Ramashankar Poddar vs Prabhat Kumar Gupta

Shyamal Kumar Sen, J.—The facts involved in this application as appear from the petition inter alia are that the Petitioners Nos. 1 to 4 and the Respondents Nos. 5 and 6 entered into an agreement for sale of the suit property with the Respondents Nos. 1 to 4 dated February 20, 19S7, at Nos. 2 and 3, Kiran Shankar Roy Road, Calcutta, within the jurisdiction of this Court. Under the said agreement the Petitioners Nos. 1 to 4 and the Respondents Nos. 5 and 6 agreed to sell the property at a price of Rs. 12,00,000 on the terms and conditions mentioned in the agreement for sale dated February 20, 1987. It was also agreed by and between the parties to the said agreement^ that the Petitioners Nos. 1 to 4 and the Defendants Nos. 5 and 6 shall pay the said sum of Rs. 1,00,000 on account of earnest money and/or part payment of the consideration money as also the balance amount of the said consideration money to the Respondents Nos. 1 to 4 at their residence at No. 444, Rabindra Sarani, Calcutta, and the said sum of Rs. 1,00,000 was paid by the Petitioners and the Respondents Nos. 5 and 6 to the Respondents Nos. 1 to 4 in terms of and pursuant to the said agreement for sale at the said place within the jurisdiction of this Court.

Subsequently, however, in course of investigation of title of the Respondents Nos. 1 to 4 in respect of the said properly it transpired that a substantial part of the said property had already been subjected to acquisition proceeding initiated by or on behalf of the State of Uttar Pradesh for utilisation by the Uttar Pradesh Housing and Development Board. The Petitioners Nos. t to 4 and/or the Respondents Nos. 5 and 6 took or caused to be taken all necessary steps on behalf of the Respondents Nos. 1 to 4 for obtaining the require release orders from the concerned authorities for getting affected part of the said property released from acquisition proceeding.

On or about November 18, 1987, the Respondent No. 6 nominated in writing one Lalji Gupta as his nominee for the purchase of the said property in question. The said Lalji Gupta died intestate on or about July 4, 1988, leaving him surviving Petitioners Nos. 4 to 10 as his legal heirs and representatives under the provisions of Hindu Succession Act, 1956. The Petitioners Nos. 4 to 7 are the sons, the Petitioner No. 8 the sole widow and the Petitioners Nos. 9 and 10 are the married daughters of the said Lalji Gupta.

Having made the said nomination the Respondent No. 6 has and on that ground declined to join the Petitioners in instituting the present suit. The Petitioners have impleaded the said Respondent No. 6 as a Defendant in the said suit but has not claimed any relief against him.

After having come to know of the encumbrance of the said property and/or substantial part or portion thereof by way of acquisition proceeding the Petitioners Nos. 1 to 4 for the benefit of all concerned made sustained efforts in gelling the same released by the concerned authorities from the said acquisition proceedings. Of the said property all klwsras/plots except 37/2 were covered by the said acquisition proceeding, therewith another khasra/plot No. 36 comprising 0.3 decimals also belonged to the Respondents Nos. 1 to 4 was included in the said acquisition proceeding. The concerned authorities in or about first week of February 1988 agreed to release from all such proceedings the plot Nos. 33/1, 34, 36 and 38 but not 32. In the premises the total area of the property available for sale was reduced.

It was thereupon agreed by and between the parties concerned in or about February 1988 that in lieu of the said khasra/plot No. 32 Respondents Nos. 1 and 4 would sell to the Petitioners Nos. 1 to 4 and the Respondents Nos. 5 and 6 and/or their nominee or nominees kliasra/plot No. 36 comprising 0.3 decimal along with other khasra/plot covered by the said agreement for sale, the net area available for sale thus claimed 189 decimals on the condition, however, that the agreed consideration of Rs. 12,00.000 would remain unaltered. The original agreement for sale dated February 20, 1987, thus stood modified to the extent that plots Nos. 33/1, 34, 36, 37 and 38 would be sold by the Respondents Nos. 1 to 4 to the Petitioners Nos. 1 to 4 and the Respondents Nos. 5 and 6 and/or their nominee or nominees. The lime to complete the sale of the premises was mutually extended by the parties concerned from time to time till June 15, 1988. It has also been alleged in the petition that in the event the Respondent No. 5 does not come forward to purchase his share to the properly the Petitioners were and still are ready and willing to make such purchase and/or perform his party of contractual obligation. No relief has also been claimed against the Respondent No. 5.

