1. This revision is filed against an order allowing I. A. No. 400 of 1980 filed by the 1st respondent herein against the 2nd respondent herein and her children for specific performance of an agreement of sale.
2. The relevant facts, in brief, are: The petitioner herein filed O. S. No. 3365 of 1979 against the 2nd respondent and her children for specific performance of an agreement of sale in respect of land comprised in S. Nos. 1 and 124 situated at Mir Sagar, Hyderabad District and for execution of a registered sale deed in pursuance thereof. The defendant, Ameer Bi, took a plea in the written statement that the pattedar of the suit land is Mahamood Sharif (1st respondent herein). But the plaintiff did not choose to make him a party to the suit. Prior to the filing of the suit, succession proceedings were initiated and they ended in favour of Mahmood Sharif (1st respondent herein) and against the defendant (Ameer Bi) on the death of the late Maqdoom Sharif, the father of the 1st respondent herein.
On the basis of the alleged agreement of sale proceedings were sought to be initiated before the revenue authorities for the rectification of the entries in the revenue records under section 58 of the Land Revenue Act in respect of the aforesaid two S. Nos. wherein the plaintiff sought his name to be included by deleting the name of Mahmood Sharif and Ameer Bi. respondents 1 and 2 herein. But the application was dismissed directing the claimant for a recourse to civil court. The proceedings under Ex. B-2 disclose that the collectorate issued a memo to Ameer Bi saying that it had no jurisdiction to inquire into the succession certificate already sanctioned in favour of Mohmood Sharif. The appeal against that order to the Joint Collector was dismissed. Mahmood Sharif, as Pattedar, filed also a declaration before the Land Ceiling Authority and the necessary orders also were passed in the said declaration computing the said S. Nos. in his extent.
In the suit, later, the said Ameer Bi, along with her children, tried to enter into a compromise with the plaintiff. At that stage, the 1st respondent, as a proposed third-party, filed I. A. No. 400 of 1980 under O. 1, R. 10. Civil P. C. To implead him in the suit as a necessary and proper party, which was contested by the plaintiff, petitioner herein. But the trial court allowed the petition on the ground that the proposed third party has got right, interest and title over the suit property and, therefore, certainly he is a necessary and proper party though the suit is filed for specific performance of an agreement of sale seeking relief only against the 2nd respondent, viz. Ameer Bi. The Lower court further found that having regard to the various circumstances as disclosed in the voluminous documents filed on behalf of the proposed third-party, it is necessary to adjudicate the rights in this suit itself and if it is not done so, it would give rise to multiplicity of proceedings, which must be avoided. Hence this revision.
3. The Contention in the main of Sri Chennakesava Rao, learned Council for the petitioner, is that in a suit for specific performance of an agreement of sale , any person claiming the or share adverse to the vendor cannot be impleaded, because firstly, it will change the nature of the suit and secondly, it will introduce new questions which are not involved in the suit.
4. Before analysing the contention of the learned counsel for the petitioner, one admitted fact may be noticed: and that is, when an objection was raised in the written statement by the defendant Ameer Bi that there are certain other affected parties like the sister and other heirs of the late Maqdoom Sharif. Steps were taken by the petitioner herein and they were got impleaded. But the 1st respondent herein was not got implead, though it is admitted that he is the son of the late Maqdoom Sharif. After getting the other heirs impleaded, a stage was reached when a compromise was sought to be entered into between the defendants and the plaintiff. It is at the stage that I. A. No. 400 of 1980 was filed by the 1st respondent for impleading him as a party to the suit.
5. The question in the main turns upon the provisions enacted in R. 10 (2) of O. 1 which reads.
'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, for 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.'
In support of his contention, learned counsel for the petitioner cited the following decisions. In palanisamy Chettiar v. Komara Chettiar, : AIR1950Mad91 a suit was filed for specific performance of an agreement to sell executed by the defendants 1 and 2. The 3rd defendant, a subsequent purchaser of the property, was also impleaded. An interlocutory application was filed by the sons of the defendants 1 and 2 for adding them as party-defendants 4 to 9 under O.1. R, 10, Civil Procedure Code, alleging that they are the sons of defendants 1 and 2 and they have also filed a suit in a different court alleging that the alienations by the defendants 1 and 2 were not binding on them and for partion and possession of their separate shares. The application was resisted. However, it was allowed and on revision to the High Court, the Madras High Court placed reliance on a Bench decision of that Court in Muni Samappa v. Gurunanjappa, : AIR1950Mad91 wherein Rajamannar, C. J., observed : AIR1950Mad91 .
