Kerala High Court
K.S. Abraham vs Mrs. Chandy Rosamma And Ors. on 27 September, 1988
Equivalent citations: AIR1989KER167, AIR 1989 KERALA 167, AIR 1988 KERALA 167 (1988) 2 KER LT 659, (1988) 2 KER LT 659
ORDER K.P. Radhakrishna Menon, J.
1. The plaintiff in a suit for specific performance of the agreement for sale of the plaint schedule property dated 28th March, 1982 executed by the first defendant, is the revision petitioner. The second defendant is his wife, whereas the third defendant is his son.
2. Taking the stand that she has improperly been joined as a party to the suit, thesecond defendant preferred an application under Order 1, Rule 10(2) read with S. 151, C.P.C. to have her name removed from the party array. The Court below by the order under challenge, has allowed the said petition.
3. A re'sume' of facts essential and requisite to dispose of the question, whether the second defendant has validly been joined as a party to the suit, is stated hereunder : The first defendant in the agreement has conceded that the property is owned by him. It has further been stated therein to the effect that, though he had executed 'a ground rent deed' in favour of the second defendant leasing the land where the theatre building, other structures etc. have been constructed, the second defendant thereby has not got any interest in or possession of the said building, structures etc. or any part of the schedule property. Yet one other statement in the agreement which is relevant in the nontext, is this :
(Vernacular matter omitted -- Ed.) The second defendant has accordingly, been made a formal party to the suit "for the purpose of getting an effective decree for specific performance".
4. The first defendant in his written statement however, has taken a stand inconsistent with the above stand, he has taken in the agreement in regard to the alleged right, the second respondent is having in the property. He has positively stated in the written statement that the theatre building and other structures belong to his wife. This is what is stated in the written statement :
"Twentyfive cents and virivu of garden land referred to in the plaint has been in the possession and enjoyment of the second defendant on ground rent from 1950 and she had put up theatre buildings and other structures and has been giving them on rent to film exhibition for conducting cinema shows".
This leasehold right, it is said, has been renewed by Document No. 2081 of 1971 of the Sub Registry, Kanjirapally. Regarding the agreement, the first defendant had stated thus in the written statement :
"The agreement at best is only a contingent agreement capable of performance only in the event of the 2nd defendant joining in the execution of the sale deed envisaged in the agreement and transferring her rights and interests also.....The agreement is enforceable only in the event of the second defendant agreeing to dispose of the property and join in the execution of the sale deed. Until that event happens the agreement cannot be enforced and the agreement has therefore become void and there is no contract which can be made the basis of a decree for specific performance".
5. Going by the above statements in the written statement it cannot be said that the second defendant has no direct interest in the subject matter of the litigation. In this connection it is relevant to make specific reference to the suit instituted by the 2nd defendant against the plaintiff for arrears of rent before the Munsiff's Court which, according to the plaintiff, is nothing but a collusive action with the 1st defendant. At the same time as already noted, the statements in the agreement disclose that the 2nd defendant has no manner of right, title or interest in the property, leave alone the theatre building and other structures.
6. The law dealing with the addition or striking put of the parties as plaintiffs or defendants is stated in Cls. 2, 4 and 5 of Rule 10, Order 1, C.P.C. Here we are concerned only with Clause 2. It reads : --
"The Court may at any stage of proceedings, either upon or without the application of either party and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or 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, be added".
The content of this clause can be stated thus : A person may be added as a party to the suit provided it is shown that he has a direct interest in the suit property and hence his presence before the Court is necessary in order to enable the Court effectively and completely to adjudicate upon and settle all questions involved in the suit. Construing this provision the Supreme Court has observed that "in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest in the subject-matter of the litigation". Raziabegum v. Sahebzadi Anvarbegum, AIR 1958 SC 886. To put it differently under Order 1, Rule 10(2) the Court, has the power to add a party in a suit if from the pleading and other circumstances it is found that, that party is interested in the subject matter of the litigation and without the junction of that party the issues cannot finally and effectually be decided. (See also Vydianadayyan v. Sitaramayyan, (1882) ILR 5 Mad 52). The Court can thereby also avoid conflicting decisions on the same questions. Going by this principle the 2nd defendant at any rate, is a proper party if not a necessary party to the suit because, as already noted, she claims tenancy rights over the property in dispute under a ground rent deed which, no doubt, according to the plaintiff was not acted upon.