It is the case of the Petitioners that the Respondents Nos. 1 to 4 are wrongfully seeking to impose upon the Petitioners an onerous term requiring payment of an additional sum of Rs. 8,00,000 to be paid to the concerned authorities for obtaining release over and above the said consideration money which is totally contrary to the terms of the agreement dated February 20, 1987, or the subsequent modification thereof as aforesaid.

By notice dated June 23, 1988, addressed by the Respondents Nos. 1 to 4 to the Petitioners Nos. 1 to 4 and the Respondents Nos. 5 and 6 at Benaras and sent by post the said Respondents sought to rescind, cancel and/or repudiate the said agreement for sale as modified. The said decision of cancellation or repudiation according to the Petitioners is wrongful and illegal and as such are not acceptable to the Petitioners. The said notice was received by or on behalf of the Petitioners Nos. 1 to 4 at Benaras outside the jurisdiction of the Court on June 28, 19SS. It has also been alleged in the petition that the Respondents Nos. 1 to 4 have threatened or intended to sell or dispose of or otherwise encumber or deal with the said premises which is subject-matter of the suit in a manner inconsistent with the Petitioners'' right thereto.

The Petitioners have also claimed that they arc in exclusive possession of the said premises. The Respondents Nos. 1 to 4 shortly after execution of the agreement for sale and receipt of the earnest money thereunder put the Petitioners Nos. 1 to 4 and Respondents Nos. 5 and 6 in possession of the property in or about February 1987. In or about February 1988 the Respondents Nos. 1 to 4 put the purchasers named in the said agreement for sale of their nominee or nominees in possession also of the said khasni, plot No. 36. It has been alleged that the Respondents are now threatening or intending to dispossess the Petitioners from the said premises and/or interfering with their possession.

It has also been stated in the petition that the Petitioners are still ready and willing lo perform the essential terms of agreement for sale modified as aforesaid. It has been alleged that the Respondents Nos. 1 to 4 have started negotiating with the Government of Uttar Pradesh and/or the Uttar Pradesh Housing Development Board for release of the said property from the acquisition proceedings upon payment of an amount lesser than Rs. 8,00,000 as demanded by the said authorities and are taking steps for execution of a deed of conveyance and/or deeds of conveyance in favour of such purported purchasers under the said agreement for sale dated June 23, 1988.

Under such circumstances the Petitioners instituted the instant suit claiming, inter alia, the following reliefs:

(a) A d ecrce for specific performance of the agreement for sale dated February 20, 1987, subject to the modification as pleaded in para. 7 of the plaint ;

(b) A decree directing the Respondents Nos. 1 to 4 to pay to Uttar Pradesh Housing Development Board and/or the Government of Uttar Pradesh forthwith a sum of Rs. 8,00,000 or such oilier sum or consideration as may be necessary to have the khasrasjplois Nos. 33/1, 34, 36 and 38 at village Pharia, Pargana Shibpur, District Varanashi, U.P., released from the acquisition proceeding and to render the same free from all encumbrances;

(e) In the alternative, leave be given to your Petitioners to pay the said sum of Rs. 8,00,000 or such other sum as may be required to render the said plots released from the acquisition proceedings and/or free from all encumbrances with liberty to deduct the same from and/or adjust the same against the balance consideration money payable to the Respondents Nos. 1 to 4 under the said agreement dated February 20, 1987, modified as pleaded in para. 7 of the plaint;

(d) Perpetual injunction restraining the Respondents Nos. 1 to 4 and each of them, their servants, agents assigns, from dealing with, disposing of, encumbering, selling or transfering the suit premises or any portion thereof in any manner whatsoever except to and in favour of your Petitioners and the Respondent No. 5 and/or their nominee and nominees;

(c) Perpetual injunction restraining the Respondents Nos. 1 to 4, their servants, assigns, and/or transferees from disturbing or interfering with the possession of your Petitioners in respect of the suit premises or any part or portion thereof;

(f) In default of the Respondents Nos. 1 to 4 executing or registering the Conveyance or Conveyances in respect of the suit premises, the Registrar, Original Side of this Hon''ble Court be directing and/or empowered to execute the appropriate Conveyance or Conveyances in respect of the suit premises and have the same registered;

(g) Further and/or in the alternative, an enquiry into the loss and damages taking into account the earnest money paid and decree for such as may thereupon be found due to your Petitioners;

(h) Attachment;

(i) Receiver;

(j) Injunction;

(k) Costs;

(l) Further and/or. other reliefs.

