D.S Tewatia, J. (Oral) — The short question, in this revision petition from an order of the trial Court dismissing the application of the petitioner under Order 1 Rule 10 of the Civil Procedure Code (for short ‘the Code’), is that whether in a suit for specific performance by the purchaser against the Karta of a family the co-parcener is a necessary party to the suit or one without he being there, the questions arising in the suit for specific performance cannot be effectively or completely adjudicated upon.
2. The afore-mentioned question has to be answered in the light of the facts which can be stated thus. One Nand Kishdre Behl purchased a plot No. 82 located in Civil Lines, Ludhiana, on 14th October, 1944. He died in the year 1854 leaving behind five sons namely, Jagdish Lal, Kanti Kumar, Satish Kumar, Vijay Kumar and Baldev Krishan. Baldev Krishan, out of them separated his share from the Hindu Undivided family in question on Ist April, 1976. The memorandum of the partition dated 5th April, 1876 accorded to him inter alia 1/5th share in the said plot No. 82. Baldev Krishan by two separate agreements executed on 24th April, 1979 sold out his 1/5th share in the said plot to Aruna Kansal and her husband Satish Kumar for a total consideration of Rs. 30,000/-, each. He at that time received Rs. 4000/- each as earnest money. On 12th January, 1981, he executed another set of agreements under which he received the entire sale amount and delivered the possession to the plaintiff-vendees. Thereafter when he failed to execute the sale deeds, two separate suits for specific performance were launched against Baldev Krishan. On 14th June, 1983, Aman Behl son of Baldev Krishan filed application in each suit under Order 1 Rule 10 of the Code seeking to be impleaded as defendant thereto. These applications were dismissed by the trial Court. In one case, the revision has become time barred and therefore no revision has been filed. So it is only in the other suit No. 107 of 1983, which v/as filed by Aruna Kansal, that the revision petition challenging the order has been filed by Aman Behl in this Court.
3. Mr. R.S Mittal, Sr. Advocate has canvassed that the trial Court failed to exercise jurisdiction in not allowing the application and adding the petitioner as defendant to the suit. Sub-rule (2) of rule 10 of Order 1 of the Code, which is relevant to the controversy is in the following terms:
“(2) Court may strike out or add parties:—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, 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 adiudicata upon and settle all the questions involved in the suit, be added.”
4. The judicial consensus in regard to the power that Sub-rule (2) of rule 10 of Order 1 of the Code envisages with the Court is that the plaintiff being dominos Titus, the Court would not add a party to the suit against his wishes unless the person, wanting to be joined or the Court proposes to join suo motu is a person, who caught to have been there as a party to the suit i.e, the proposed party is a necessary party to the suit or his presence is necessary to enable the Court effectively and completely to adjudicate upon to settle all the questions involved in the suit.
5. The question that falls for Consideration therefore is as to whether in the present case the co-parcener in question is a necessary party or his presence is necessary to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit. Obviously as to whether a person who is seeking to be added as a party to the suit is a necessary party or not or whether his presence is necessary to enable the Court to effectively adjudicate upon and settle all the questions involved in the suit depend on the facts and circumstances of each case. In the present case, the facts that have to be kept in view are that the plaintiff had been put into possession of the property regarding which agreement of sale had been entered into. He already paid the entire sale price to the Karta of the co-parcenary family, i.e, the defendant. In a suit for specific performance, the court Has merely to decide as to whether the Karta had entered into an agreement of sale with the plaintiff and whether the sale deed could not be executed because of the default on the part of the defendant. The issues can be completetely and effectively adjudicated upon without the presence of the co-parceher before the Court. Nor, the presence of the co-parcener is necessary at the stage of the execution of the decree, because the decree, if obtained, by the plaintiff could be executed without the co-parcener being brought into picture at any stage, the possession being already with the plaintiff. On the decree being obtained by the plaintiff, the Karta alone is competent to satisfy the decree in question by executing the requisite deed of transfer of the property in question.
