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1984 Supreme(Cal) 104
High Court of Calcutta
S.N. Sanyal, J.
Gour Hari Das – Appellant
Versus
Bimal Kumar Giri – Respondent
Decided On : March 27, 1984
Nirmalendu Patra, Pritishree Maity, Sudhangshu Nath Ganguli
In a suit for specific performance of contract, a co-sharer claiming pre-emption rights over the suit property is not a necessary or proper party.
Headnote:
ORDER 1 RULE 10 OF THE CODE OF CIVIL PROCEDURE - ADDITION OF PARTIES - NECESSARY OR PROPER PARTY - SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT - CO-SHARER CLAIMING PRE-EMPTION - NOT A NECESSARY OR PROPER PARTY.
Fact of the Case:
The plaintiff filed a suit for specific performance of contract against the defendants. The defendant no. 3, a co-sharer, filed an application under Order 1 Rule 10 of the Code of Civil Procedure to be added as a defendant, claiming pre-emption rights over the suit property.
Finding of the Court:
The court held that the defendant no. 3 was neither a necessary nor a proper party to the suit, as his presence was not necessary for a proper decision in the suit. The court further held that the learned Munsif acted illegally and with material irregularity in allowing the application under Order 1 Rule 10 of the Code of Civil Procedure.
Issues: Whether the defendant no. 3, a co-sharer claiming pre-emption rights over the suit property, was a necessary or proper party to the suit for specific performance of contract.
Ratio Decidendi: Under Order 1 Rule 10 (2) of the Code of Civil Procedure, the court can add a party who, in the circumstances, is either a necessary party or a proper party. In a suit for specific performance of contract, the question is whether the defendant agreed to sell the suit property to the plaintiff and whether the plaintiff is entitled to a decree for specific performance of contract. The defendant no. 3 was not a necessary party to the suit, as his presence was not necessary for a proper decision in the suit. The court further held that the learned Munsif acted illegally and with material irregularity in allowing the application under Order 1 Rule 10 of the Code of Civil Procedure.
Final Decision: The court made the rule absolute, set aside the impugned order of the learned Munsif, and dismissed the defendant no. 3's application under Order 1 Rule 10 of the Code of Civil Procedure.
1. THIS revisional application is at the instance of the plaintiff and it is directed against an order dated September 2, 1981 passed by the learned Munsif, 1st Court, Contain in O. S. no. 336 of 1980 allowing the application of the opposite party no. 3 under Order 1 Rule 10 of the Code of Civil procedure and adding the opposite party no. 3 as a defendant in the suit. We petitioner filed the suit for specific performance of contract against opposite parties nos. 1 and 2. It was alleged that opposite party no. 1 on March 6, 1977 entered into an agreement for sale in respect of the suit property in favour of the petitioner for a consideration of Rs.3000/- and obtained Rs.2500/- as earnest money. The balance was to be paid at the time of the execution and registration of the sale deed within six months from that date. The opposite party no. 1 refused to execute the sale deed and the petitioner came to learn that the opposite party no. 1 had in the meantime sold the property to the opposite party no. 2 by a registered Kobala. The petitioner thereafter instituted the suit on August 7, 1980 for specific performance of contract. On July 14, 1981 opposite party no. 3 filed an application under order 1 Rule 10 of the Code of Civil procedure for being added as defendant. It was alleged that the suit property was purchased by opposite party no. 2 and the opposite party no. 3 is a co-sharer and as such he has filed an application for pre-emption being Misc. Case no. 42 of 1980 against the opposite party no 2. The said application under Order 1 Rule 10 was opposed by the plaintiff. After bearing both parties the learned Munsif by the impugned order allowed the application under Order 1 Rule 10 of the Code of Civil Procedure and added opposite party no. 3 as defendant. The petitioner has challenged the said order in the present Rule.
2. MR. Patra, learned Advocate for the petitioner, has argued that under Order 1 Rule 10 (2) of the Code of Civil Procedure the Court has power to add a person as a party if he is either a necessary party or a proper party. It has been contended that in the instant case as the suit is for specific performance of contract the opposite party no. 3 is neither a necessary party nor a proper party. The learned Munsif has acted illegally and with material irregularity in exercise of his jurisdiction by allowing the application under Order 1 Rule 10 of the code of Civil Procedure. In support of his contention, Mr. Patra has referred to a Full Bench decision of Madhya Pradesh High Court in PANNE KHUSHALI AND another vs. JEEWANLAL MATHOO KHATIK and ANOTHER reported in A. I. R. 1976 Madhya Pradesh 148. This decision dealt with the provision of Order 1 Rule 10 (2)of the Code of Civil Procedure in connection with a suit for specific performance of contract. It has been held in this decision that under Order 1 Rule 10 (2)of the Code of Civil Procedure the Court has no jurisdiction or power to add a person as a party who is neither a necessary party nor a proper party. It has further been held that in a suit for specific performance of contract for sale, strangers to the contract making claim adverse to the title of defendant (Vendor) contending that they are the co-owners of the contracted property are neither necessary for proper party and are, therefore, not entitled to join as parties to the suit. Mr. Ganguly, learned Advocate for the opposite party no. 3, has argued that opposite party no. 3 has instituted the pre-emption case against opposite party no. 2 on account of a sale made in favour of the opposite party no. 2. It has been further contended that the petitioner has been set up by the opposite party no. 2 to defeat the claim for pre-emption made by the opposite party no. 3. It has been further argued that the opposite party no. 3 has interest in the suit property and as such in order to avoid multiplicity of proceeding opposite party no. 3 should be allowed to contest the suit. Mr. Ganguly has referred to R