'Where a person sues for specific performance of an agreement to convey and simply impleads the party bond to carry out the agreement there is no necessity to determine the question of the vendor's title, and the fact that the title which the purchaser may acquire might be defeasible by a third party (for instance the sons of the vendor being entitled under Hindu Law to shares in the property) is no ground for refusal is willing to take such title as the vendor has'.
'It is therefore clear that the respondents are not necessary parties to this suit for specific performance of an agreement to sell. The application is made under Order 1, Rule 10. Order 1, R. 10. Cl. (2) enables a court to add as party any person whose presence before the court may be necessary in order to enable the court effectually and completely adjudicate upon settle all the questions involved in the suit. The question involved in the suit as disclosed by pleadings in the suit and in view of the observations of the learned judges whose judgement I have cited above, is not one relating to the liability of the sons not does it relate to the right of the sons in respect of the properties. What the plaintiff would get if the succeeds in getting a decree for specific performance is a sale deed which willing only the executants of the sale, namely defendants 1 and 2 and would not affect the position of the sons or their right if any to these properties I think that the rights of the sons to these properties is not a question involved in the suit and it is therefore not necessary that they should be made parties.'
It further held.
'In an application under O. 1, R, 10, Civil P.C. the court should consider mainly whether the presence of the proposed parties would be necessary for adjudicating upon the questions that are involved in the suit and an order for addition of parties should not be made merely with a view to avoid multiplicity of suits if otherwise their presence is not necessary for determining the real questions involved in the suit.'
5A. A Full Bench of the Madhya Pradesh High Court, in Panne Khushali v. Jeewanlal, AIR Madh Pra 148, (at p. 152) held,
The question referred to us is :-
'Whether in a suit for specific performance of a contract for sale a third person intervene, who contends that the suit property is joint property of the applicant and he is also the co-owner of that property would be made a party (defendant).
Our answer is:
Strangers to the contract making claim adverse to the title of the defendant (vendor) contending that they are the co-owners of the contracted property are neither necessary not proper party and are., therefore, not entitled to be joined as parties to the suit.'
6. In Sukh Gulgulia v. Habib Ullah. AIR 1945 Cal 355 a Division Bench of the Calcutta High Court held:
'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 property from the vendor after the contract. He is a necessary party as he would be affected. If he is a volunteer. Or if a purchaser for value, had purchased with notice of the contract. A person who claims adversely to the vendor is how-ever, not necessary party. Where the property stands in the name of a person other than the vendor and the suit for specific performance is brought by the purchaser, that person may be joined as a defendant as a proper party on an allegation that he is the benamidar of the vendor but if he appears and contends that he is not the benamidar of the vendor the proper procedure would be to discharged him from the suit, leaving it to the plaintiff in the suit for specific performance to institute a suit against him after he had got the conveyance in execution of the decree for specific performance against his vendor. This is on the principle that the scope of a suit for specific performance or a contract for sale ought not to be enlarged and the suit turned also into a title suit between one of either of the parties to the contract and a strange to the contract.'
7. In E. Ajay Kumar v. Tulsabai, : AIR1973Bom330 , the Bombay High Court held, (at p. 331)
'The power of the court to add parties in such matters is referable to O. 1, R. 10. Civil P.C. Sub-rule (2) empowers the court either upon or without application to direct parties to be joined who ought to have been joined or whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. The provisions which are efface enabling clearly indicate the conditions for exercise of that power. It is only when the court comes to the conclusion that for the purpose of full adjudication of the matters in issue or to settle the controversies, a party which is not added is necessary, the provisions of sub-rule (2) are attracted. It is plain that unless the party proposed to be added has directly or indirectly an interest in the controversy or its adjudication, the power cannot be invoked.
Now, in the present case, it is simple suit for specific performance of an agreement to sell certain property. That agreement will have to be established as pleaded by the plaintiff himself. Not only (sic) before the Court can be asked to pass a decree for specific performance the plaintiff is bound to establish all the conditions that are requisite for completing such a sale transaction. It is implicit in such a controversy that if the evidence indicates or if a plea is raised that there is no title under which such an agreement could have been at all entered into the suit would fail. That does not mean that the court is enjoined to enter upon the questions which are neither pleaded nor are in issue. If the defendant against,
whom such a suit is filed has a defective title but agreement is property enforceable the plaintiff may choose to take even the defective title in such a suit. Similarly, there may be a title in part with the defendant and that may ultimately pass to the plaintiff. In neither of these cases a stranger to the agreement and hence to the controversy who claims to be entitles to the property as such can come before the court either as necessary or proper party.'
