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Bala Narasimha and ors. Vs. Gangaputra Co-operative Housing Society and ors. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1060 of 1983
Judge
Reported inAIR1984AP166
ActsCode of Civil Procedure (CPC), 1908 - Order 1, Rule 10(2)
AppellantBala Narasimha and ors.
RespondentGangaputra Co-operative Housing Society and ors.
Appellant AdvocateN.V. Ranganadham, Adv.
Respondent AdvocateA. Venkataramana, Adv.
Excerpt:
contract - specific performance - order 1 rule 10 (2) of code of civil procedure, 1908 - plaintiff filed suit for specific performance simpliciter - petitioners wanted to get themselves impleaded in suit - order 1 rule 10 applicable even in cases where no possession claimed along with specific performance - held, petitioners can be impleaded as defendants. - .....the property covered by agreement.4. the court below thought that inasmuch as the plaintiff in the suit claimed only a decree for specific performance as against the 1st defendant and his legal representatives there was no question of the decree affecting the rights of the petitioners herein who wanted to get themselves impleaded in the suit. the trial court thought that even fi there was a decree in ahte suit for specific performance of the agreement pleaded by the plaintiff there was no question of dispossessing the petitioners or affecting their rights. it was of the further view that in case the petitioners are impleaded in the suit the suit would be converted into one where the genuineness of the agreements set up by the petitioners has also to be gone into and would therefore.....
Judgment:
ORDER

1. This revision is directed against the order in I. A. No. 188 of 1982 in O. S. No. 173/82 on the file of the Additional Chief Judge, City Civil Court, Hyderabad. The lower Court dismissed the said application filed by the petitioners for impleading them as defendants in O. S. No. 175 of 1982.

2. There are five petitioners in I. A. No. 188/82. The first respondent is a Co-operative Housing Society and is the plaintiff. Respondents 2 to 10 are the defendants in suit. The 1st respondent filed the suit for specific performance of an agreement of sale dated 5-11-1975 against the 1st defendant and his legal representatives. The 5th defendant who is the legal representative of the 1st defendant filed a written statement contending that originally there were certain agreements of sale executed on 2-10-1974 and 5-1-1975 but that there was no subsequent agreement of sale as alleged by the plaintiff on 5-11-1975. We are not concerned with the defence of the 1st defendant or his legal representatives in this revision. It is, however, necessary to note that in paragraph 8 of the written statement filed by the 5th defendant it was stated that out of the land belonging to the 1st defendant there were certain other earlier agreements of sale in respect of five plots comprising an area of 310 square yards of land in favour of M/s. B. Bala Narasimha, Mohd. Ibrahim, B. Chukkaiah, Mohd. Shareef and Ramu Ladhu and that as such the said persons are necessary parties to the suit. It may be noted that the present I. A. No. 188/82 was filed by Bala Narasimha, Mohd. Ibrahim, B. Chukkaiah, Mohd. Sareef and Ramu Ladhu. In the application filed by them under O. 1, R. 10, C. P. C. the petitioners stated that they purchased various extents of land from the deceased 1st defendant earlier and they gave details of these lands. They also stated that they are in possession of various extents of land covered by the suit pursuant to agreements dated 19-11-1971 etc.

3. It is significant to note that in the suit the plaintiff society claimed only a decree for specific performance against its vendor the 1st defendant. No other consequential relief was claimed in the suit either for injunction or for possession of the property covered by agreement.

4. The Court below thought that inasmuch as the plaintiff in the suit claimed only a decree for specific performance as against the 1st defendant and his legal representatives there was no question of the decree affecting the rights of the petitioners herein who wanted to get themselves impleaded in the suit. The trial Court thought that even fi there was a decree in ahte suit for specific performance of the agreement pleaded by the plaintiff there was no question of dispossessing the petitioners or affecting their rights. It was of the further view that in case the petitioners are impleaded in the suit the suit would be converted into one where the genuineness of the agreements set up by the petitioners has also to be gone into and would therefore enlarge the scope of the suit. It therefore dismissed the petition filed by the petitioners under Order 1, Rule 10. C. P. C.

