The main legal point established in the judgment is that the discretionary power to add parties under Order 1 Rule 10 of the Code of Civil Procedure should be exercised to ensure the effective adjudication of the suit, and parties seeking impleadment must satisfy the tests of being necessary and proper parties.

ORDER :

1. Heard leaned advocate Mr. S. P. Majmudar for the petitioners, learned Senior Advocate Mr. Dhaval C. Dave with learned advocate Mr. Jigar M. Patel for respondent Nos.3 to 5 and learned advocate Ms. Pooja H. Bhardwaj for K. J. Brahmbhatt for respondent No.2.

2. Upon joint request and consent of learned advocates for respective parties, this matter is taken up for final hearing.

3. By way of this petition under Article 227 of the Constitution of India, the present petitioners have prayed for the following reliefs.

“(A)The Hon’ble Court be Court be pleased to quash and set aside the impugned order dated 18.06.2016 passed below Exhibit 26 in Special Civil Suit No.447 of 2014 by the 16th Additional Senior Civil Judge, Surat.

(B) During pendency and final disposal of the present petition the Hon’ble Court be pleased to stay any further proceedings in Special Civil Suit No.447 of 2014 before the 16th Additional Senior Civil Judge, Surat.

(C) ...xxx”

4. Brief facts of the case are as under.

4.1. The petitioners original plaintiffs have filed Special Civil Suit No.447 of 2014 against the present respondent Nos.1 and 2 for a relief of specific performance of the agreement to sell dated 14.08.2013 and sauda chitti dated 26.07.2013 and for other consequential reliefs. The suit property which is bearing Survey No.34/D of Village Ved having T.P. Scheme No.50, belongs to the ownership of respondent Nos.1 and 2. The respondent No.1 is an individual party and respondent No.2 is HUF. During the pendency of the suit, the respondent Nos.3 to 5 herein filed an application below Exhibit-26 under Order 1 Rule 10 of the Code of Civil Procedure, 1908 and sought a relief to be impleaded as defendants in the said suit. Respondent No.3 is wife of defendant No.2-Nainesh Jayantilal Vadiwala and respondent Nos.4 and 5 are children of respondent Nos.2 and 3. The application was contested and the learned 16th Additional Senior Civil Judge, Surat allowed the said application and respondent Nos.3 to 5 were directed to be added as defendants.

4.2. Being aggrieved and dissatisfied with said order, present petitioners are before this Court.

4.3. The undisputed fact is that the suit property is owned by the respondent Nos.1 and 2 jointly and out of which the respondent No.2 is HUF being represented by the Karta Nainesh Jayantilal Vadiwala. Respondent Nos.3 to 5 are the members of HUF family and they are co-parceners in the said HUF. The suit property was proposed to be alienated by an agreement to sell dated 14.08.2013.

5. Leaned advocate Mr. S. P. Majmudar for the petitioners has submitted that the learned trial Judge has committed gross error of law. Respondent Nos.3 to 5 have no privity of contract with the petitioners-original plaintiffs and the agreement to sell was executed by respondent Nos.2 and 3 in capacity of Karta and Karta has every right to sell or alienate the property belongs to the HUF. It is submitted that the respondent Nos.3 to 5 are not necessary and proper parties and instead of being impleaded in the suit, the proposed parties should have filed a separate suit for their assertion of rights in the suit property. It is further submitted that in the agreement to sell, the factual aspect regarding the loan being taken on the suit property is mentioned and after the property is released from the charge, title clearance may be obtained. Thus, there was a clear legal necessity for selling the property. It is further submitted that while adding the respondent Nos.3 to 5 as defendants in the suit and looking to the contentions as raised by the respondent Nos.3 to 5, if the application is allowed, it would amount to change in the nature of the suit. The original suit is more specific performance of the agreement to sell and Sauda Chitthi, whereas by adding respondent Nos.3 to 5 as defendants, the suit would be converted into a title suit, which is not permissible under the law. In view of catena of decisions relied upon by the learned advocate