6. The counsel for the petitioner, however, has placed reliance on a Single Bench Judgment of this Court reported as Atul Sharma and another v. Gurinder Singh and others, 1985 PLJ 143. That was also a case in which the plaintiff had filed a suit for specific performance of the agreement of sale entered between him and Ram Sarup Mehar Chand and others. The co-parcener in that case moved an application to be impleaded as a party alleging that Ram Sarup was not competent to sell the property except for legal necessity or the benefit of the estate and that the specific performance of the agreement could not be ordered. The application was declined by the trail Court following the decision in V.D Seetarama Mudaliar v. Komara Chettiar and others, AIR 1950 Madras 91 and Banansi Dass Durga Prashad v. Panna Lal Ram Richhpal Oswal and others, AIR 1969 Pb. & Hr., 57. Goyal, J. disagreed with the decision of the learned Single Judge in Banarsi Dass's case (supra) as also judgement in Mudaliar's case (supra) as according to him those decisions ran counter to the ratio of the Supreme Court judgment reported as Balmukand v. Kamla Wati and others, AIR 1964 SC 1385 and in this regarded referred to the following observations of their Lordships “that the adult members would not have resisted the claim for specific performance if they were satisfied that the transaction was of benefit to the family. It was possible that he land which was intended to be sold had risen in value by the time the present suit was instituted and therefore the other members of the family were contesting the plaintiff's claim. Apart from that the adult members of the family were well within their rights in saying that no part of the family property could be parted with or agreed to be parted with by the Manager on the ground of alleged benefit to the family without consulting them. Hence there was no allegation of any such consultation. In these circumstances the courts below were right in dismissing the suit for specific performance.” In our view the judgment in Atul Sharma's case (supra) does not lay down the correct law and has to be overruled.
7. In Balmukand's case (supra) the question arose for consideration before their Lordships was as to whether the adult co-parceners were or were not entitled to be impleaded as defendants. In that case, the plaintiff himself impleaded the adult co-parcener as a defendant to the suit. The adult co-parceners had challenged the alienation being without legal necessity and for the benefit of the estate and further that the alienation by the Karta in the presence of adult members could not be made without their consultation. In that case, both the contentions had been upheld by their Lordship.
8. Balmukand's case (supra) cannot be taken as an authority holding that in a suit for specific performance co-parceners are entitled to be impleaded as defendants. In Bara Hanuman Temple Durgain, Amritsar v. Gurbux Lal Malhotra and others, A.I.R 1978 Punjab and Haryana 192 Gurnam Singh, J. delivered opinion for the Bench and observed as follows:—
“As a rule, the Court should not add any person as a defendant in a suit against the wishes of the plaintiff but, the word “may” in Sub-rule (2) of rule 10 of Order 1 of the Code, gives a discretion to the Court and where it finds that the addition of a new defendant is absolutely necessary to adjudicate effectively and Completely the matter in controversy between the parties, it will add a person as defendant even without the consent of the plaintiff. The power given to the Court under Order 1 Rule 10 is complete in all respects and it can join any person as plaintiff or defendant, who ought to have been joined or whose presence before the Court is necessary in order to enable it effectively and completely to adjudicate upon and settle all questions involved in the suit.”
9. There is no quarrel which this general statement of law. It is in the application of these legal principles in the given set of facts that the differences crop up. In that case it was a suit under Section 92 of the Code and in the context of that broad nature of that suit, this Court in that case came to the conclusion that the person wanting to be joined as defendant was a necessary party and, therefore, they sustained the order of the trial Court in that case. In Shivashankarepaa Mahadevappa Parakonhatti v. Shivappa Parappa Kupati and others, AIR 1943 Bombay 27 the facts were that the person who claimed to be joined as a defendant was in possession of the property, the possession whereof the plaintiff through the suit for specific performance wanted to obtain. Even if the plaintiff in that case had succeeded in getting the sale executed, he could not have got the possession of the property without a fresh suit for possession in which he would have to implead the person in possession as a defendant. So in the circumstances of that case the person claiming to be impleaded as an additional defendant was a necessary party. The ratio of P.R Nailathambi Goundan v. Vijaya Raghavan and others, AIR 1973 Madras 25 is also not applicable to the facts of the present case.
10. On behalf of the respondents reliance is placed on Banarsi Dass Durga Prashad v. Panna Lal Ram Richhpal Oswal and others, AIR 1969 Punjab & Haryana 57, Sadhu Eehera and others v. Krishana Chandra Sutar and another, AIR 1985 Orissa 93, Panne Khushali and another v. Jeewanlal Mathoo Khratik and another, AIR 1976 M.P 148 (F.B) and Raj Kumar Mehra v. Mrs. Anjali Bhaduri, AIR 1331 Delhi 237. In the judgments that have been relied upon on behalf or the respondents, the reasons given in sum is that a person who is either a stranger to the contract or where his joining of a party would change the nature of the suit, then such a person is not to be impleaded as a defendant.
11. Primarily the basic criteria that has to be kept in mind by the court is one which is envisaged in the provision of Order 1 Rule 10, Sub-rules (2), Civil Procedure Code, and the inquiry has always to be directed to see as to whether the party wanting to be impleaded as a defendant is either a necessary party or his presence is necessary to effectively and completely adjudicate upon the question arising in the suit.
12. As already observed, the petitioner is neither a necessary party nor is a person whose presence is necessary to enable the court to completely and effectively adjudicate upon the question arising in the suit. We therefore, are of the view that the trial court rightly declined to implead him as a defendant in the suit and, therefore, finding no merit in the petition we dismiss the same with no order as to costs.
Petition dismissed.
M.M Punchhi; J.—I agree.