5. In this revision it is contended by Shri N. V. Ranganadham, the learned counsel for the petitioners that in view of the judgment of the Division Bench of this Court in Khaja Abdul v. Mahabub Saheb, : AIR1979AP152 the dispute raised by the petitioners was with reference to the same property which was the subject-matter of the suit between the plaintiff and the 1st defendant and that therefore the petitioners should have been impleaded as defendants in the suit. 'All questions in controversy in the suit' mean, according to the Division Bench Judgment, all questions involved in relation to the subject-matter of the suit and not necessarily those between the original parties to the suit.

6. On the other hand Shri. A. Venkatramana, the learned counsel for the respondent plaintiff contends that the lower Court has rightly followed the judgments of the Gujarat High Court in Rasiklal v. Natverlal, : AIR1975Guj178a and the judgment of the learned Judicial Commissioner of Tripure in Kshetra Mohan v. Mohamad Sadir, AIR 1964 Tripura 16, to the effect that in a suit for specific performance where no further relief of injunction or possession is claimed it was not necessary to implead persons who claim some rights in relation to the suit property.

7. On the basis of these contentions the question for consideration in this revision is : Whether in a suit for specific performance simpliciter where no consequential relief of possession or injunction is claimed, the persons claiming under earlier agreements of sale and in possession could be impleaded as being necessary or proper parties to the suit or not under Order 1, Rule 10, C. P. C.?

8. In my opinion, in view of the judgment of the Division Bench in Khaja Abdul v. Mahabub Saheb, : AIR1979AP152 the revision petition filed by the petitioners in I. A. No. 188/82 has to be allowe4d for the following reasons:-

9. It is true that it is a suit for specific performance without any consequential relief of possession or injunction. But the Division Bench of this Court in Khaja Abdul v. Mahabub Saheb has reviewed the entire case law on the subject and has held that the expression 'questions involved in the suit' would have to be interpreted in a wide sense and that persons claiming interest in the subject-matter of the suit would have to be impleaded even though the claim they make is not directly related to the dispute between the original parties to the suit. The Division Bench relied upon several earlier judgments of the Andhra Pradesh and the Madras High Courts on this question.

10. The Gujarat High Court in Rasiklal v. Natverlal, : AIR1975Guj178a has no doubt, as contended by the learned counsel for the respondent plaintiff, taken a different view. A reading of that judgment shows that the learned Judge has referred in paragraph 5 of that judgment to the different opinions expressed by different High Courts in India. The learned Judge observed in para 5 as follows:-

'It was contended on behalf of the opponents that the words all questions involved in the suit must be wide4ly 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-matter all the parties interested in such dispute should be brought before the Court and all questions in controversy between them should be completely settled in the action. For this proposition reliance was placed on the decisions in Vanjiappa Goundan v. Annamalai Chettiar, AIR 1940 Mad 69 and Bindeshwari Choudhari v. Sr. Sheo Nandan Upadhya, : AIR1973Pat347 . Now on this point the decisions of the Court are not unanimous. The decision in Banihari v. Bhojnath Singh, (ILR 59 Cal 329 : AIR 1932 Cal 448) takes a contrary view and the view taken is that the aforesaid words must only meant hat the questions which are involved in the suit as originally framed between the parties to the suit should be only considered for adding parties to the suit.'

After having mentioned the conflict of views the learned Judge, however, thought that inasmuch as no relief of possession was claimed by the plaintiff in the specific performance suit against the defendants, the parties who filed the application to implead themselves in that suit claiming title to the property, cannot be so impleaded.

11. The learned Judge in the Gujarat case observed that he was taking the view against impleading the proposed parties even assuming that, the words i.e., in Order 1, Rule 10, C. P. C., have wider connotation. That would mean that the learned Judge felt that even if the view similar to the one taken by the Division Bench of this Court in Khaja Abdul's case : AIR1979AP152 is to be accepted still in a suit for specific performance the only question would be whether the defendant was bound to execute sale deed in favour of the plaintiff and nothing more. This decision therefore definitely supports the case of the respondent plaintiff even if we have to follow the ruling in Khaja Abdul's case.

12. Coming to the decision of the Tripura Judicial Commissioner in Kshetra Mohan v. Mohamad Sadir (AIR 1964 Tripura 16) it will be seen that that was also a case relating to specific performance where no relief of possession was claimed. It was held that persons claiming title to the property anterior to the sale contract were neither necessary nor proper parties. The case in Prem Sukh Gulguli v. Habib Ullah, AIR 1945 Cal 355 and Mt. Nagi v. Damodhar Jagobaji, AIR 1948 Nag 181 were followed. This decision also definitely supports the case of the respondent-plaintiff.

