. No issue of title -of defendant No. I arises in the suit. In.such a suit for specific per formance opponents Nos. 2 and 3 cannot be said to be necessary parties nor their presence is necessary to adjudicate upon any of the issues between the parties.

5. It was contended on behalf of the opponents that the words "all questions involved in the suit" must be widely interpreted and must not only mean the questions involved in the suit as originally framed between the parties to the suit but the object of the provision is that where several disputes arise out of one subject-n-Latter all the parties interested in such disputes should be brought before the Court and all questions in con" troversy between them should be completely settled in the action. For this proposition reliance was placed on the decisions in Vanjiappa Goundan v. Anriama-, lai Chettiar, AIR 1940 Mad 69, and Bindeshwari Chaudhary v. Dr. Sheo Nandan Upadhya, AIR 1973 Pat 347. Now on this point the decisions of the Court are not unanimous. The decision in Banbihari v. Bhojnath Singh, ILR 59 Cal 329 = (AIR 1932 Cal 44,8), takes a contrary view and the view taken is that the aforesaid words must only mean that the questions which ,are involved in the suit as originally framed between the parties to the suit should be only considered for adding par, ties to the suit. The Supreme Court case in Razia Begum v. Sahebzadi Anwar Be-, gum, AIR 1958 SC 886-throws much light on the point. But it is not necessary for me to decide this question because assuming that the words have wider connotation the auestion is whether on the facts of this case, the presence of opponents Nos. 2 and 3 is essential to completely adjudicate the dispute in the suit. Opponents Nos. 2 and 3 cannot be said. to be necessary parties nor their presence is essential to completely adjudicate upon the controversy in the suit because the suit is a simple suit for specific performance of an agreement of sale- an agreement of sale passed by defendant No. 1 in favour of the plaintiff. In the instant case no question of possession is involved and no relief against -opponents Nos. 2 and 3 has been asked for.

6. It was then urged that the relief for specific performance is in the discretion of the Court and the Court will not grant a decree to a party if such a decree is not likely to be effective. If defendant No. 1 is not the exclusive own r of the suit Property and it is ultimately found that opponents Nos. 2 and 3 have proprietary interest therein, the decree for -conveying the entire suit property would be rendered in fructuous. It cannot be gainsaid that granting -a relief for specific performance is in the discretion of the Court. Discretion has to be judicially exercised. judicial discretion to add a party to the plaintiff's suit for specific performance has to be exercised keeping in mind the provisions of Order 1, Rule 10 (2) of the Civil Procedure Code. :In the present suit no relief is ,claimed against opponents Nos. 2 and 3. No relief for possession is asked for. It is a simple suit for the enforcement of an -agreement which is legal and valid. The parties to the agreement are the plaintiff and defendant No. 1. The plaintiff is willing to take the risk and he can get whatever title his vendor has. The plaintiff is willing to take such title which his vendor has. A simple suit for specific enforcement of an agreement between the plaintiff and defendant No. 1 cannot be, permitted to be converted into a suit for establishing title and that too against the wish of the plaintiff. In view of the peculiar facts of this case, it cannot be said that opponents Nos. 2 and 3 are necessary parties to the suit or their presence is necessary to adjudicate upon all the questions involved in the case.

7. There is one more point to be noticed and it is this. Opponents Nos. 2 and 3 are the sisters of defendant No I Prior to the agreement of sale defendent No. 1 had executed two mortgages in respect of the suit house. These mortgage transactions are evidenced by registered deeds. One of the mortgage is of the year 1969. Exhibit 39 is the letter on the record and on the basis of the letter the learned trial Judge has come to the conclusion that opponents 'Nos. 2 and 3 were aware of the transactions between defendant No. I and the plaintiff at least from September 1967. that is, prior . to one mortgage transaction. Opponents Nos. 2 and 3 are not strangers to the defendant No. 1 as they are his sisters. The record ,of the case also shows that the plaintiff is in possession of a part of the property. All these circumstances clearly indicate that opponents Nos. 2 and 3 had full knowledge of the transactions between the plaintiff and defendant No. 1 at least since February 4, 1,967. No attempt has been made by opponents Nos. 2 and 3 to challenge the mortgage transactions entered into between the plaintiff and defendant No. 1. It is only at the fag-end of the litigation that they have made this application to be added as parties to the suit claiming proprietary interest in the suit property. This application is made after a long delay and from the said delay want of bona fide on the part of opponents Nos. 2 and 3 can easily be inferred. It is in the discretion of the Court to order addition of the parties and I am of the opinion that such discretion cannot be exercised in favour of opponents Nos. 2 and 3 who have come to the Court with an ulterior motive.

8. The result is that the order of the learned trial Judge passed on Exs. 57 and 70 that opponents Nos. 2 and 3 are necessary parties to the suit cannot be sustained as the same is without jurisdiction. The said order is set aside and the applications Exs. 57 and 70 made by opponents Nos. 2 and 3 to join them as parties to the suit are rejected. There shall be no order as to costs.

9. Petition allowed.