An affidavit in opposition was filed on behalf of the Respondents Nos. 1, 2 and 3 by an affidavit affirmed by Prabhal Kumar Gupta on September 7, 198S. By the said affidavit it has been, inter alia, contended on behalf of the said Respondent that the suit as well as the instant application are not maintainable for various grounds mentioned in the said affidavit. It has been contended on behalf of the said Respondent that the subject-matter of the agreement dated February 20, 1987, as also of the alleged agreement as pleaded in para. 7 of the said petition is an immovable property wholly situated at Varanasi outside the jurisdiction of this Court. Since the Petitioners in the suit are claiming possession of the said property which is incidental to specific performance, this Court has no jurisdiction to receive, try and determine the suit. It has been specifically mentioned in the said affidavit that in any event the Petitioners were and are under no circumstances entitled to the reliefs (d) and (e) prayed for in the plaint. Accordingly the Petitioners were, and are not entitled to the reliefs prayed for in the instant application. It has also been contended that the suit has been instituted at the instance of nominees and/or their heirs and legal representatives without any valid assignment which is not permissible in law. It has further been contended that the suit at the instance of some of the parties lo the agreement is not maintainable. The said agreement is not enforceable in piecemeal. In the said affidavit various other points have also been taken raising objection to the maintainability of this application.

Mr. P.K. Roy with Mr. Nath, learned Advocates for the Petitioners, submitted thai although the properly in suit is situated at Varanasi outside the jurisdiction of this Court that docs not debar the Petitioners from claiming the reliefs prayed for in the plaint and it cannot be said that the suit is not maintainable. Mr. Roy has submitted that a suit for specific performance of an agreement for sale of a properly situate outside the jurisdiction of this Court is maintainable inasmuch as the Plaintiffs are already in possession of the suit as specifically averred in the plaint. The Plaintiffs have not claimed in the suit possession to the property but has claimed specific performance of the agreement for sale which was executed within the jurisdiction of this Court.

It has been contended on behalf of the Petitioner that the Petitioner is entitled to an order of injunction in terms of Order XXXIX Rule 1(c), Code of Civil Procedure, clearly provides that the temporary injunction may be granted by the Court where the Defendant threatened to dispossess the Plaintiff. It is the specific case of the Petitioner that the Petitioner has been threatened with dispossession and as such temporary injunction should be granted in his favour from interfering with such dispossession (possession ? ). In a suit for specific performance although provision for lis pendens u/s 52 of the Transfer of Property Act is applicable even then it would be necessary to pass an order of injunction under Order XXXIX restraining him from further alienating or disposing of the said property.

In support of his contention the learned Advocate for the Petitioner relied upon a judgment and decision in the case of Sm. Muktakesi Dawn and Others Vs. Haripada Mazumdar and Another, The learned Advocate for the Petitioner also relied Upon a judgment and decision in the case of Pramathanalh v. Jagannath (1939) 17 C.L.J. 427 wherein it has been observed lhat a Court will in many cases interfere and preserve property in status quo during the pendency of a suit in which the rights to it are to be decided and though the purchaser pendente lite would not gain title, the Court will prevent by injunction the embarassment that would be caused to the original purchaser in his suit against the vendor.

It has also been contended on behalf of the Petitioner even assuming that the suit is a suit for land and other suit within Clause 12 of the Letters Patent, and since the land is situated wholly outside jurisdiction, the Court can dismiss the suit so far as it is a suit for land and proceed with the rest of it if Defendant is within jurisdiction or cause of action arose within jurisdiction. The learned Advocate submitted even assuming that some of the prayers in the suit, viz., prayers (d) and (e) of the plaint cannot be granted by this Court but the other prayers may be granted at the final hearing of the suit and as such there will be no difficulty in granting a temporary injunction at this stage if a prima facie case for the same has been made out. In support of his contention the learned Advocate relied upon a judgment and decision in the case of Bengal Agricultural and Industrial Corporation Ltd. Vs. Corporation of Calcutta and Another,

