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PETITIONER: ANIL KUMAR SINGH

       Vs.

RESPONDENT: SHIVNATH MISHRA AND GADASA GURU

DATE OF JUDGMENT24/10/1994

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. VENKATACHALA N. (J)

CITATION:  1995 SCC  (3) 147        JT 1995 (1)   273  1994 SCALE  (4)953

ACT:

HEADNOTE:

JUDGMENT: ORDER 1.Daulat  Singh, father of the petitioner filed  Civil  Suit No.51/89 for specific performance of a contract of sale said to have been executed on September 22, 274 1986  agreeing to sell 7.17 acres of the land  bearing  plot No.655.  Pending  decision in the suit, Daulat  Singh  died. The  petitioner  came on record as legal  representative  of Daulat  Singh.  He filed an application under Order 6,  Rule 17  CPC  seeking  leave to amend the  plaint  by  impleading respondent  also  as  a party defendant in  the  suit.   The contention  of  the petitioner is that Shivnath  Misra,  the vendor, had colluded with his sons and wife and had obtained a collusive decree in Suit No.393/90 under Section 229-B  of the  U.P.  Zamindari  Abolition and Land  Reforms  Act.   By operation thereof, they became co-sharers of the property to be  conveyed  under the agreement and,  therefore,  the  re- spondent  is a necessary and proper party.  The trial  court dismissed  the  petition and on revision,  by  the  impugned order  dated  July  13, 1994, the High  Court  of  Allahabad dismissed the civil Revision No.369/93. Thus this S.L.P. 2.The  contention of the petitioner is that  the  respondent having  secured  an interest as a co-owner in  the  land  by operation of decree of the Court to effectuate the  ultimate decree  of the specific performance that may be  granted  in favour of the petitioners, the respondent is a necessary and proper  party, and the High Court, therefore, has  committed grievous error in refusing to bring the respondent on record as second defendant.  He seeks to place reliance on Order  1 Rule  3, Order 1 Rule 10(2) and Order 22, Rule 10 C.P.C.  We find no force in the contention. 3.  Order 22, Rule 10 postulates of continuation of suit  by or  against  a  person has,  by  devolution,  assignment  or creation,  acquired  any interest during the pendency  of  a suit, by leave of the Court.  The obtaining of a decree  and

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acquiring the status as a co-owner during the pendency of  a suit   for  specific  performance,  is  not  obtaining,   by assignment  or  creation  or  by  devolution,  an  interest. Therefore,  Order  22, Rule 10 has no  application  to  this case. 4.   Equally, order 1 Rule 3 is not applicable    to     the suit for specific performance’ because  admittedly,      the respondent was not a party    to  the contract.  Rule  3  of Order 1 provides    that:               "3. Who may be joined as defendants....... All               persons   may  be  joined  in  one   suit   as               defendants where....               (a)   any  right to relief in respect  of,  or               arising out of, the same act or transaction or               series  of acts or transactions is alleged  to               exists against such persons, whether  jointly,               severely or in the alternative; and               (b)   if  separate suits were brought  against               such  persons, any common question of  law  or               fact would arise". 5.   In  this case, since the suit is based on agreement  of sale said to have been executed by Misra. the sole defendant in  the  suit,  the subsequent interest said  to  have  been acquired  by-the  respondent by virtue of a  decree  of  the Court  is not a matter arising out of or in respect  of  the same act or transaction or series of acts or transactions in relation to the claim made in the suit, 6.   Order 1, Rule 10(2) postulates that:               "10(2)  Court may strike out or add  parties.-               The Court may at any stage of the proceedings,               either  upon  or without  the  application  of               either party, and on such term as May appeared               to the Court to be               275               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 or 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". 7.By operation of the above-quoted rule though the Court may have  power  to strike out the name of  a  party  improperly joined  or  add  a party either on  application  or  without application of either party, but the condition precedent, is that  the Court must be satisfied that the presence  of  the party to be added, would be necessary in order to enable the Court  effectually  and completely to  adjudicate  upon  and settle  all  questions  involved in the suit.   To  bring  a person as party defendant is not a substantive right but one of  procedure  and the Court has discretion  in  its  proper exercise.  The object of the rule is to bring on record  all the  persons who are parties to the dispute relating to  the subject  matter  so that the dispute may  be  determined  in their  presence  at the same time without  any  protraction, inconvenience and to avoid multiplicity of proceedings. 8.   The  question  is whether the person who  has  got  his interest  in the property declared by an independent  decree but not a party to the agreement of sale, is a necessary and proper party for effectually and completely adjudicate  upon and settle all the question involved in the suit.  The ques- tion  before the Court in suit for the specific  performance is whether the vendor had executed the document and  whether

