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IN THE HIGH COURT OF BOMBAY
Masodkar B.A., J.
Appellants: E. Ajay Kumar
Vs.
Respondent: Tulsabai and Anr.
Civil Revn. Appln. No. 25 of 1973 Decided On: 09.03.1973
Counsels:
For Appellant/Petitioner/Plaintiff: V.R. Padhye, Adv.
For Respondents/Defendant: J.N. Khare and V.S. Kanitkar, Advs.
ORDER 1, RULE 10, CIVIL PROCEDURE CODE - SPECIFIC PERFORMANCE SUIT - JOINDER OF PARTIES - STRANGER TO AGREEMENT CANNOT BE ADDED AS PARTY - NO DIRECT OR INDIRECT INTEREST IN CONTROVERSY.
Fact of the Case:
Plaintiff filed a suit for specific performance of an agreement to sell agricultural land. Defendant, Tulsabai, entered into an agreement with the plaintiff to sell the land. Nandlal, a non-applicant, filed an application to be impleaded as a co-defendant, claiming an interest in the property and alleging that Tulsabai was incompetent to enter into the agreement.
Finding of the Court:
The court held that Nandlal, being a stranger to the agreement, had no direct or indirect interest in the controversy and could not be added as a party to the suit. The court further held that the joinder of Nandlal would enlarge the controversy and introduce an independent nature, which was not permissible in a suit for specific performance.
Issues: Whether a stranger to an agreement can be added as a party to a suit for specific performance.
Ratio Decidendi: The court relied on the provisions of Order 1, Rule 10, Civil Procedure Code, which empowers the court to add parties who ought to have been joined or whose presence may be necessary to adjudicate upon the matters in issue. The court held that the rule requires the party to be joined to have a direct or indirect interest in the controversy, which Nandlal did not have.
Final Decision: The court allowed the revision application and set aside the order of the trial court impleading Nandlal as a co-defendant. The court also dismissed Nandlal's application for joinder.
2. The plaintiff sued on the allegations that on May 8, 1971, defendant agreed to sell agricultural lands for consideration fixed at the fixed at the rate of Rs. 2,300/- per acre. Plaintiff was put in possession after Rs. 10,000/- out of the consideration were paid to the defendant. Some other agreement of June 5, 1971, is pleaded by the plaintiff, calling it to be an additional agreement. It is further alleged that the plaintiff served a notice for the purpose of completing the transaction but by a reply dated January 10, 1972, the defendant has denied the terms and conditions stated in the agreement as per paragraph 3 of the plaint. The plaintiff has pleaded the further course of events and alleged that it is defendant who is resiling from the contract and is not executing the sale-deed in favour of the plaintiff, though he is willing to complete the transaction. Some proceedings under Order 39, Rule 1, Civil P. C. also appear to have been taken. The defendant appears to have filed written statement and is opposing the claim of the plaintiff as laid.
3. However, non-applicant No.2 here, one Nandlal, filed an application in this suit on September 2, 1972, which was taken as Exhibit 26. He alleged that he has interest in the property and Tulsabai, i.e. the defendant, was incompetent to enter into an agreement of sale in favour of the plaintiff. he further submitted that he is a necessary party in this suit.
4. Though the application filed at Exhibit 26 thus disclosed some interest of Nandlal, the plaintiff chose and still continues to choose, not to add him as a party in this litigation.
5. On the contrary, the plaintiff opposed the application for joinder as co-defendant by a applicant Nandlal on the ground that in a suit filed for specific performance of an agreement to sell. Nandlal has no locus standi nor the Court had jurisdiction to direct that said Nandlal should be added as a co-defendant.
6. By the impugned order, however, the learned Judge took the view that Nandlal is complaining that this agreement of sale affects his rights in property and his presence would be necessary while deciding the disputes between the parties that would also avoid multiplicity of suits. While appreciating the relevant submission, the learned Judge has taken into account what Nandlal relies upon, being a registered sale deed dated April 24. 1965. The learned Judge, upon this view directed the plaintiff to amend the plaint so as to add Nandlal as a co-defendant.
7. Against this order, the present revision has been filed.
8. The power of the Court to add parties in such matters is referable to Order 1, Rule 10, Civil Procedure code. 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 ex facie 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 provision 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.
9. Now, in the present case, it is a 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 t
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