1. The plaintiff-non-applicant No. 1 filed suit (No. 56-A/ 69) in the Court of the Second Civil Judge, Class II, Gwalior for the specific performance of a contract, contending that the non-applicant No. 2 had entered into an agreement with him for the sale of the contracted! house to turn, but has failed to complete the sale and prayed for a decree directing the non-applicant No. 2 to complete the sale by executing and setting registered a sale-deed in his favour. The intervener applicants made an application for being joined as a party to the suit contending that the suit property is a coparcenery property and they as coparceners are the co-owners of it; the non-applicant No. 2 had neither a right to enter into an agreement for sale, nor has a right to sell it, nor any such act of his can bind their shares in it.
2. The trial Court rejected the application, holding that the applicants cannot be added as parties to the suit against which the present revision was filed in this Court. In view of the apparent conflict in the decisions of this Court in, Roopkishore v Tarabai, Civil Revn. No. 473 of 1967, decided on March 3, 1970 =' (1970 MPWR (SN) 132). by Krishnan. J. and in Gananandrao v. Babulal. Civil Revn. No. 351 of 1967. decided on May 3, 1968 = (1970 MPWR (SN) 69). by Bhar-gava, J., Shiv Dayal, J. (as he then was --now Chief Justice) before whom the revision came up for hearing, referred the matter for decision by a larger Bench. The matter was referred to the Division Bench (of which myself was also the Member) which also referred the matter for decision by a larger Bench and hence. the matter has come up before the Full Bench,
3. In view of the controversy involved, the question for decision by this Bench is formulated thus :
'Whether in a suit for a specific performance of a contract for sale, instituted by a Durchaser 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.'
4. If there is a statutory provision specifically providing for the parties to be joined in a particular lis unquestionably all those parties are necessarv to be joined. To illustrate, the Representation of the People Act. 1951 contains Section 82 which provides who are the persons who should be joined as parties to the petition. In absence of any such specific provision, the Court has to determine with reference to the provisions contained in the Code of Civil Procedure (hereinafter referred to as the Code). The provisions in the Code relating to joining of parties are contained in Order 1. Rules 1, 3 and 10. The provisions of Order 1, Rules 1 and 3 make it permissible to join more than one plaintiff and defendant in a suit respectively. The parties who can be joined as plaintiffs and defendants in a suit under these rules respectively are persons in whom and against whom anv right to relief in respect of or arisine out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly severally or in the alternative, where if such persons were uarties in separate suits, any common question of law or fact would arise. On a bare reading of these rules of Order 1, it is axiomatic that in the instant case, the provisions of Order 1, Rules 1 and 3 are not attracted. Then comes Rule 10 of Order 1. relevant portion of which is quoted hereinbelow under which, the Court has the jurisdiction or power of substituting adding or striking out of party to a suit
'Suit in name of wrong plaintiff.-
(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just Court may strike out or add parties.
(2) 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 tihe 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.'
5. The forequoted Sub-rule (1) relates to the addition of parties as plaintiffs only and therefore, it is not relevant in the instant case. The only relevant provision for answering the question before us is Sub-rule (2). In the forequoted Sub-rule (2) the two expressions (i) 'who ought to have been joined' and (ii) 'whose presence before the Court may be necessary' indicate that there are two categories of parties : (a) necessary party as indicated by the expression 'ought to have been joined' and (b) proper party as indicated by the expression 'whose presence before the Court may be necessary'. The Court has no jurisdiction or power to add a person as a party who is neither a necessary party nor a proper party. We have, therefore, to examine whether the applicants fall in either of these categories.
