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Sadhu Behera and ors. Vs. Krishna Chandra Sutar and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 17 of 1983
Judge
Reported inAIR1985Ori93; 1985(I)OLR38
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10 and 10(2)
AppellantSadhu Behera and ors.
RespondentKrishna Chandra Sutar and anr.
Appellant AdvocateMohadev Misra, Adv.
Respondent AdvocateR.N. Sutar, Adv.
DispositionPetition dismissed
Cases ReferredMt. Nagi v. Damodhar Jagobaji Tidke
Excerpt:
.....[new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 1 having failed to complete the sale, the suit for specific performance of a contract for sale was filed. 3. the position is well settled that a person is a necessary party if in his absence, no effective decree can be passed. this is however, not to saythat the right of the plaintiff is absolute in all circumstances since the principle is well accepted that it is subject to the court's discretion vested under order 1, rule 10, c......material for the purpose of the present proceeding are that the opposite parties 1 and 2 filed title suit no. 64 of 1981 for a decree of specific performance of a contract for sale of the lands described in the schedule to the plaint. in the plaint they alleged inter alia that opposite parties 3 to 5 (defendants 1 to 3) constituted a joint family with the opposite party no. 3 (defendant no. 1) as karta. in his capacity as karta of the family the said defendant executed an agreement for sale ofthe case land in favour of the plaintiffs on 15-4-1978. they further alleged that the case land originally belonged to one pyran bibi who transferred the same in favour of opposite party no. 3 and his cousins, sadhu, radhu and jadu, the petitioners in the revision petition, by a permanent lease.....
Judgment:
ORDER

D.P. Mohapatra, J.

1. The short question for decision in this case is 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. The question having been answered in the negative by the Court below, the intervenes have filed this revision petition challenging the order.

The facts material for the purpose of the present proceeding are that the opposite parties 1 and 2 filed Title Suit No. 64 of 1981 for a decree of specific performance of a contract for sale of the lands described in the schedule to the plaint. In the plaint they alleged inter alia that opposite parties 3 to 5 (defendants 1 to 3) constituted a joint family with the opposite party No. 3 (defendant No. 1) as Karta. In his capacity as Karta of the family the said defendant executed an agreement for sale ofthe case land in favour of the plaintiffs on 15-4-1978. They further alleged that the case land originally belonged to one Pyran Bibi who transferred the same in favour of opposite party No. 3 and his cousins, Sadhu, Radhu and Jadu, the petitioners in the revision petition, by a permanent lease deed dated 30-6-1944. Though the cousins of opposite party No. 3 were shown to be the joint purchasers yet none of them actually possessed the property. The plaintiff No. 1 who was originally inducted as a monthly tenant in respect of the case house contracted with defendant No. 1 for purchase of the same and continued to be in peaceful possession of the property on the basis of the agreement and delivery of possession. The said defendant No. 1 having failed to complete the sale, the suit for specific performance of a contract for sale was filed.

2. During the pendency of the suit, the petitioners filed an application for being impleaded as defendants in the suit alleging inter alia that on the plaintiffs' own showing they are the co-owners in respect of the suit property. A proceeding under the Orissa House Rent Control Act was instituted by them since the plaintiff defaulted in payment of rent and the petitioners require the case house for their own occupation. In the meanwhile, the plaintiff has managed to win over the defendant No. 1 and the two in collusion with each other are trying to deprive the petitioners of their legitimate rights in order to avoid multiplicity of proceeding the petitioners pleaded that they should be impleaded as defendants in the suit. As already stated the Court below rejected the application.

3. The position is well settled that a person is a necessary party if in his absence, no effective decree can be passed. He is a proper party if his presence is necessary for effectual and complete adjudication. This is the principle embodied in Order 1, Rule 10(2), C.P.C. which runs as follows : --

'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 the Court may be necessary in order to enable, the Court effectually andcompletely to adjudicate upon and settle all the questions involved in the suit.'

In the present case it is conceded that the interveners-petitioners are not necessary parties since it cannot be said that no effective decree can be passed in the suit in their absence. Therefore, the question that remains to be considered is whether they are proper parties. For this the test that is to be applied is whether the presence of the absentee parties shall be necessary in order to enable the Court to effectually adjudicate upon and settle all questions involved in the suit. As already noticed the sole prayer in the suit is to pass a decree for specific performance of a contract for sale of the lands decribed in the schedule within the time fixed by the Court against the defendants, failing which the same be executed by the Court in favour of the plaintiffs. There is no prayer for possession in the suit. Hence, the subject matter for consideration in the suit relates to the enforceability or otherwise of the contract said to have been entered into between the plaintiffs and defendants. The interveners who are admittedly third parties to the contract are not concerned with the subject matter of the suit. The question of proper parties has to be decided bearing in mind the scope of the suit. If the applicants are introduced as parties in the suit, the scope of the suit would be enlarged and it would be turned into a suit for title. For effectually and completely adjudicating upon the rights between the parties to the suit, based on the contract, the presence of the petitioners is not at all necessary. It is pertinent to note here that the judgment in the suit would be a judgment inter partes and not judgment in rem and as such, it would be operative only between the parties. The argument that to avoid multiplicity of proceedings, it would be proper to join these petitioners as parties has no substance since merely on this ground, a party which does not fall within the scope of the expression which governs the question of determining as to who is a proper party cannot be joined as proper party to the suit. 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. To this extent it has to be recognised that 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. This is however, not to saythat the right of the plaintiff is absolute in all circumstances since the principle is well accepted that it is subject to the Court's discretion vested under Order 1, Rule 10, C.P.C.