The learned Advocate for the Petitioner also submitted that the cause of action in a suit for specific performance of a contract to execute a document of transfer is not a cause of action for possession of land. Possession only is consequential and the right to the same arises by virtue of the execution of the document by transfer and not before. In support of his contention be relied upon a Division Bench judgment in the case of Debendra Nath Chowdhury Vs. Southern Bank Ltd.,

The learned Advocate for the Petitioner also referred to Section 12 of the Specific Relief Act. It has been submitted that it is of course essential that when there are joint premises all of them must be before the Court but it is not essential that they must join as Plaintiffs and that they can be made party Defendants. In this instant case the parly who has refused to join as Plaintiff has been made party Defendant. Accordingly the suit cannot be said to be bad. In support of his contention the learned Advocate for the Petitioner relied upon a judgment and decision in the case of Smt. Nirmala Bala Dasi and Another Vs. Sudarsan Jana and Others, The learned Advocate also submitted that it has been specifically averred in the plaint that the Plaintiffs are ready and willing to purchase the suit property by paying the entire consideration amount and as such there cannot be any objection that one of the promisees has not joined as Plaintiff although he has been made a parly in the suit as Defendant. The learned Advocate also relied upon a judgment and decision in the case of Ponnuswami Gounder Vs. Rama Boyan and Others, and submitted that if some of the parties to the contract do not want to specifically enforce the contract and, therefore, are not willing to join as Plaintiff the others can file a suit for specific performance of contract impleading those who are not willing as Defendants. According to the learned Advocate for the Petitioner it cannot be said that the suit is bad because one of the parties refused to join as Plaintiff and to enforce the contract.

Mr. Pralap Chatterjee, learned Advocate with Mr. Barin Ghosh, learned Advocate for the Respondents Nos. 1, 2 and 3, submitted that in the instant case primary object of the suit is determination of title to and right to possession of land even on the basis of prayer (a) to the petition which involves enforcement of entire contract. One of the clauses in the said agreement, namely, Clause 10 provides for delivery of possession upon execution of the agreement by the parties or their nominees. Under such circumstances it has been submitted that if a decree is passed for specific performance of the agreement for sale that will involve enforcement of the entire agreement including the said clause relating to delivery of possession of the land or property which is outside the jurisdiction of this Court.

Mr. Chatlerjee in this connection relied upon a judgment and decision in the case of Tridandeeswami Bhakti Kusum Sraman Maharaj and Others Vs. Mayapore Sree Chaitanya Math and Others, . In the aforesaid decision the question before the Division Bench of this Court was whether out of several reliefs in the plaint the claim for the grant of particular relief which does not relate to title to, or possession, control or management of land or buildings or other immovable property, the primary object of the suit or not has to be decided by applying the lest whether such relief claimed to be the primary object of the suit can be granted to the Plaintiffs without the necessity of any adjudication on the question of title to any lands or buildings or other immovable property or possession, control or management thereof. If the relief stands the test the suit will not be a suit for land or other immovable property within the meaning or Clause 12 of the Letters Patent, although the grant of such relief may indirectly affect land or other immovable properly. If, however, by applying the lest it is found that such relief cannot be granted without deciding the question of title to or possession, control or management of the land or other immovable property the claim for the grant of such relief cannot be primary object of the suit and in that case the suit will be a suit for land or other immovable property.

The learned Advocate for the Respondent No. 1 submitted that on the basis of the prayer in the plaint claiming decree for specific performance of contract the Plaintiff decree holder is entitled to possession of the properly also in execution of the decree and as such a prayer for specific performance really involved possession. In support of his contension the learned Advocate relied upon a judgment and decision in the case of Babu Lal Vs. Hazari Lal Kishori Lal and Others,

The learned Advocate lor the Respondent No. 1 further submitted that the prayers made in the plaint taken together cannot be granted by this Court, inasmuch as the same would involve determination of question which clearly fall outside the jurisdiction of this Court. In this connection he has relied upon a judgment and decision in the case of Macneill and Magor Ltd. and Another Vs. Mouhsen Ali and Another, In that suit by tenant of the premises for perpetual injunction to restrain the owner from interfering with the tenant''s user of the space in the courtyard of the premises, it was held that the injunction sought for will affect possession of control of the said space in the courtyard of the premises. Whether the Plaintiff is entitled to have possession or ouccupation of the said space would necessarily fall for determination of the suit. Therefore, the suit was held to be a suit for land within Clause 12 and since the premises were situated outside the jurisdiction of the Court. This Court could not entertain and try the Suit.

