Madan Labana vs Mohseen Bi And Others

Heard finally with consent.

By this miscellaneous petition under Article 227 of the Constitution of India the plaintiff has challenged the order dated 6.9.2017, whereby the

respondent’s application under Order 1 Rule 10 of the CPC for impleadment as defendant has been allowed.

Learned counsel appearing for the petitioner submits that the suit is for specific performance of the contract, therefore, in view of the Full Bench

judgment of this Court in the matter of Panne Khushali and another Vs. Jeewanlal Mathoo Khatik and another reported in 1976 MPLJ 170, co-owners

are not required to be impleaded as they are neither necessary nor proper parties.

As against this, learned counsel for the respondents has supported the impugned order.

Having heard the learned counsel for the parties and on perusal of the record, it is noticed that the petitioner has filed the suit for specific performance

of the contract as against the respondent No.1 Mohseen Bi. Pending the suit the respondents No.2 to 5 had filed an application under Order 1 Rule 10

of the CPC for impleadment on the ground that they are the co-owners of the joint undivided property. The trial Court by the impugned order has

allowed the application on the ground that in the suit the issue if the respondent No.1 was the exclusive owner of the property, had right to execute the

sale agreement, is to be decided therefore, the respondents No.2 to 5 had right to be impleaded for passing the effective decree and avoiding the

multiplicity of proceedings.

The issue relating to impleadment of the co-owners in a suit for specific performance of contract has been decided by the Full Bench of this Court in

the case of Panne Khushali (supra), where the Full Bench has taken the view that the coowners in such suit are neither necessary nor proper parties.

The Full Bench in the case of Panne Khushali (supra) in this regard has held as under:-

“7. For determining the question who is a necessary party, there are no tests enumerated in the forequoted Order 1, Rule 10. The question has to

be determined in each case on its own facts, bearing in mind the relevant provisions of law under which the claim is made. The discussion about the

necessary or indispensable parties in ""Corpus Juris Secundum"" Vol. XXX under the heading ""B. Necessary or Indispensable Parties"" reflects on the

tests for determination as to who is a necessary party. The relevant [portions of this can be beneficially quoted herein-below :--

Statement of Rule.--Necessary or indispensable parties are those without whom the Court will not proceed to any decree, even as to tihe parties

before it. Included in this class are all persons who have an interest in the controversy of such a nature that a final decree cannot be made without

either affecting their interests or leaving the controversy in such a condition that its final determination may be wholly inconsistent with the equity and

good conscience. Necessary or indispensable parties are those without whom the Court will not proceed to any decree, even as to the parties before

it. This class includes all persons who have an interest in the controversy of such a nature that a final decree cannot be made without either affecting

their interests or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.

Accordingly, persons whose interests will necessarily be affected by any decree that can be rendered are necessary and indispensable parties, and the

Court will not proceed to a decree without them, while parties whose interests will not be affected by the decree sought, although they may have an

interest in the subject-matter, are not ordinarily necessary parties, although, as shown infra § 146-148, they may sometimes be proper parties under

the general rule, in order to avoid a multiplicity of suits. Therefore, the object rather than the subject of the suit must be looked to, and only those are

necessary parties whose rights are involved in the purpose of the bill, and the prayer for relief is also important in determining the requisite parties, as

one need not be made a party against whom no relief is demanded, provided his rights will not necessarily be affected. All those against whom relief is

prayed are necessary parties, and persons whose rights will be affected by the decree are necessary parties, although no relief is prayed against them.

The term ""necessary parties"" also includes persons who, while not necessary or indispensable on account of their own interest, yet are so connected

with the subject-matter of the controversy that it is necessary to have them before the Court for the proper protection of those whom the decree will

necessarily and directly affect A defendant cannot be required to litigate questions which primarily and directly involve issues with third person not

before the Court.