8. In Rasiklal v. Natverlal, : AIR1975Guj178a . The Gujarat High Court had to deal with a case where the parties to the agreement for sale in respect of which the suit for specific performance was filed were only the plaintiff and the defendant. The only relief claimed was that the defendant should be ordered to execute and document of sale in pursuance of the agreement of sale or the same should be got executed through court. The plaintiff was willing to take the title which his vendor had. No relief for possession of the suit property was claimed not was any relief claimed against the defendant's sisters. They claimed that they were entitled to inherit the suit property under the provisions of the Hindu Law and that the agreement of sale was not blinding on them and therefore entitled to be impleaded as parties to the suit. On those facts the Gujurat High Court held. (At p.181).
'.......defendant's sisters could not be allowed to be joined as parties to the suit. They could not be said to be necessary parties, nor was their presence necessary to adjudicate upon all the questions involved in the case.'
In Rai K. Mahra v. Anjali Bhaduri,AIR 1981 Delhi 237, where in s suit for specific performance of an agreement to sell house the son and daughter of the defendant (vendor) sought to implead themselves as co-defendants, the Delhi High Court disallowed permission to implead them holding that impleading them would convert the suit for specific performance into one for title. It further held, (at p. 239)
'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, there, not entitled to be joined as parties to the suit. Parties should not be added so as to convert a suit of one character into a suit of a different character.'
9. The cases relied on for the converse position may now be noticed. In M. V. Krishnamachari v. Dhanalakshmi, : AIR1968Mad142 . In a suit for partition against C plaintiffs were claiming the property as joint family property . P filed an application fir impleading himself as a supplemental defendant and his case was that C had entered into a written agreement of sale with him agreeing to convey a certain house for a certain sum and in pursuance thereof a certain sum was paid to C who had agreed to convey the property and execute the registered deed of sale within a specified period; his further case was that the agreement of sale was entered into by C Making the express representation both oral and under express terms of the agreement of sale that the property agreed to be conveyed was his own self-acquired property. P's claim was that as the plaintiffs in the partition suit were claiming the property as joint family property and as he apprehended collusion between the plaintiff and the defendant he sought to be impleaded as a party to prevent any collusion and also to bring to the notice of the court his rights under the agreement of sale, so that in equity the property agreed to be sold, might if possible be allotted to the share of the defendant. In those circumstances and facts of the case, the Madras High Court held.
(I) that P ought to have been impleaded as a supplemental defendant by the court exercise its powers under O. 1. R. 10 (2), C. P. C.
(Ii) that the plaintiffs claimed the property as joint family property, and any decision rendered therein would not affect the rights of P, the third party applicant. He could always file the suit for specific performance and recover possession of the property from his vendor as well as the plaintiffs even if the properties were allotted to the plaintiff provided P could establish that the properties were the self-acquired properties of C. The question of then character of the property would have to be decided in two litigations, in both of which the plaintiff would be party. Such a course would result in unnecessary multiplicity of proceedings and would also be exposed to the mischief or risk of conflicting decisions on the identical matter in dispute when common-sense and convenience demanded that there should be a single conclusive final decision:
(iii) that even if it should be held that the property was joint family property and the agreement of sale would not bind the interest of the plaintiffs P would undoubtedly be entitled to a charge under S. 55(6)(b) of T. P. Act, 1882, for the prepaid purchase price on the share of C either in the property agreed to be sold or in any other property that might be allotted to C at the family partition. In addition there would be a right of substituted security which the Hindu Law recognised in the case of a mortgage created by a coparcener of the family. Thus from any point of view P would be undoubtedly entitled to a charge for the purchase price paid, at the worst either against the property agreed to be sold or some other property. Agreed to be sold or some other property. Which would constitute sufficient ground and interest to entitle P to be impleaded as a party.
(Iv) that P was to be impleaded only for the limited purpose of establishing that the property was the separate property of his vendor, or alternatively for suggesting to the court that without prejudice to the court that without prejudice to the interests of the plaintiffs the property agreed to be sold might be allotted to the share of C. So that in a separate suit of his own P could either obtain specific performance or enforce charge under Sec. 55 (6) (b). T. P. Act. 1882 against the property in the hands of C after a final allotment in the partition suit.