The learned Advocate for the Respondent also submitted that in a suit for specific performance of the agreement for sale all the parlies to the agreement must be ready and willing to comply with the obligations under the agreement and there must be such averments in the plaint to that effect. It has been contended that there is no such averment in the plaint that all the parlies to the agreement who agreed to purchase the property have not joined the suit as Plaintiffs. The Defendants Nos. 5 and 6, it has been alleged in the plaint, have been won over by the Defendants Nos. 1 to 4. The Plaintiffs Nos. 4 to 10 are the heirs and legal representatives of one Lalji Gupta, nominee of the Defendant No. 6 who was originally a party to the said agreement and also agreed to purchase the suit properly jointly. Accordingly it has been submitted that all the purchasers were not ready and willing at the time of suit to purchase the said properly and the nominee has no right to enforce specific performance of the contract for sale and as such the suit must fail on that ground and no interim relief can be granted since the suit will not ultimately succeed.

The learned Advocate in this connection relied upon the following decisions: Ranjit Kumar Ghosh @ Chandi Charan Ghosh v. Pranab Kumar Bandapadhaya and Ors. 87 C.W.N. 127 Bhaurao Shamrao Bhalme and Others Vs. Mahadeo Raghu Yelekar, Rahman v. Maltaranunnessa Bibi and Ors. ILR 24 Cal. 832.

The learned Advocate further submitted that in a joint contract where the purchasers have agreed to purchase the property jointly, suit for specific performance can only be decreed in favour of the joint promisees and when all the purchasers have not joined the suit as Plaintiffs no decree can be passed. The learned Advocate in this connection also referred to two earlier decisions of this Court in Sm. Katip Bibi Vs. Fakir Chandra Ghosh and Others, and accordingly submitted the suit as framed is not maintainable and as such no interim relief should be granted at this stage. I have considered the respective submissions of the parties and the decisions cited from the Bar.

The main test for determining if the suit is a suit for land has been dealt with by the Division Bench of this Court in the case of Tridandeeswami Bhakti Kusum Sraman Maharaj v. Mayapur Sree Chailanya Malh (Supra) In the aforesaid decision the Division Bench observed as follows:

In our opinion, the question whether out of several reliefs in the plaint the claim for the grant of a particular relief which does not relate to title to, or possession, control or management of land or buildings or other immovable properly, is the primary object of the suit or not, has to be decided by applying the lest whether such relief claimed to be the primary object of the suit can be granted to the Plaintiff without the necessity of any adjudication on the question of title to any land or buildings or other immovable property, or possession, control or management thereof. If the relief stands the test, the suit will not be a suit for land or other immovable property within the meaning of Clause 12 of Letters Patent, if however, by applying the test it is found that such relief cannot be granted without deciding the question of title to, or possession, control or management of land or other immovable properly, the claim for grant of such relief cannot be the primary object of the suit and, in that case, the suit will be a suit for land or other immovable property within the meaning of Clause 12 of the Letters Patent.

Considering such lest in my opinion it cannot be said at this lime that the primary object of the present suit relates to the determination of question of title to land and that the reliefs claimed cannot be granted without adjudicating on the question of title to land. It is well-settled that the Court at (his stage will proceed on the basis of the averments made in the plaint. In the instant case the Plaintiffs have specifically averred that they are in possession of the suit properties. On the basis of the averments made in the plaint it does not appear that any question, relating to determination of title to land or relating to possession is really involved. Considering the prayers in the plaint along with the averments made in the body of the plaint it appears to me that the main relief claimed in the plaint is the relief for specific performance of the agreement for sale of the suit..properties. The other prayers are incidental or ancillary to such main relief. The Plaintiffs have really intended in the suit by these other prayers, namely, prayers (d) and (e) to protect their rights to possession inasmuch as they are already in possession of the suit properties. In fact on the basis of the averments in the plaint no dispute can be raised relating to question to title to the land or properties being subject-matter of the suit. At this stage, therefore, if will not be proper to make a finding that the Court has no jurisdiction to try the suit. However, such question may be left open for determination on the basis of the evidence that may be adduced by the parties and the Defendants may be permitted to raise such issue as to jurisdiction at the time of final hearing.