13. But the question before me is whether the absence of a relief for possession or injunction should make any difference in view of the principles of law laid down in Khaja Abdul's case : AIR1979AP152 .

14. I am of the opinion that the principles of law laid down by the Division Bench do not permit any distinction being made on the basis whether a relief of possession or injunction is also claimed in a suit for specific performance or not. The bench held as follows (at pp. 153-54) :

'This power must be exercised in the interest of justice and also to avoid multiplicity of suits in respect of all the questions relating to the subject-matter of the suit. This provision must be liberally construed and the intendment being effective and complete adjudication and settlement of all the questions involved in the suit. The expression 'settle all the questions involved in the suit' used in Order 1, Rule 10 (2), C. P. C. is suspective of a liberal and wide interpretation as to take in the final adjudication of all the questions pertaining to the subject-matter thereof ........ ... .. The framers of this rule must be held to have intended that the material questions common to the parties to the suit and to the third parties should be tried once and for all ... ..... ....'

This Court has therefore taken the view that questions arising between third parties on the one hand and one or other of the parties to the suit on the other hand but relating to the same property should be decided once and for all.

15. A ratio of the above judgment does not n my opinion permit a distinction being drawn between cases where specific performance alone is claimed on the one hand and the case where specific performances along with the possession or injunction is also claimed. The Gujarat High Court in Rasiklal's case : AIR1975Guj178a stated that even if the provisions of Order 1, Rule 10, C. P. C. had to be interpreted in a liberal manner still cases where no possession was asked for along with the relief for specific performance fall outside the purview of Order 1, Rule 10 (2), C. P. C. I am unable to accept this view of the Gujarat High Court.

16. Even in cases where specific performance alone is asked for it may be relevant to go into the question as to whether one of the parties is in possession for the purpose of deciding the truth of the agreement or the question as to whether one of the parties was ready and willing to perform the contract. Even if such considerations do not arise in a simple suit for specific performance there is no doubt that the party who is successful in getting a sale deed from the vendor pursuant to the decree will not keep the decree without using it for thepurpose of seeking possession ultimately. As and when the successful vendee seeks to obtain possession, dispute between persons already in possession pursuant to an earlier agreement or a later agreement has necessarily to be gone into once again. According to the judgment of the Division Bench of this Court in Khaja Abdul's case : AIR1979AP152 one of the purposes of impleading parties is to avoid multiplicity of suits. Therefore, instead of permitting the dispute relating to the possession of the property to be kept in suspended animation, the impleading of the party holding or claiming to hold under a prior or later agreement would certainly avoid multiplicity of suits.

17. Therefore I am not able to agree with the view taken by the Gujarat High Court that even if Order 1, Rule 10, C. P. C. is to be given a wider interpretation still cases where no possession is claimed along with the specific performances do not fall within the purview of Order 1, Rule 10, C. P. C.

18. In fact Punnayya, J. in R. C. Saradha v. Poolchand Soni, 1981 (1) APLJ 363 referred to the above judgment of Gujarat High Court and after an exhaustive discussion of the law observed as follows:-

'It is under these circumstances, that I declined to follow the ruling of the learned single Judge of the Gujarat High Court in Rasiklal v. Natverlal, : AIR1975Guj178a .'

19. No doubt Punnayya, J. was dealing with a case where specific performance and possession were both claimed. I may also point out that Seetharam Reddy, J. in Gnaneshwar Rao v. Mahmood Shareef, (1982) 1 Andh WR 6 (SN) has followed the view taken by Punnayya, J. in the above case. That was also a suit for specific performance. It is not clear from the judgment whether possession was also asked for.

20. For the same reasons I prefer to follow the view taken by the Division Bench of this Court in Khaja Abdul's case : AIR1979AP152 even in cases where possession or injunction is not claimed and therefore, I do not propose to follow Rasiklal's case : AIR1975Guj178a or Kshetra Mohan's case (AIR 1964 Tripura 16).

21. For the above reasons this revision petition is allowed and the proposed parties are impleaded as defendants. They will be permitted to file their written statements also and the plaintiff will be entitled to file a rejoinder to the same. The C. R. P. is therefore allowed but in the circumstances without costs.

22. Revision allowed.


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