In Razia Begum v. Anwar Begum : 1SCR1111 , a Musium woman filed a suit against her husband seeking a declaration that she is hislegally wedded wife and, therefore, as per the contractual promise prior to the marriage she would be entitled to Kharch-e-Pandan and so the same may be awarded. Another woman, who was admittedly a legally wedded wife, and he son filed an application for adding them as parties to the suit. The application was allowed by the trial court and the same was confirmed by he high Court in revision, which was challenged by special leave before the Supreme Court. In the written statement, the husband did not specifically deny the marriage with the plaintiff. A few days after the filing of the written statement, the Mujtahid, who is alleged to have solemnised the marriage was examined in Court and he stated on oath in support of the plaintiff. The witness was, however, not cross examined on behalf of the defendant husband. It was stated before the court on behalf of the respondents 1 and 2 that there were pieces of documentary evidence far from certain alleged admissions made by the plaintiff, which seriously militate against the plaintiff's case and the statement of the witness referred to above. In the light of the above format of the case, the Supreme Court enunciated the following principles:
(1) That the question of addition of parties under Rule 10 of O. 1 of the C. P. C. is generally not one of initial jurisdiction of the court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case: but in some cases. It may raise controversies as to the power of the court, in contradistinction to its inherent jurisdiction,, in other words of jurisdiction in the limited sense in which it is used in Sec. 115 of the Code:
(2) That in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject-matter of the litigation:
(3) Where the subject-matter of a litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party it would be in a better position effectually and completely to adjudicate upon the controversy:
(4) The cases contemplated in the last proposition have to be determined I accordance with then statutory provisions of Sec. 42 and 43 of the Specific Relief Act:
(5) In cases covered by those statutory provisions, the court is not bound to grant the declaration prayed for, on a mere admission of the claim by the defendant, if the court has reasons to insist upon a clear proof apart from the admission:
(6) The result of a declaratory decree on the question of status, such as in controversy n the instant case, affects not only the parties actually before the court, but generations to come and in view of that consideration, the rule of 'present interest'. As evolved by case law relating to disputes about property does not apply with full force: and
(7) The rule laid down in Sec. 43 of the specific Relief Act, is not exactly a rule or res judicate. It is narrower in one sense and wider in another.
'.....The courts below did not exceed their power in directing the addition of the respondents 1 and 2 as parties-defendants in the action. Nor can it be said that the exercise of the discretion was not sound.'
A Division Bench of this Court, in K. A. Khader v. Mahaboob Saheb : AIR1979AP152 , while examining the scope of the provisions of order 1, Rule 2, and in particulars with reference to the expression 'questions involved in the suit,' held, (at p.154):-
'The framers of this rule must be held to have intended that all the material questions common to the parties to the suit and to third parties should be tried once and for all and the court is invested to secure the aforesaid result with an ample judicious discretion to add parties which are necessary or proper in this regard. The narrow interpretation of settlement of all the questions involved in the suit between the parties alone would amount to adding some thing into this provisions which was not specifically introduced by the Sovereign Parliament. If the narrow view sought to be placed upon this provision was intended by the Legislature nothing would have prevented them from using the words between the parties. The crucial last for the addition or other wise of a particular party as defendant or plaintiff is whether the presence of such party is necessary or at least proper without whom there can be no effective and final adjudication of all issues involved in the suit with regard to the same subject-mater.'
Punnayya. J., in recent decision of this court in R. C. Saradha v. Phoolchand Soni (1981) 1 APLJ 363, where a suit for specific performance of an agreement of sale executed by the defendant was filed ad the persons claiming a share in the subject-matter of the agreement of sale sought to implead themselves as defendants had to consider whether they were proper partial to be added within the meaning of C. I. R. 10 (2). After examing a catena of case law laid down by the courts of this country as well as abroad, and in particular, Palanisamy v. Konara Chettiar : AIR1950Mad90 (supra), Secretary of State v. Murugesa, AIR 1929 Mad 443, Razia Begum v. Anwar Begum : 1SCR1111 Saheb : AIR1979AP152 (Supra) he held:-
'In the case on hand, the brother who is the petitioner in C. R. P. No. 983/80 and the sister who is the petitioner in C. R. P. No. 984/80 of the defendant claimed to have shares in the properties on hand, the brother who is the petitioner in C. R. P. No. 983/80 and the sister who is the petitioner in C. R. P. No. 984/80 of the defendant claimed to have shares in the property is respect of which specific performance is sought for and they have, therefore, direct interest in the property which is the subject-matter of the suit. It is true that in the strict sense, they may not be necessary parties. But it cannot be said that they are not proper parties and their presence is not necessary to enable to court to adjudicate all the questions in the suit more effectively and completely and avoid multiplicity of proceedings. If they are proper parties their presence's necessary and they should therefore, be impleaded in the suit.
Xx xx xx xx xx
....the benefit given by the Legislature under O. 1 Rule 10 (2) can be applicables even to a suit for specific performance if the party sought to be impleaded satisfies the requirements of Rule 10 (2) of O. 1 and it cannot, therefore, be said that it has no application to s suit for specific performance'.