7. The question as to whether the second defendant is a necessary party to the suit can be viewed from another angle also. The arguments of the counsel for the petitioner in this regard can be stated thus : According to the 1st defendant the 2nd defendant is no one against whom a decree for specific performance can at all be granted since she is not a party to the agreement. However, it could be inferred from the recitals in the agreement that the alleged 'ground rent deed' executed by the 1st defendant in favour of the 2nd defendant was not intended to be acted upon. Had it been otherwise the first defendant who is the husband of the 2nd defendant, would not have stated thus in the agreement :
(Matter in vernacular omitted -- Ed.) In support of this argument, the learned counsel made paricular reference to certain documents; (1) Rent receipt showing receipt of rent of the property by the 1st defendant during the years 1974 and 1983; and (2) the order of the Rent Control Court in R.C.P.5/85, a petition filed by the 2nd defendant under Section 11(2) of the Kerala Buildings (Lease and Rent Control) Act against the petitioner for evidence, rejecting the claim of the 2nd defendant that it was she who had constructed the theatre building and other structures out of her own fund after she took the land from her husband on lease. These documents are more than sufficient to show that the 2nd respondent has no manner of right over the property, the learned counsel for the petitioner argues. The impleadment of the wife of the 1st defendant as 2nd defendant therefore can be sustained under Section 19(c) of the Specific Relief Act, the counsel submits.
8. Section 19 of the Specific Relief Act reads : --
"Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against-
(a) & (b).....
(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;"
Under this section specific performance can be declared not merely against a party to the contract but also against a person claiming under a title, which, though prior to the agreement and about which the plaintiff was aware of, might have been displaced by the defendant. (See Mokarala Pitchayya v. Bhoggabarapu Venkatakrishnayya, AIR 1943 Mad 497). If the case of the plaintiff is accepted the apparent title of the 2nd defendant over the property is of no consequence in regard to the right of the petitioner to get a decree for specific performance, because the said title of the 2nd defendant can be displaced by the first defendant. That means the 2nd defendant is a necessary party to the suit.
9. The above position in law notwithstanding the learned counsel for the 1st defendant argues that in deciding the question as to whether the 2nd defendant is a necessary party to the suit the factors that should be taken into account are : (1) whether the plaintiff has claimed any specific relief against the second defendant, (2) whether the scope of a suit for specific performance of a contract for sale be enlarged and the suit turned also into a title suit between one or either of the parties to the contract and stranger of the contract. In support of this argument the learned counsel relied on a Full Bench ruling of the Madhya Pradesh High Court in Panne Khushali v. Jeewanlal, AIR 1976 Madh Pra 148
10. Regarding the first aspect it is true that the 2nd defendant is not a party to the agreement. It is also true that the plaint does not contain a specific prayer for relief against the 2nd defendant. Nonetheless it should be conceded, going by the statements in the written statement of the 1st defendant arid also the recitals in the agreement that the 2nd defendant is definitely having a direct interest in the property. It therefore follows that in the event of the suit being decreed the alleged interest of the 2nd defendant will definitely be affected. To put it differently it may not be possible to pass an effective decree if the second defendant is deleted from the party array. Such persons are necessary parties, although no specific relief is sought against them. Similarly 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 on the party array.....The 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, they may sometimes be proper parties under general rule, in order to avoid multiplicity of suits. (See Corpus Juris Secondum, Vol. XXX, Sections 142 and 146 to 148 referred to in the Full Bench ruling of the Madhya Pradesh High Court). At least to avoid multiplicity of suits, the 2nd defendant is a necessary party to the suit. (See the facts stated supra).
11. Regarding the second aspect, the Full Bench, in my judgment, has stated 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, very widely. The question whether the suit is for specific performance or otherwise, is unnecessary to be considered to decide the issue whether a person has been properly joined in the suit within the meaning of Clause (2) of Rule 10 of Order 1 C.P.C. What is required to be considered in making a person a party to a suit following the procedure prescribed under Order 1 Rule 10(2) is, as observed by the Supreme Court in Razia Bagum's case, (AIR 1958 SC 886) is has he/she a direct interest as distinguished from a commercial interest in the subject-matter of the litigation. Such person shall be made a party to the litigation; or else the Court cannot finally and effecatually dispose of the dispute, which is in respect of the property, the subject matter of the suit. I therefore am constrained to observe that, with respect, I cannot agree with the view expressed by the Full Bench referred to above. Viewed in this background the other rulings cited by the learned counsel namely, AIR 1975 Guj 178, AIR 1981 Delhi 237, AIR 1984 Pat 218, AIR 1985 Orissa 93 also have no application here. The learned counsel has also cited two decisions of this Court namely, (1987) 2 Ker LT 132 : (AIR 1988 NOC 79) and (1987) 2 Ker LT 334. This Court in those decisions had no occasion to consider the question decided in this case and therefore the principles enunciated therein also have no application.
The order under challenge in the light of what is stated above is liable to be set aside. I accordingly set aside the same. The C.R.P. is allowed but in the circumstances no costs.