The Division Bench judgment and decision in the case of Debendra Nath Clwwdlntry v. Southern Dank Ltd. (Supra) may be taken note of. In the aforesaid Division Bench judgment it has been held that a suit where the Plaintiff claims a decree for specific performance only, directing the Defendant to execute and register a 1ease with alternative claims for damages is not a suit for land within the meaning of Clause 12 of the Letters Patent. The foundation for holding such a suit not to be one for land is the first principle that it is a suit for enforcing a contract where the Court is required to act only in personam. Secondly, the cause of action for such specific performance is not the cause of action for the recovery of land as such and the fact that such will or may be the consequence is immaterial for the purpose ; the cause of action for the specific performance of the contract is a breach of that contract and not the cause of action for a titular or possessory claim for land. It was also held by the Division Bench that the fact that a decree for specific performance will result in ultimate possession being given or obtained, does not convert it into a suit for land, for in that case the suit for land would not have been grouped as a class by itself apart from the class governed by the test of action or the test of the place of residence or place of business of the Defendant in Clause 12 of the Letters Patent.

In the instant case as already noted that the Plaintiffs have specifically averred that they are in possession of the suit land and no decree for possession has been claimed. What has been claimed really is specific performance of the contract in the sense of execution of conveyance and ancillary reliefs for protection of their possession to the suit properties by way of injunction. Therefore, it cannot be said that the instant suit is a suit for land.

The other question raised in this application, namely, the suit will fail inasmuch as all the intending purchasers have not joined the suit as Plaintiffs do not appear to me to be acceptable. In the case of Sm. Vi(sic)tala Bala Dassi and Anr. v. Sudarshan Jana (Supra) it has been held by learned Single Judge of this Court that it is of course essential that when there are joint promises all of them must be before the Court but it is not essential that they must join as Plaintiffs when one of such joint promisees files a suit for specific performance as they can be made party Defendants. In case, however, those of the joint promisees who had been added as Defendants also intend to assert their right under the contract, it may be necessary to transpose them as Plaintiffs and the Court may give judgment in favour of all of them but there is nothing in Section 15 of the Specific Relief Act, 1963, which forbids one of the joint promisees to institute a suit for enforcing a contract. The words ''any party thereto'' appear in Clause (a) thereof clearly envisages that one or some of the joint promisees can institute such a suit. It was held accordingly in that case that it cannot be said that in the absence of specific averment in the plaint that the other promisees refused to join the Plaintiffs and proof of such averment, the suit filed by one of the joint promisees was liable to be dismissed for non-joinder of parlies. Accordingly in the instant case the suit will not fail on the ground that the co-promisees have not joined as Plaintiffs although they have made party Defendants in the suit.

In the aforesaid decision the Court also considered the case of Kalip Bibi v. Fakir Chandra (Supra) which was relied upon on behalf of the Petitioner and the learned Judge observed as follows:

The decision of this Court in the case of Sm. Katip Bibi Vs. Fakir Chandra Ghosh and Others, on which Mr. Samanta relied, is of no assistance to him; on the contrary, on reading the same I find that it supports the view I have taken. In lhat case the promisees was one and after his death all his heirs were not joined as parties. It was in that context that this Court held that one or more of the several heirs of the original promisee, a single individual, could not by himself or themselves institute a suit for specific performance of the contract and reconveyance by making the remaining heirs as Defendants to the suit as on the death of the original promisee his heirs did not become themselves several joint promisees. While so deciding this Court specifically pointed out that the position would have been otherwise if there were several joint promisees. Reliance in this connection may also be placed on the following passage from the judgment of Privy Council in the case of AIR 1939 170 (Privy Council) It has long been recognized that one or more of several persons jointly interested can bring an action in respect of joint property and if their right to sue is challenged can amend by joining their co-contractors as Plaintiffs if they will consent or as co-Defendants if they will not. Such cases as (1879) 11 Ch.D. 121 and (1989) 2 Q.B. 380 are examples of this principle. Nor indeed would it matter that a wrong person had originally sued though he had no cause of action: See (1902) 2 K.B. 485. Once all the parties are before the Court, it can make the appropriate order and should give judgment in favour of all the persons interested whether they be joined as Plaintiffs or Defendants.