The decision in Razia Begum v. Anwar Begum, AIR 1958 SC 886 by their Lordships of the Supreme Court also throws a light on the question as to

who is a necessary party. From the relevant observations which shall be reproduced hereinafter, it is discernible that the necessary party is that in

whose absence the suit cannot be effectually disposed of. The relevant observation from the aforesaid decision is reproduced hereinbelow :--

He rightly pointed out, and there was no controversy between the parties before us, that the added defendants do not come within the purview of the

words ""who ought to have been joined"" which apparently have reference to necessary parties in the sense that the suit cannot be effectively disposed

of without their presence on the record.

The Allahabad High Court in a Full Bench decision in Benaras Bank v. Bhagwandas, AIR 1947 All 18 (FB) had laid down the tests for determining

the question as to who is a necessary party to a proceeding which were approved by their Lordships of the Supreme Court in Dy. Commissioner v.

Rama Krishna, AIR 1953 SC 521 and these tests are as under :-- (i) There must be a right to some relief against such party in respect of the matter

involved in the proceedings in question,

(ii) It should not be possible to pass an effective decree in the absence of such a party.

Thus, bearing in mind the aforesaid tests, discussed hereinabove, the irresistible conclusion is that the applicants are not the necessary parties for the

reasons to follow.

The suit is for the specific performance of thecontract entered into between the non-applicant No. 1 and non-applicant No. 2, the applicants are not

parties to the contract. Neither the nonapplicant No. 1 has sought any relief against the applicants, nor there is any right of relief against these

applicants on the basis of the contract entered into between the non-applicant No. 1 and non-applicant No. 2 which is the subject-matter of the suit.

The decree sought is for the performance of the contract and it cannot be said that such a decree cannot be passed in absence of the applicants. At

this stage, it would be relevant to refer to Section 19 of the Specific Relief Act which reads as under :-- ""Relief against parties and persons claiming

under them by subsequent title.

Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against-

(a) either party thereto;

(b) any other person claiming under him by atitle arising subsequently to the contract, except a transferee for value who has paid his money in good

faith and without notice of the original contract;

(c) any person claiming under a title which,though prior to the contract and known to the plaintiff, might have been displaced by the defendant;

(d) when a company has entered into acontract and subsequently becomes amalgamated with another company, the new company which arises out of

the amalgamation;

(e) when the promoters of a company have,before its incorporation, entered into a contract for the purpose of the company and such contract is

warranted by the terms of the incorporation, the company:

Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract.

The applicants are not claiming under thenon-applicant No. 2. On the contrary, their claim is adverse to the title of the non-applicant No. 2 and,

thus, these applicants do not fall in any of the categories enumerated in the forequoted Section. This Section is exhaustive on the question as to who

are the parties against whom a contract for a specific performance may be enforced. If these applicants are added as parties to the suit, it would

tantamount to the conversion of the suit, into a title suit, deciding the title inter se the non-applicant No. 2 and the applicants.

The same is the view taken by a Division Bench of the Calcutta High Court in Prem Sukh Gulgulia v. Habib Ullah, the relevant observation

whereof is reproduced herein-below :--

The necessary parties in a suit for specific performance of a contract for sale are the parties to the contract, or if they are dead their legal

representatives, as also a person who had purchased the property from the vendor after the contract. He is a necessary party as he would be

affected, if he is volunteer, or if a purchaser for value, had purchased with notice of the contract. A person who claims adversely to the vendor is,

however, not a necessary party. Where the property stands in the name of a person other than the vendor, and the suit for specific performance is

brought by the purchaser, that person may be joined as a defendant as a proper party on an allegation that he is the benamidar of the vendor but if he

appears and contends that he is not the benamidar of the vendor the proper procedure would be to discharge him from the suit, leaving it to the

plaintiff in the suit for specific performance to institute a suit against him after he had got the conveyance in execution of the decree for specific

performance against the vendor. This is on the principle that the scope of a suit for specific performance of a contract for sale ought not to be

enlarged and the suit turned also into a title suit between one of either of the parties to the contract and stranger of the contract.