6. We shall first deal with the question of necessary party.
7. For determining the question who is a necessary party, there are no tests enumerated in the forequoted Order 1, Rule 10. The question has to be determined in each case on its own facts, bearing in mind the relevant provisions of law under which the claim is made. The discussion about the necessary or indispensable parties in 'Corpus Juris Secundum' Vol. XXX under the heading 'B. Necessary or Indispensable Parties' reflects on the tests for determination as to who is a necessary party. The relevant [portions of this can be beneficially quoted herein-below :--
' 142. Statement of Rule.--Necessary or indispensable parties are those without whom the Court will not proceed to any decree, even as to tihe parties before it. Included in this class are all persons who have an interest in the controversy of such a nature that a final decree cannot be made without either affecting their interests or leaving the controversy in such a condition that its final determination may be wholly inconsistent with the equity and good conscience. Necessary or indispensable parties are those without whom the Court will not proceed to any decree, even as to the parties before it. This class includes all persons who have an interest in the controversy of such a nature that a final decree cannot be made without either affecting their interests or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience. Accordingly, persons whose interests will necessarily be affected by any decree that can be rendered are necessary and indispensable parties, and the Court will not proceed to a decree without them, while parties whose interests will not be affected by the decree sought, although they may have an interest in the subject-matter, are not ordinarily necessary parties, although, as shown infra 146-148, they may sometimes be proper parties under the general rule, in order to avoid a multiplicity of suits. Therefore, the object rather than the subject of the suit must be looked to, and only those are necessary parties whose rights are involved in the purpose of the bill, and the prayer for relief is also important in determining the requisite parties, as one need not be made a party against whom no relief is demanded, provided his rights will not necessarily be affected. All those against whom reliefis prayed are necessary parties, and persons whose rights will be affected by the decree are necessary parties, although no relief is prayed against them. The term 'necessary parties' also includes persons who, while not necessary or indispensable on account of their own interest, yet are so connected with the subject-matter of the controversy that it is necessary to have them before the Court for the proper protection of those whom the decree will necessarily and directly affect A defendant cannot be required to litigate questions which primarily and directly involve issues with third person not before the Court.'
The decision in Razia Begum v. Anwar Begum, AIR 1958 SC 886 by their Lordships of the Supreme Court also throws a light on the question as to who is a necessary party. From the relevant observations which shall be reproduced hereinafter, it ig discernible that the necessary party is that in whose absence the suit cannot be effectually disposed of. The relevant observation from the aforesaid decision is reproduced hereinbelow :--
'He rightly pointed out, and there was no controversy between the parties before us, that the added defendants do not come within the purview of the words 'who ought to have been joined' which apparently have reference to necessary parties in the sense that the suit cannot be effectively disposed of without their presence on the record.'
8. The Allahabad High Court in a Full Bench decision in Benaras Bank v. Bhagwandas, AIR 1947 All 18 (FB) had laid down the tests for determining the question as to who is a necessary party to a proceeding which were approved by their Lordships of the Supreme Court in Dy. Commissioner v. Rama Krishna, AIR 1953 SC 521 and these tests are as under :--
(i) There must be a right to some relief against such party in respect of the matter involved in the proceedings in question,
(ii) It should not be possible to pass an effective decree in the absence of such a party.
Thus, bearing in mind the aforesaid tests, discussed hereinabove, the irresistible conclusion is that the applicants are not the necessary parties for the reasons to follow.
9. The suit is for the specific performance of the contract entered into between the non-applicant No. 1 and non-applicant No. 2, the applicants are notparties to the contract. Neither the non-applicant No. 1 has sought any relief against the applicants, nor there is any right of relief against these applicants on the basis of the contract entered into between the non-applicant No. 1 and non-plicant No. 2 which is the subject-matter of the suit. The decree sought is for the performance of the contract and it cannot be said that such a decree cannot be passed in absence of the applicants. At this stage, it would be relevant to refer to Section 19 of the Specific Relief Act which reads as under :--
'19. Relief against parties and persons claiming under them by subsequent title.-- Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against-
(a) either party thereto;
(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;
(c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant;
(d) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;
(e) when the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company:
Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract.'
10. The applicants are not claiming under the non-applicant No. 2. On the contrary, their claim is adverse to the title of the non-applicant No. 2 and, thus, these applicants do not fall in any of the categories enumerated in the forequoted Section. This Section is exhaustive on the question as to who are the parties against whom a contract for a specific performance may be enforced. If these applicants are added as parties to the suit, it would tantamount to the conversion of the suit, into a title suit, deciding the title inter se the non-applicant No. 2 and the applicants.