In the case of Safiur Rahman v. Maharanunnessa Bibi (Supra) the facts inter alia are that the Defendant No. 1 purchased, at an auction sale, certain lands belonging to the other Defendants and the Plaintiffs. He subsequently agreed to execute separate reconveyances in favour of each co-owner, upon receiving Rs. 500 in addition to the price he had paid for the lands. The Plaintiffs desired performance of the contract but the co-owners did not and they refused to join the Plaintiffs in a suit against the contractor. The Plaintiffs accordingly made them Defendants. The Subordinate Judge decreed the suit and his decision was upheld on appeal to the District Judge. The defendent No. 1 (the contractor) appealed. In the appeal the judgment of the Court was as follows:

The Defendant No. 1, the Appellant, made a joint contract with several persons that, "on receipt of Rs. 500 as profit in addition lo the price paid by him for the property" he would execute separate documents in favour of each person. Some of the parties who entered into thai contract with the Defendant No. 1 claim specific performance of the contract, making the others, who refused to have the contract performed, Defendants.

The question, therefore, is, can some of the parties to a single contract enforce specific performance against their adversary and the other persons who arc Defendants?

We think, on principle, that they cannot, and that in a suit for the performance of a single contract the parties on each side must be marshalled as Plaintiffs and Defendants. We, therefore, decree the appeal, and dismiss the suit with costs in all the Courts.

In my opinion the said judgment and decision cannot have any application to the fads and circumstances in the instant case. In the aforesaid decision there was a joint contract with several persons that on receipt of Rs. 500 as profit in addition to the price paid by him the Defendant No. 1, would execute separate documents in favour of each person. In the instant ease however there is no provision for execution of separate conveyances in favour of each purchaser but there will be one conveyance to be executable. Moteover, no principle has been decided in the aforesaid decision which can be made applicable and bunding as a precedent. Accordingly this judgment cannot be of any assistance to the contesting Respondent.

The Full Bench judgment of this Court in the case of Pyari Malum Base v. Kcdarnaih Roy and Ors. ILR 26 Cal. 409 may be considered in this connection. In thai case the question raised in the reference before the Full Bench is that where two parties contract with a third party can a suit by one of the two making the other a co-Defendant be dismissed under our procedure because the plaint if had not proved that the co-Defendant had refused to join as co-Plaintiff. It was held that as a general rule all co-contractors ought to be joined as Plaintiffs, but at the same time where, as here, there are three co-contractors, three co-sharers, two of which co-Plaintiffs and the other co-Defendant (all the parties interested under the contract) the suit ought not to be dismissed simply because it has not been shown that the co-sharer Defendant has refused to join as co-Plaintiff.

The full Bench further held as follows:

If so, in each such case there would have to be a preliminary issue as to such refusal, and (he inconvenience of that, is shown by the proceedings in the present case, where one Judge has decided there was such refusal and another Judge has decided the very opposite. In cases of this class the Defendant -the active Defendant, not the co-sharer Defendant should, as soon as the trial is commenced, direct the Court''s attention to the supposed non-joinder ; the Court would then call upon the Defendant co-sharer to say whether he was willing to be a co- Plaintiff ; if he says "yes", he can then be shifted from the ranks of the Defendants to the side of the Plaintiffs and be made a co-Plaintiff; and if, as the result of that shifting, the acting Defendant satisfies the Court that he ought to have an opportunity of considering the new position, the Court can adjourn the trial, upon such terms as to payment of any costs thrown away, as it may deem just ; but if the co-sharer Defendant declines to be made a co-Plaintiff then the trial can proceed with him its a co-Defendant. I certainly do not think the suit ought to be dismissed, simply by reason of such non-joinder, when at any rate, all the parties interested are before the Court, which has simple power to do what I have said u/s 32 of the Code of Civil Procedure. In order to avoid the throwing away of costs, and to ensure the saving of time, an objection as to non-joinder ought to be taken in the written statement, and when so taken the Plaintiff should use his best endeavours to get the other co-sharer to join, and if successful, apply at once to have him joined as a co-Plaintiff, and if unsuccessful, he would then be in a better-position to satisfy the Court, when the objection is raised at the trial, that he has done his best to have him made a co-Plaintiff.