4. The observations made above gain support from several decisions some of which are discussed hereunder :

An identical question came up for consideration of a Full Bench of Madhya Pradesh High Court in the case of Panne Khushali v. Jeewanlal Mathoo Khatik, AIR 1976 Madh Pra 148, where the court had a reference to several decisions held that the third party to the contract sought to be specifically enforced is neither a necessary party nor a proper party to the suit.

A similar view was taken in the case of Rasiklal Shankerlal Soni v. Natverlal Shankerlal Upadhyaya, AIR 1975 Guj 178, wherein it was held that when the plaintiff is willing to take the title which his vendor had and no relief for possession of the suit property was claimed nor was there any relief claimed against the applicants. The latter 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 AIR 1950 Mad 91 (N. T. Palanisamy Chettiar v. Komara Chettiar) it was held that in an application under Order 1, Rule 10, Civil P. C the Court should consider mainly whether the presence of the proposed parties would be necessary for adjudicating upon the question 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 question involved in the suit. It was further held that where a plaintiff sues for specific performance of an agreement to sell impleading only the vendors and there is no allegation in the plaint that the agreement is binding on the sons of the vendors, the title of the vendors or the right of their sons to the properties agreed to be sold is not a question involved in the suit and therefore the sons of the vendors are not necessary parties to the suit and cannot be joined merely for avoiding multiplicity of suits.

In AIR 1964 Tripura, 16 (Kshetra Mohan Nath Sarma v. Mohamad Sadir), the Court held that to a suit for specific performance ofa contract of sale brought under Section 27 of the Specific Relief Act, 1877, against the defendant who has entered into the contract wherein the plaintiff has not prayed for possession of the property but only for the execution of the document of sale and its registration, persons who claim anterior title to the property even before the agreement for specific performance was entered into with the defendant are neither necessary nor proper parties and hence they cannot insist that the plaintiff should make them parties and thereby convert the suit for specific performance into one title and introduce matter in the suit which are quite foreign for obtaining the relief prayed for in the suit.

In the case of Mt. Bindru v. Sada Ram, AIR 1960 J. and K. 67 it was held by the Court that a party cannot be added under Order 1, Rule 10, C.P.C. in order to enable him to import an altogether new cause of action into the pending litigation; the addition of the new party must be consistent with the scope and the setting of the pending litigation. The nature and the character of the suit must not be sought to be altered by the addition of a new party.

The Bombay High Court in the case of E. Ajay Kumar v. Smt. Tulsabai, AIR 1973 Bom 330 the Court while considering a similar question observed that if the defendant against whom such a suit is filed has a defective title but agreement is properly enforceable, the plaintiff may choose to take even the defective title in such a suit. Similarly, there must 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 entitled to the property as such can come before the Court either as necessary or proper party. The Court further observed that it cannot be said that the stranger is concerned with the relief sought or the defences raised. He not being a party and being a total stranger, any decision inter partes would not affect his right. It follows that there would be no prejudice to such a party. The Court is not settling any disputes between the plaintiff and the stranger and as such the presence of such a person is neither necessary nor of any aid to decide upon the controversy.

In the case of Mt. Nagi v. Damodhar Jagobaji Tidke, AIR 1948 Nag 181, Hidayatullah, J. (as he then was) held that scope of a suit for specific performance of an agreement for saleof land coupled with a prayer for possession cannot be enlarged and the suit turned also into a title suit. Hence stranger setting up an independent title to the land, the subject-matter of the contract of sale are not proper parties to the suit for specific performance. The plaintiffs after perfecting their title by obtaining specific performance 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.

5. In view of the principles laid down in the aforesaid decisions wherein in similar circumstances in a suit for specific contract for sale it has been held that the third parties to the contract are not necessary parties, with which I am in respectful agreement, no exception can be taken to the exercise of the jurisdiction by the Court below in rejecting the applications of the petitioners to be impleaded as parties.

6. In the result, the revision petition fails and the same is dismissed as devoid of merit. There will be no order as to costs of this proceeding.


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