11. The same is the view taken by a Division Bench of the Calcutta High Court in Prem Sukh Gulgulia v. HabibUllah, AIR 1945 Cal 355 the relevant observation whereof is reproduced herein-below :--
'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 volunteer, or if a purchaser for value, had purchased with notice of the contract. A person who claims adversely to the vendor is, however, not a 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 discharge 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 the vendor. This is on the principle that the scope of a suit for specific performance of 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 stranger of the contract.'
The Judicial Commissioner, Tripura has also taken the same view in Kshetra Mohan v. Mohd. Sadir, AIR 1964 Tripura 16.
12. In view of the above discussion, we are of the opinion that the applicants are not necessary parties to the suit.
13. Now, we will turn to the discussion whether these applicants are proper parties. The governing expression for deciding the question of proper party is 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. Thus, the question of proper parties has also to be decided, bearing in mind the scope of the suit. The question involved in the suit is the enforceability of the contract entered into between the parties. If these applicants are introduced as party in the suit, the scope of the suit, as already observed hereinabove would be enlarged and it would be turned into a suit for title. For effectually and completely adjudicating upon the rights be-tween the non-applicants Nos. 1 and 2 based on the contract, the presence of these applicants is not at all necessary. We cannot be oblivious of the legal position also that the judgment in the suit would be a judgment inter partes and not a judgment in rem and as such, it would be operative only between the parties. Therefore, the expression 'all the questions involved in the suit' can very well be said to mean the questions as between the parties to the litigation. The scope of the suit cannot be widened. The judgment in this suit is not going to affect the title of the applicants, if any. The plaintiff is the dominus litus and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law and, as already discussed herein-above, these applicants are not necessary parties and as such, the plaintiff cannot be forced upon to join them as parties. The argument that to avoid the multiplicity of the suit, it would be proper to join these applicants as parties, though attractive, but with no substance. Merely on this ground, a party which does not fall within the scope of the aforesaid expression which governs the question of determining as to who is a proper party cannot be joined as proper party. If this is taken as the only test, in any litigation, no party can be termed as an 'improper party' even if its addition in effect is to compel the plaintiff to enlarge or change the nature of his suit.
14. In the light of the aforesaid discussion, it can well be said that the applicants are not proper parties. This Court has also, in a single Bench decision in Nagi v. Damodhar Jagobaji, AIR 1948 Nag 181 relying on Calcutta High Court's decision in Prem Sukh Gulgulia v. Habib Ullah, AIR 1945 Cal 355 (supra) had taken a view that in a suit for specific performance of a contract, the strangers to the contract are neither necessary nor proper parties. The relevant observation is reproduced :--
'I respectfully follow these cases and hold in the present case that since defendants 3 and 4 (applicants here) have set up an independent title the proper course for the learned trial Judge was to order that they be discharged. The plaintiffs after perfecting their title by obtaining specific iperformance against the executants of the agreement would be in a position to bring a fresh suit against anybody who stood in the way of obtaining possession. At the present time it is not possible in this suit to investigate thetitle which defendants 3 and 4 are setting up. Such a cause of action cannot be joined in a suit for specific performance of contract.'
15. In the light of the aforesaid discussion, we do not agree with the view taken by Krishnan, J. (as he then was) in Roopkishore v. Tarabai, 1970 MPWR (SN) 132 (supra). The learned Judge has based his view on the ground that if the person claiming adversely to the vendors are not joined as parties in the suit, there would be a problem of possession and therefore, in the interest of the purchaser plaintiff and to avoid the multiplicity of suits, he is a proper party. But, in our opinion, these are not the valid considerations. If the plaintiff, even after notice of claim of title hostile to his vendor by an inter-vener, does not want to join the inter-vener, he takes the risk. He cannot be forced upon to join the intervener. We are in agreement with the view taken by Bhar-gava, J. (as he then was) in Gananandrao 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 is 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 Order 1, Rule 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 inter-veners had prayed for being joined as a party.
16. The question referred to us is :
'Whether in a suit for specific performance of a contract for sale, a third Person intervener, 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 a claim adverse to the title of the defen-dant (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.
17. Before parting with this Order, we would like to record our thanks to Shri H. G. Mishra, Advocate, who waspresent at the time of hearing of this case in the Court and though was not representing either of the parties, assisted the Court by pointing out most of the decisions, referred to hereinabove.
18. The case shall now be placed before the single Judge for disposal of the revision.