Punnayya, J., further observed:-
'In this ruling (K. A. Khader v. Mahaboob Saheb(AIR 1979 ] Pra 152) Division bench Unequivocally held that all the questions involved in the suit do not mean that all the questions between the parties to the suit only but do mean all the questions in the suit. Hence the ruling in Palani Samy's case. : AIR1950Mad91 should be deemed to have been overruled by implication.'
10. On a conspectus of the above case-law the principles that could be said to emerge in regard to application of the provisions enacted in sub-r. (2) of Rule 10 of O. 1. C. P. C. and in particular the expressions 'whose presence before the court may be necessary' and 'in order to enable the court to effectively and completely adjudicate upon and settle all then question involved in the suit' are:
(1) 'Settle all the questions involved in the suit' should be construed to mean, not restricting the scope between the parties to the suit, but to a wider area concerning the subject-matter of the suit involving even the third party's claim and interest.
(2) The question of addition of parties under R. 10 (2) of O. 1 is generally not one of initial jurisdiction but of a judicial discretion which has to be exercised in view of the facts and circumstances of each case. The jurisdictional aspect is in the limited sense contemplated under Sec. 115 of the C. P. C.
(3) For effectual and complete adjudication of the questions involved in the suit, the presence of a third-party ,even if it is not necessary, but if proper, should be allowed to be added as a party if applied for.
(4) In a suit relating to property, the person to be added as party should have a direct interest as distinct from a commercial interest in the subject-matter of the litigation.
(5) Where the subject-matter of a litigation is a declaration as regards status or a legal character , the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party, it would be in a better position effectual and completely to adjudicate upon the controversy.
(6) The rule laid down in Sc. 43 of the specific Relief Act is not exactly a rule of res judicate. It is narrow in one sense and wider in another.
11. In the case before me. Admittedly, the 2nd respondent is the son of the late Maqdoom Sharif. Succession proceedings ensued thereafter, ended in favour of the 1st respondent , Amir bi, proceedings in regard to mutation in the revenue records ended in eventual dismissal of the appeal of the petitioner herein voluminous evidence has been produced by the 1st respondent (proposed party) showing that he is the rightful owner, that he has been in possession of the land which is the subject-matter of the suit, that civil and criminal proceedings ended in his favour, and also declarations made under the Land Ceiling Act and orders made thereon would indicate that he is the rightful owner.
If this background is borne in mind. It would not be very difficult to adjudicate on the aspect whether in the subsequent litigation initiated by the petitioner herein filing a suit though for specific performance of an agreement of sale said to have been entered into between the 2nd respondent and the petitioner herein, and 2nd respondent purporting to acquire interest in the property under an alleged will said to have been executed by the late Maqdoom Sharifg even though objection has been raised in the written statement that the other heirs of Maqdoom Sharif have been impleaded except the 1st respondent herein and thereafter the parties with an oblique motive were trying to arrive at a compromise and it is at that stage that the 1st respondent herein intervened with a prayer to come on record being a necessary and proper party to the suit, which is objected to by the petitioner; and whether the proposed third party is entitled to be impleaded or not. The above material would amply provide a clue in regard to the relevancy and expediency of the application made by the 1st respondent herein for being impleaded in the suit.
12. It may be true that for a limited purpose, viz., for deciding the suit for specific performance of an agreement to sell land, the subject-matter of the suit is apparently confined to the petitioner and the 2nd respondent herein and it may not be ex facie strictly necessary to adjudicate upon a claim sought to be laid by the third-party. But, the question is, whether any decree so passed therein would be an effectual decree, One has to necessarily again come to the stage as to whether the decree so obtained and even resulting in the execution of the registered sale deed at the instance of the court, could be eventually fructified without subjecting it to the claims and objections of the 1st respondent herein. If the answer is in the negative, which is so in my undoubted view, then why postpone it to a later date? It is precisely this circumstance which involves the multiplicity of proceedings that is contemplated to be avoided by the legislative intendment as enacted under sub-rule (2) of R. 10 of O. 1 Civil P.C. To hold it otherwise would not only be doing violence to the language of the legislature, but would even be opposed to the scheme. Object and intendment of the Legislature. The tow enemies of litigation, viz. delay and expense, must be avoided at any cost.
13. The lower court very rightly allowed the application of the 1st respondent herein for adding him as party to the suit, and it is quite in accord with the principles enunciated above; and I see no error in the exercise of its discretion which is judicious and proper and so no interference by this court is warranted.
14. In the result, the Civil Revision Petition is dismissed. No costs.
15. Petition dismissed.