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the conditions prescribed in the provisions of the  Specific Relief  Act have been complied with for granting the  relief of specific    performance. 9.   Sub-rule (2) of Rule 10 of Order 1 says that "necessary parties are persons who ought to have been joined as a party to  the suit, a necessity to the constitution of the  proper suit  without  whom no relief or order can be  passed".   In order  that  a person may be considered a  necessary  party, defendant to the suit, the conditions precedent must be  (1) that  there  must be a right to some relief against  him  in respect  of the dispute involved in the suit; and  (2)  that his  presence  should be necessary to enable  the  court  to effectually and completely to adjudicate upon and settle all the questions involved in the suit.  Since the respondent is not a party to the agreement of sale, it cannot be said that without her presence the dispute as to specific  performance cannot  be  determined.  Therefore, she is not  a  necessary party. 10.  A person may be added as a party defendant to the  suit though  no  relief may be claimed against  him/her  provided his/her  presence  is  necessary for a  complete  and  final decision  on  the  question involved in the  suit.   Such  a person  is  only  a proper party  as  distinguished  from  a necessary party.  In Razia Begum v.  Sahebzadi Anwar Begum & Ors. , 1959 SCR 111, in a suit instituted for a  declaration of  legal  status  as a married  wife,  the  question  arose whether  another  person claiming to be the third  wife  and sons through her are necessary and proper party, who  sought to come on record under Order 1 Rule 10(2).  This Court held that  in a suit for declaration, as regards status or  legal character  under s.42 of the Specific Relief Act,  the  rule that  in  order that a person may be added as a  party  must have a present or 276 direct  interest in the subject matter of the suit,  is  not wholly applicable, and the rule may be relaxed in a suitable case  where the court is of the opinion that by adding  that party  it would be in a better position to  effectually  and completely  to  adjudicate upon the  controversy.   In  such suits the court is not bound to grant the declaration prayed for,  on a mere admission of the claim by the defendant,  if the court has reasons to insist upon clear proof, apart from the  admission.  It was therefore, held that  a  declaratory judgment  since binds not only the parties  actually  before the  court  but  also  the  persons  claiming  through  them respectively  within  the meaning of s.43  of  the  Specific Relief Act, they are proper parties.  The petitioner is  not claiming  this legal status nor through the respondent.   In Lala  Durga Prasad and Anr. v. Lala Deep Chand & Ors.,  1954 SCR  360, in a suit for specific performance the  subsequent purchaser  was held to be a necessary party.  In  this  case the petitioner is merely seeking the specific performance of the  agreement of sale.  Section 15 of the  Specific  Relief Act,  1963,  provides that except as otherwise  provided  by this Chapter, the specific performance of a contract may  be obtained by  "any party thereto"; and under s. 16 the  Court has  been  given  discretion and personal  bars  to  relief. Therefore,  based  on the fact situation,  the  court  would mould the relief The respondent is neither a necessary nor a proper  party to adjudicate upon the dispute arising in  the suit so as to render an effective and complete  adjudication of the dispute involved in this suit. 11.Therefore, the High Court, though for different  reasons, has rightly refused to interfere with the order of the trial court.  The S.L.P. is accordingly dismissed.

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