The Judicial Commissioner, Tripura has also taken the same view in Kshetra Mohan v. Mohd. Sadir, AIR 1964 Tripura 16.

In view of the above discussion, we are of theopinion that the applicants are not necessary parties to the suit.

Now, we will turn to the discussion whetherthese applicants are proper parties. The governing expression for deciding the question of proper party

is whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the

questions involved in the suit. Thus, the question of proper parties has also to be decided, bearing in mind the scope of the suit. The question involved

in the suit is the enforceability of the contract entered into between the parties. If these applicants are introduced as party in the suit, the scope of the

suit, as already observed hereinabove would be enlarged and it would be turned into a suit for title. For effectually and completely adjudicating upon

the rights between the non-applicants Nos. 1 and 2 based on the contract, the presence of these applicants is not at all necessary. We cannot be

oblivious of the legal position also that the judgment in the suit would be a judgment inter parties and not a judgment in rem and as such, it would be

operative only between the parties. Therefore, the expression ""all the questions involved in the suit"" can very well be said to mean the questions as

between the parties to the litigation. The scope of the suit cannot be widened. The judgment in this suit is not going to affect the title of the applicants,

if any. The plaintiff is the dominus litus and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule

of law and, as already discussed hereinabove, these applicants are not necessary parties and as such, the plaintiff cannot be forced upon to join them

as parties. The argument that to avoid the multiplicity of the suit, it would be proper to join these applicants as parties, though attractive, but with no

substance. Merely on this ground, a party which does not fall within the scope of the aforesaid expression which governs the question of determining

as to who is a proper party cannot be joined as proper party. If this is taken as the only test, in any litigation, no party can be termed as an 'improper

party' even if its addition in effect is to compel the plaintiff to enlarge or change the nature of his suit.â€​

The issue which the petitioner is raising is concluded in his favour by the aforesaid full bench judgment.

Learned counsel for the respondents has placed reliance upon the judgment of the Supreme Court in the matter of Richard Lee Vs. Girish Soni and

another reported in (2017) 3 SCC 194 but in that case the suit for eviction from a shop in which the partnership firm was carrying on business, was

filed and the issue was whether tenancy of shop was created in favour of an individual or in favour of the firm, hence it was held that for proper

adjudication of the issue in eviction petition both, the firm and all its partners, should be arrayed as parties for complete determination of the suit, but

the present case stands on different footing. Similarly counsel for the respondent has placed reliance upon the judgment of the Supreme Court in the

matter of Pankajbhai Rameshbhai Zalavadiya Vs. Jethabhai Kalabhai Zalavadiya reported in (2017) 9 SCC 700 but in that case the suit was filed by

impleading one of the deceased-defendant, therefore, the Hon’ble Supreme Court held that the application under Order 1 Rule 10 of the CPC for

impleadment of the LRs should be allowed. So far as the judgments of the single bench of this Court in the matter of Subhash Chand Vs. Shriram

Gupta and others reported in 1986 JLJ 484, in the matter of Mst. Hazrabi Vs. Shiv Pyari Bai reported in 1973 MPLJ 54 Note No.78, in the matter of

Shyamcharan Baghel Vs. Jitendra Singh Gupta reported in 1977(II) MPWN Note No.350 and in the matter of Amrik Rai Vs. State reported in 1976

JLJ Short Note 16 are concerned, those judgments are distinguishable on their own facts and even otherwise in view of the Full Bench judgment of

this Court in the case of Panne Khushali (supra) the benefit of the single bench judgments cannot be granted to the petitioner.

Having regard to the aforesaid, I am of the opinion that the impugned order runs counter to the law, which is settled by the Full Bench of this Court,

hence it cannot be sustained and is hereby set aside.

The miscellaneous petition is accordingly disposed off. C.C. as per rules.