Back
Andhra Pradesh High Court
Judges : PUNNAIAH
RAMESH CHANDRA SARADA - Appellant
Versus
PHOOLCHAND SONI - Respondent
C.R.P. No.983/80
Decided On : 02-23-81
Advocates Appeared :
.
HELD: If the proposed party has direct legal interest in the subject matter of the litigation he should be added, so that the material question can be decided once for all without driving the parties to resort to multiplicity of suits. In view of the intendment of the Legislature that all the questions involved in the suit should be effectually add completely adjudicated upon, it is necessary that all the parties who are interested in such dispute should be brought before the court is satisfied that the party sought to be added in the suit has legal interest in the subject matter of the suit the Court should accede to the request of the party instead of refusing to grant permission on the ground that the plaintiff is do minus lit us and takes the risk of any defect in the frame of the suit and that he cannot be compelled by the court to fight a defendant sought to be imp leaded in the suit against his wishes and against whom the plaintiff does not want any relief and also on the ground that Judgment can be rendered between the parties to the suit and the parties sought to be imp leaded can file separate suits even though their interests in the property are involved in the suit. Order 1, Rule 10(2) is framed to ensure that the dispute must be finally adjudicated in the presence of all the parties interested without delay and expenses of several actions and trials in conclusive adjudications.
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, 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. Further it cannot be said that the stranger is concerned with the relief sought or the Defence raised. He not being a party and being a total stranger any decision in the parties 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 a suit for specific performance on the basis of an agreement of sale, there is no necessity to determine the question of vendor has and the purchaser acquires title even if it is defensible by a third party. Hence a third party other than the vendor needs not be imp leaded. In so far as adding of the parties are concerned, it is the provision s of order 1, Rule 10(2) that governed all the suits and Proceedings and the benefit given by the Legislature can be applicable even to a suit for specific performance if the party, sought to be imploded satisfies the requirements of Rule 10(2) of order l, and it cannot therefore, be said that it has no application to a suit for specific performance. No such discrimination is contemplated in the application of order 1, Rule 10(2).
C.R.PS. DISMISSED
( 1 ) IN these revisions, the orders of the V Additional Judge, City Civil court, Hyderabad in I. A. No. 916/1979 and I. A. No. 962/1978 in O. S, no. 589/77 are assailed,
( 2 ) THE suit was filed by the petitioner herein for specific performance of an agreement of sale executed by the 2nd respondent who is the defendant in the suit and for possession of the ground floor of the building. The defendant put the plaintiff in possession of the first floor in pursuance of the agreement of sale. Phoolchand Soni (1st respondent in C. R. P. No. 983/80) the biother of the defendant filed I. A. No. 916/79 praying that he should be impleaded as party on the ground that the party belonged to the joint family and he has got equal share with the defendant in the property as member of the joint family. Smt. Kami Bai (1st respondent in G. R. P. No. 984/80) the lister of the defendant also filed I. A. No. 962/78 praying that she should be impleaded in the suit on the ground that the property belonged to their father and she is entitled to l/6th share. The learned Additional Judge allowed both the petitions holding that the parties sought to be impleaded have interest in the property which is the subject-matter of the suit. Aggrieved with the said orders in I. A. Nos 916 of 19 79, and 962 of 1978, the plaintiff preferred these two revisions.
( 3 ) SRI. Sarathi, the learaed counsel for the petitioner-plaintiff contends that he filed the suit for specific performance on the foot of an agreement of sale to which the plaintiff and the defendant are parties and the suit will be decreed on the basis of the terms of the agreement against the defendant only and hence the proposed parties are not necessary or proper parties and they need not be impleaded. In support of his contention, he relied upon the decisions of Madras High Court in Palanisamy vs Komara Chettlar, Andhra pradesh High Court in M. A. H. Khan vs. A. M. Khadri, Bombay High court, in E. Ajay Kumar Vs. Tulasibai and the Gujarat High Court, in Rasiklal vs. Natverlal
( 4 ) SRI. K. F. Baba, the learned counsel for the respondents, in both the revisions, on the other hand, contends that the proposed parties have got equal shares with the defendant in the suit property and in fact a suit for partition was also filed and in that suit the proposed parties are also defendants and the contention of the proposed parties that they have got equal shares in the suit property is not mere assertion, but is strengthened by the suit for partition and hence they are proper parties if not necessary parties and they should, therefore, be impleaded in the suit O. S. No. 588/77, so that the suit for specific performance cannot be decreed as against their shares in the suit property.
( 5 ) ORDER 1 Rule 10 (2) C. P. C. permits the court to implead any person either as plaintiff or defendant, if his presence before the court is necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. Sub rule (2), therefore, provides for addition of necessary or proper parties. There is an essential distinction between necessary and proper parties to a suit. Necessary parties are parties in whose absence no effective decree can be passed. Props, parties are parties whose presence is proper to enable the Court to adjudicate more effectively and completely. In either case the party sought to be impleaded must have direct interest in the subject-matter of the suit.
( 6 ) IN a leading case in Moses vs. Marsden it was laid down that the court has jurisdiction to add as a party-defendant only a person who is directly interested in the subject-matter of the litigation and not a person who will be only indirectly or commercially affected. Ray, L. J. , who agreed with lindley, L. J. in that case observed that the relevant rule of the Supreme court, on its proper construction, authorised the court to add only such persons as would be bound by the
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
