Patna High Court
Ram Bilash Pandey And Ors. vs Jai Narayan Gupta And Ors. on 21 December, 1983
Equivalent citations: AIR1984PAT218, AIR 1984 PATNA 218
ORDER S.J. Hyder, J.
1. Opposite parties I and 2 instituted a suit for specific performance against opposite party 3. The applicants applied under Sub-rule (2) of Rule 10 of Order 1, Civil P. C. (hereinafter referred to as 'the Code') for being impleaded as parties. This application was rejected by the trial Court by its order dated 3-11-1983. In consequent the interveners-applicants have come up in revision to this Court.
2. Shortly stated the ground, on which the applicants solicited that they may be impleaded as defendants to the suit, was that the property, which had been agreed to be sold by defendant-opposite party 3 to the plaintiffs-opposite parties I and 2, was joint Hindu family property and had been acquired by opposite party 3 from the joint family funds which were in his possession. The Additional Subordinate Judge was of the view that the applicants-interveners were neither necessary nor proper panties to the suit and the application moved by them under Sub-rule (2) of Rule 10 of Order 1 of the Code was not legally maintainable. The correctness of this view has been assailed before me.
3. Ordinarily a plaintiff to a suit is dominus litis. It is for him to decide the forum where the suit is to be instituted and the persons who have to be impleaded as a party. His choice as to the place of institution of the suit or the parties to it can only be altered or interfered with by the Court under powers given to it by the statute. There is no dispute in the instant case with regard to the place where the suit ought to have been instituted. The only dispute relates to the question as to whether the applicants are proper or necessary parties to it.
4. The provisions of law, which govern, a case of this nature, is contained in Sub-rule (2) of Rule 10 of Order 1 of the Code. Sub-rule (2), inter alia, provides that the Court may at any stage of the proceedings, either upon or without the application of either party, direct that the name of any person who ought to have been joined whether as the plaintiff or defendant, or whose presence before the Court is necessary in order to enable the Court effectually and completely adjudicate upon and settle all the questions involved in such suit may be added. The persons who ought to have been joined as the plaintiff or as the defendants as the case may be are for the sake of convenience, referred to as necessary parties. The expression 'proper party' has been coined in relation to such persons 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. It has, therefore, to be examined whether the applicants on the averments made by them would be considered either as 'necessary parties' or 'proper parties'. If they do not fall in any of these categories, the revision application must fail.
5. Now the question as to whether the property had been acquired by the defendant-opposite party 3 with joint family funds and was in consequence a joint family property, was wholly foreign to the scope of the suit. On the allegations made in tine plaint and in the written statement filed by opposite party 3, the adjudication of this question was not necessary. It cannot, therefore, be said that the intervener-applicant were necessary parties to the suit. The only question which requires examination is whether they fall under the category of proper party.
6. Learned counsel appearing for the Interveners-applicants contended that the claim of the plaintiff-opposite parties 1 and 2 related to immoveable property. He submitted that the considerations which would arise in a case of specific performance of a contract simpliciter would not govern the instant case. 1 am unable to appreciate the distinction which is sought to be drawn by the learned counsel between a contract governing immovable property and a contract simpliciter. The array of parties in a suit for specific 'performance shall be the same irrespective of the subject matter of the contract.
7. On behalf of plaintiff-opposite parties 1 and 2 reliance has been placed on a Full Bench decision of the Madhya Pradesh High Court in Panne Khushali v. Jeewanlal Mathoo Khatik, AIR 1976 Madh Pra 148. The facts of that case are identical with the facts of the present case. There also intervenes sought to be joined as parties in a suit for specific performance on the ground that they were members of a joint Hindu family and were interested in the subject matter of the suit The Full Bench of the Madhya Pradesh High Court, after a careful examination of the various decisions of different Courts, came to the conclusion that the interveners were neither necessary parties nor proper parties. They could not be given the benefit of Order I, Rule 10 (2) of the Code. It accordingly turned down the request of the intervenes to be impleaded as parties to the suit for specific performance.
9. Learned counsel for the interveners-applicants has pleaded that I should not follow the Full Bench of the Madhya Pradesh High Court. He has invited my attention to the decisions of the case of Rasiklal Shankerlal Son! v. Natverlal Shankerlal Upadhyaya, AIR 1975 Guj 178 and the case of Shivashankareppa Mahadevappa Parakan-hatti v. Shivappa Parappa Kupati, AIR 1943 Bom 27. In these cases, the principle that in a suit for specific performance, the parties to the contract are the only necessary parties to the suit has been stressed. To this general rule, an exception has been engrafted and that is to the effect that if a person is in possession of a property in respect of which a suit for specific performance is filed, he should also be impleaded as a party thereto if he claims a title adverse to the vendor. This exception is based on the principle that the plaintiff of the suit will ultimately obtain possession against the person who is in actual possession of the property and claims a title adverse to the vendors. If such person is also brought on record and given a chance to contest the suit, there is no likelihood of inconvenience to the purchaser, and multiplicity of legal proceedings is also avoided. In the instant case, the intervener-applicants were not in possession of the property which was the subject matter of the suit for specific performance. The Gujarat and Bombay High Courts' decisions, therefore, lend no support to the contention advanced on behalf of the intervener-applicants.
9. As already observed earlier, a patty to a suit cannot be thrust on an unwilling plain tiff, unless otherwise provided by law. The Us is between the purchaser on one hand and lie vendor on the other except such unusual cases as are referred to in the case of Rasiklal Shankerlal Soni (AIR 1975 Guj 178) (supra), no other person is entitled to be impleaded as a party to the suit. In case, the intervener-applicants' prayer for impleadment had been allowed, the result would have been to convert the lis as a dispute between the defendants inter se. At all events the controversy in the suit would have been unnecessarily enlarged by the introduction of facts with which the plaintiff would have no direct concern.
10. Learned counsel for the interveners-applicants contended that the impleadment for the applicants is necessary in order to prevent multiplicity of suits. It is to be remembered that the decree in a suit for specific performance is not a decree in rem. It acts in personem and binds only the persons who were parties to the suit. It is well known that a person cannot pass a title to his vendee which is better than the title he himself possessed. The interveners-applicants claim to be members of a joint Hindu family along with original defendants. Their case was that the property in respect of which the plaintiff-opposite parties 1 and 2 had filed the suit for specific performance had been acquired with the help of joint family funds. There may be other persons who may have adverse interest to that of the defendant-opposite party 3 over the property in dispute. The result of the decree even if adverse to defendant-opposite party 3 shall not bind either the interveners-applicants or any other person claiming to have interest in the property in suit. On the reasoning advanced by tine learned counsel for the intervener-applicants on this aspect of the case would make it permissible for the Court to direct under Sub-rule (2) of Rule 10 of Order 1 of the Code to implead every person claiming any interest in the suit property. The test of preventing multiplicity of suits will, therefore, result in the obnoxious consequence of converting a suit for specific performance into a roving inquiry into diverse claims against the defendant to the suit. True it is that the Courts have pointed out that the policy of law is to avoid multiplicity of legal proceedings. The dictum, however, is not a rule of universal application and has to be applied within the four corners of the statute governing jurisdiction and procedure.
11. For the reasons already stated above, I find no force in this revision application which is accordingly dismissed. The order passed by the trial Court on February 3, 1983, is hereby confirmed.