This is an application by the defendant under Order 1, Rule 10 of the Code of Civil Procedure seeking to implead Major Shankar Bhaduri and Mrs. Madhuchanda Haldar as co-defendants on the ground that their presence is necessary to enable the Court to effectively and completely adjudicate upon the matters in dispute in this suit.
2. The application is being resisted by the plaintiff on the ground that the said two persons, sought to be impleaded as defendants, though son and daughter respectively of the defendant, yet are strangers to the agreement to sell house No. C-189, Defence Colony, New Delhi, entered into on 30th November, 1978, between the parties. Their presence, it is urged, is not at all necessary to adjudicate upon the questions arising in this suit for specific performance of that agreement.
3. In order to decide this application it is necessary to give a brief resume of the facts of this case. The plaintiff was occupying the ground floor of house No. C-189, Defence Colony, New Delhi as a tenant under the defendant Smt. Anjali Bhaduri for the last about 18 years on a monthly rent of Rs. 325/-. Some time in the month of November, 1978, it was agreed between the parties that the defendant will sell and the plaintiff will buy the said house for a consideration of Rs. 2,85,000/-. An agreement to sell the said property was executed on 30th November, 1978. In pursuance of the agreement a sum of Rs. 5,000/- vide cheque No. 17483984 drawn on the United Commercial Bank, Defence Colony, New Delhi, was paid to the defendant. The balance price of Rs. 2,80,000/- was to be paid to the defendant at the time of registration of the sale deed. It is averred that the defendant had accepted the cheque in part payment of the sale price.
4. The allegation of the plaintiff is that as the defendant had been offered more money for the property in dispute, she wants to (resile) from the agreement although she has accepted part payment towards the price of the house. With that object in view she wrote to the plaintiff on 27th Jan., 1979, stating that she was not the owner of the property; that the property was built by her with the funds left by her late husband and therefore her children had an interest in the same. Hence, this suit for specific performance against the defendant who is stated to be the sole owner of the property agreed to be sold.
5. During admission and denial of documents filed by the parties the defendant had admitted the execution of the agreement dated 30th November, 1978. Before settlement of the issues it was considered necessary to record the statement of the defendant. On 6th Feb., 1981, she made the following statement :
“The house in question bearing No. C-189, Defence Colony, New Delhi, stands in my name. I pay the house tax. The entry regarding the ownership in the records of the Municipal Corporation of Delhi is in my name. I constructed this house in the year 1960. I had let out this house in the year 1960. I know the plaintiff. He was my tenant on the ground floor of the said house. I had entered into an agreement with the plaintiff on 30th Nov., 1978, to sell that house. That agreement is Ex. P-1. Exhibit P-2 is the certified copy of the lease-deed dated 27th Dec., 1957, relating to the plot of the said house. Since 1960, the rental income derived from this house was being shown as my personal income. My children were minor at that time. All the income which was derived from that house was spent on their up-keep as well.”
The plaintiff also made a statement on that date. It is in these words :
“I am prepared to buy the property, subject-matter of the suit whatever be the defect in the title, if any, of the defendant and even if the property is not vacated by the tenant occupying the first floor of the property.
I did receive a notice from the defendant stating that she was not the only owner but this was after two months of the date of the said agreement, Ex. P-1. The cheque of Rs. 5,000/- which I had paid to the defendant at the time of the execution of the agreement was also returned along with the notice.”
Before, however, the issues could be settled, the present application was moved by the defendant.
6. It is averred by the defendant that she has received summons from the Court of the Additional District Judge. Delhi, in a suit for declaration filed by Major Shankar Bhaduri (her son) and another in which those plaintiffs have prayed for a decree for declaration that they are joint owners in respect of the property, C-189, Defence Colony, New Delhi. According to her as that suit relates to the subject-matter of the present suit (No. 448 of 1979), it is necessary that those plaintiffs be impleaded as co-defendants in the instant suit.
7. Similar question arose for consideration of the Madhya Pradesh High Court in Panne Khushali v. Jeewanlal Mathoo Khatik, AIR 1976 Madh Pra 148 (FB). The following question was referred by a Division Bench to the Full Bench of that High Court, “whether in a suit for a specific performance of a contract for sale, instituted by a purchaser against the vendor, a stranger to the contract, who, contending that the contracted property is a joint family property, of which he is also the co-owner, wants to intervene in the suit, is entitled to be added as a party”. After noticing the case law on the subject, including a decision of their Lordships of the Supreme Court in Razia Begum v. Anwar Begum, AIR 1958 SC 886, it was held that (at p. 152 of AIR 1976 MP) :
“If the plaintiff, even after notice of claim of title hostile to his vendor by an intervener, does not want to join the intervener, he takes the risk. He cannot be forced upon to join the intervener. We are in agreement with the view taken by Bhargava, J. (as he then was) in Gajanandrao v. Babulal, 1970 MPWR (SN) 69 (supra) that in a suit for specific performance of a contract for sale in respect of a property against the defendant, some person who applies for being impleaded as a party to the suit on the ground, he has a right by birth in the suit property, cannot be joined as a party under O. 1, R. 10 of the Code, because if such a person was allowed to intervene in the suit as a party, the nature of the suit will change from a suit for specific performance of a contract to that of a suit for title. It has further been held that the proper course is to institute another suit for title, impleading parties to the suit in which the interveners had prayed for being joined as a party.”
8. The answer by the Full Bench to the question referred to it in the abovecited case was “Strangers to the contract making a claim adverse to the title of the defendant (vendor) contending that they are the co-owners of the contracted property are neither necessary nor proper party and are, therefore, not entitled to be joined as parties to the suit.”
9. In view of this clear enunciation of law it is not necessary to notice all the authorities cited before me by Mr. A.K Tandon, learned counsel for the applicant-defendant. Most of the decisions relied upon by him have been discussed by the Full Bench of Madhya Pradesh High Court in the above cited case.
10. In support of his contention that the son and daughter of the defendant be impleaded as necessary parties in the present suit, Mr. Tandon relied upon a decision of this Court in Sardar Harbans Singh…Petitioner v. E.R Srinivasan & Another…S, AIR 1979 Delhi 171. In a suit for ejectment by the landlord against the tenant, S. Ranganathan, J. held that a third party claiming to be the real tenant was entitled to be impleaded as a defendant. The Court, therefore, it was observed, in exercising its discretion under Order 1, Rule 10 can implead that person as a party so as to prevent multiplicity of proceedings and for completely and effectively adjudicating upon a dispute.
11. The ratio of this decision is not applicable to the present case. In the event of the prayer of the defendant in the present application being granted, the nature of this suit for specific performance will necessarily change to that of a suit for title, as held by the Full Bench of the Madhya Pradesh High Court in Panne Khushali's case (AIR 1976 Madh Pra 148) (supra). Law is very clear that parties should not be added so as to convert a suit of one character into a suit of a different character. Proper course for the son and daughter of the defendant was to institute another suit which, according to the defendant, they have already filed. In Harbans Singh's case (AIR 1979 Delhi 171) (supra) by impleading the person claiming to be the real tenant, the character and nature of the suit could not have changed.
12. In view of my discussion above, the application has no force and the same is dismissed. The parties are, however, left to bear their own costs.
Application dismissed.