Misjoinder of parties does not invalidate a suit against a necessary party; courts have discretion in granting specific performance based on established agreements.

JUDGMENT :

(A. Badharudeen, J.)

Defendant Nos.1 and 2 in O.S.No.62/2009 on the files of the II Additional Sub Court, Thiruvananthapuram, assail decree and judgment in the above case in this appeal filed under Section 96 r/w Order XLI Rule 1 of the Code of Civil Procedure, 1908 (for short, ‘the C.P.C.’ hereinafter). The sole plaintiff is the respondent herein.

2. Heard the learned counsel for the appellants/defendants and the learned counsel appearing for the respondent/plaintiff, in detail. Perused the trial court records.

3. I shall refer the parties in this appeal as ‘plaintiff’ and ‘defendants’ with reference to their status before the trial court, hereafter.

4. Bereft of unnecessary embellishments, the case of the plaintiff is that defendant Nos.1 and 2 along with Sri.Better Joy, nephew of the 1st defendant, who owned and possessed plaint A schedule property, having an extent of 22 cents, agreed to sell the property in favour of the plaintiff and accordingly, initially on 18.2.2007, an agreement was executed in this regard by fixing the total value of the property at Rs.4 Lakh, out of which, Rs.25,000/-(Rupees Twenty Five Thousand only) was paid as advance sale consideration. Again, the agreement was renewed on 18.4.2007 and the defendants received Rs.40,000/- (Rupees Forty Thousand only). Thereafter, on 26.4.2007, the defendants along with Sri.Better Joy jointly executed a sale deed in favour of the plaintiff with respect of 10 cents of property in their joint ownership and during execution of sale deed No.1314/2007, Rs.3,60,000/-(Rupees Three Lakh Sixty Thousand only) (in installments) out of Rs.4 Lakh towards the agreed sale consideration was accepted by the defendants on getting the same endorsed on the overleaf of the agreement dated 18.4.2007. Since there was failure to execute the remaining extent of property scheduled as ‘B’ in the plaint, the above suit was filed.

5. Defendants filed joint written statement inter alia admitting the execution of agreement. The contention raised by the defendants further is that, since plaint B schedule is the property belongs to the 2nd defendant, the 1st defendant is not a necessary party and therefore, the suit is bad for misjoinder. At the same time, it is contended that since Sri.Better Joy is not arrayed as a defendant, the suit is bad for non-joinder. According to the defendants, the sale deed in respect of plaint B schedule property could not be executed because of the failure of the plaintiff to arrange the balance sale consideration, though the 2nd defendant has been ready to execute the sale deed.

6. Trial court raised necessary issues and recorded evidence. PW1 was examined and Exts.A1 to A12 were marked on the side of the plaintiff. No evidence let in by the defendants. Thereafter, the trial court granted decree as under:

In the result, the suit is decreed on the following terms:-

1. The 2nd defendant shall execute a deed of sale with respect to the plaint B schedule property in favour of the plaintiff after receiving the balance consideration of Rs.40,000/- (Rupees forty thousand) from the plaintiff within a period of three months from the day instant.

2. On failure, the plaintiff is allowed to deposit the balance sale consideration before the court within one month if not deposited yet, and to get executed the sale deed and possession through court

3. Considering the facts and circumstances, parties are directed to bear their respective costs.

7. The learned counsel for the defendants argued that filing of suit against the 1st defendant for non-performance of contract by the 2nd defendant is bad in law and thereby, the suit must fail on the ground of misjoinder. It is argued further that, since the suit is not properly instituted and a party wrongfully impleaded in the suit, the same should have been dismissed by the trial court, finding misjoinder. By referring ground No.D of the appeal memorandum, the learned counsel for the defendants submitted that even this aspect is known t