We are asked, however, what is to happen if the co-sharer Defendant be not represented, or present, at the trial ? I think the answer is simple. His absence would indicate that he took no real interest in the dispute, and would raise a strong inference that he did not wish to be made a co-Plaintiff, in which case the trial could proceed with him as a co-Defendant.

Accordingly it cannot be said that the suit will fail simply because the other intending purchasers have not joined as Plaintiffs in this suit.

On similar principle the judgment and decision in the case of Ranjit Kumar Ghosh alias Chandi Cliaran Ghosh v. Pronab Kumar Bandapadhya (Supra) is distinguishable. In the aforesaid decision the appeal arose at the instance of the Defendant No. 1 out of a suit filed by the Plaintiffs Pronab Kumar Banerjee and one Sukumar Banerjee for specific performance of contract for reconveyance of immovable property. The case made out in the plaint is that the Plaintiffs are the sons of late Mohahanda Banerjee by his second wife, late Gayatri Debi. The pro-Defendant No. 4 Sankari Debi is the Plaintiffs'' step-mother, being the first wife of Late Mohananda Banerjee and the pro-Defendant Nos. 2 and 3 are the Plaintiffs'' step-brothers. During the minority of the Plaintiff No. 2 and the pro-Defendants Nos. 2 and 3, the Plaintiff No. 1 for self and on behalf of the Plaintiff No. 2 as the latter''s guardian and the pro-Defendant No. 4 for self and on behalf of the pro-Defendants Nos. 2 and 3 as their guardian jointly sold the suit land to the principal Defendant No. 1 by a rigistered kobala dated November 4, 1958, for a consideration of Rs. 1700. On the same date simultaneously with the sale, the pro-Defendant No. 1 executed and registered an ekrarnama stipulating thereby to reconvcy to selfsame property in favour of the vendors by the same amount of consideration if paid within Chailra 1370 B.S. It has been alleged that since the beginning of Chailra 1370 B.S. the Plaintiffs had been asking the pro-Defendants Nos. 2 to 4 to enforce the contract for reconveyance of the suit land and also the principal Defendant No. 1 to execute and register necessary deed of reconveyance with respect to the same in terms of the contract.

From the facts in the aforesaid decision it is clear that the property which was sold and in respect of which there was an agreement for reconveyance really belonged to the father of the Plaintiffs and the Plaintiffs filed the suit as heirs and legal representatives of Mohananda Banerjee alleging that they sold the property and entered into such agreement for reconveyance on behalf of all such heirs of the said deceased. Accordingly in the absence of such heirs as Plaintiffs the suit for specific performance of the agreement was held to be not maintainable. In the instant case, however, the agreement in respect of which specific porformance has been claimed is entirely different. The parties here are not co-sharers and it may be said that they are entitled to a conveyance independently on their own right. However, such construction of the agreement also will depend upon the intention of the parties which can only be gathered from the evidence that may be adduced at the trial and it is very difficult to ascertain the true nature of the agreement without considering the evidence. Moreover, the Court''s attention was not drawn to the judgment and decision in the case of Sm. Katip Bibi v. Fakir Chandra (Supra) and also of the Full Bench judgment in the case of Pyari Mohan Bose v. Kedar Nath Roy (Supra) and as such in my opinion said judgment and decision in the case of Ranjit Kumar Ghosh alias Chandi Charan Ghosh v. Pronab Kumar Bandapadhyay (Supra) cannot have any binding effect.

In the case of Bhaurao Shamrao Bhalmc v. Mahadeo Reghu Yeteker (Supra) it was held that there was no averment whatsoever in the plaint to the effect that the Plaintiffs are ready and willing to perform their part of the agreement at least till the dale of the suit and subsequently the suit was liable to be dismissed. In my opinion the principles laid down therein well settled. However, in the facts of the instant case the aforesaid decision in my opinion cannot be of any assistance to the Petitioner.

Considering the facrs and circumstances of the case and also considering the balance of convenience of the parties in my opinion the Plaintiffs have made out a prima facie case for injunction. Accordingly there will be an order of injunction in terms of prayers (a) and (b) of the petition.

Costs of this application cost in the cause.

All parties to act on a xerox signed copy of the operative part of this judgment to be supplied to them upon payment of requisite charges by each of them and upon the usual undertaking.