1. This is plaintiff's revision against the order dated 18-9-1981 passed by the Additional Civil Judge, Hubli in O.S. 124/1980 allowing I.As. 4 and 8 and thereby ordering that Respondents 2 and 3 be impleaded as defendants.
2. The plaintiffs filed the suit O. S, 124/80 for a declaration that they are the owners of the suit property and that the sale deed executed in favour of Defendant-1 on 13-4-1959 by the plaintiff's father was nominal, bogus and without consideration and it had come into existence under peculiar circumstances and so the 1st defendant got no title under the said sale deed. Plaintiffs also filed the suit for injunction restraining the defendant No, 1 from alienating the property.
3. Defendant No. 1 resisted the suit.
4. While the matter was standing at that stageRespondent-2 filed IA. IV alleging that Defendant-1 had agreed to sell the suit property to him and had entered into an agreement of sale with him. According to him he is also in possession of the first floor. So far as Respondent-2 is concerned it is undisputed that he has filed a suit in O.S. 164/79 against Respondent-1 for return of the advance money given by him to Defendant No. l under the agreement That suit is not for specific performance. In view of the suit filed by Respondent-2 it cannot be said that he has anything to do with this suit or he has got any interest in the suit property. Therefore under these circumstances the Trial Court erred in allowing I A. IV filed by Res-pondent.
5. Respondent-3 filed I. A. No 8. to implead him as defendant in the suit alleging that Defendant No. 1 had agreed on 12-6-1980 to sell the suit property to him and received in all Rs. 20,000/- from him as advance money. According to him he came to be in possession of the property.
6. Plaintiffs resisted the said Petition and denied that he was in possession of the property also. Plaintiffs have also denied the agreement of sale relied on by Respondent-3. The provision relating to the impleading of parties is Order 1 Rule 10 CPC Order 1 Rule 10(2) says :
'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 adjudicate upon and settle all the questions involved in the suit, be added.'
Under this Rule, a person may be impleaded as a party to a suit when he ought to have been joined as plaintiff or defendant and is not joined or when without his presence questions involved in the suit cannot be completely decided. Thus a person should not be impleaded as a defendant merely because he is incidentally affected by the judgment.
7. The Learned Author Sri Mulla has referred to the case in Sampat Bai v. Madhu Singh, (1960) AMP 84 and has extracted the following:
'The test is not whether the joinder of the person proposed to be added as a defendant would be according to or against the wishes of the plaintiff or whether the joinder would involve an investigation into aquestion not arising on the cause of action averred by the plaintiff. It is whether the relief claimed by the plaintiff will directly affect the intervener in the enjoyment of his rights. It is not enough that the plaintiff's right, and rights which the person desiring to be made a defendant wishes to assert should be connected with the same subject matter. The intervener must be directly and legally interested in the answers to the questions involved in the case. A person is legally interested in the answer only if he can say that it may lead to a result that will affect him legally - that is by curtailing his legal rights.'
The Learned Author has further observed with an illustration thus :
'A purchased goods from B by sample. The bulk did not correspond with the sample, and A thereupon sued B for damages. B contended that he had purchased the goods in question from X by sample, and applied that X should be added as a party to the suit as the question between him (B) and X was the same as the question between him (B) and A (viz., whether the goods were according to the sample), so as to relieve him (B) from the necessity of bringing a fresh suit against X in the event of the Court, holding that (he goods were not according to the sample. Held, refusing B's application, that X was not a person who 'ought' to be joined as a party to the suit, nor was his presence necessary to decide 'the questions involved in the suit.' In this case A had nothing to do with X, and to add X as a party would be to introduce a new cause of action which existed only as between B and X. The Court would then have to inquire into the circum-stances under which B's agreement with X was entered into, an enquiry with which 'A' had nothing to do.'
The present plaintiffs have nothing to do with the agreement said to have been entered into by Defendant-1 with Respon-dent-3 at all. The questions that would arise in these circumstances are : whether the sale deed executed by the plaintiff's father in favour of defendant No. 1 is bogus and without consideration, and came into existence under the circumstances pleaded by the plaintiffs. Therefore the questions involved in the suit filed by the plaintiffs are; entirely different from the questions arising out of theagreement to sell the suit property executed by Respondent-1 in favour of Respondent-3. The questions that would arise on the basis of the alleged agreement would be entirely foreign to the points that would arise in the present suit. The cause of action involved in the present suit is entirely different from the one that may arise in respect of the agreement executed in favour of Respondent-3. In the circumstances, to implead Respondent-3 would be widening the scope of the suit and would require the Court to decide the issues which do not arise at all in the suit filed by the plaintiffs.
8. Further Respondent-3 claims to be in possession of the property. The plaintiffs do not admit it. Now it is stated before me by the Learned Counsel for Respondent-3 that Respondent-3 had been dispossessed by the plaintiffs and an application under Section 145 Cr.P.C. was pending before the Sub-Divisional Magistrate. This Court is not concerned with that application under Section 145 Cr. P.C. But the fact remains that he is not in possession of the property as on today atleast. Therefore under these circumstances, the Court below committed an error in impleading Respondent-3 as party to the suit.
9. Therefore, under these circumstances, the order passed by the Court below allowing I.As 4 and 8 and thus ordering impleading of Respondents-2 and 3 is setaside. Revision is allowed I-As.4 and 8 are dismissed.