C.R.A. No. 25 of 1973

9th March, 1973.

Petitioner Counsel: V.R. Padhye
Respondent Counsel: J.N. Khare, V.S. Kanitkar

Cases Cited:
1947 NLJ 497=AIR 1948 Nag. 181.
AIR 1945 Cal. 355.
(1834) 40 ER 848.
1866 (2) Ch. 164.
ILR 5 Bom. 177.
ILR 40 Mad. 365.
4 Bom. HC Rep. P. 9.
ILR 19 Mad. 211.
AIR 1923 All. 112.
AIR 1958 SC 886.

JUDGMENT

JUDGMENT:- This is a plaintiff's revision questioning the validity and propriety of the order made by the Joint Civil Judge, Senior Division, Nagpur, under Exh. 26, by which the learned Judge allowed that application of a stranger to this suit to be impleaded as a co-defendant against the will of the plaintiff.

2. The plaintiff sued on the allegations that on May 8, 1971, defendant agreed to sell agricultural lands for consideration fixed at the rate of Rs. 2300/-per acre. Plaintiff was put in possession after Rs. 10,000/- out of the consideration were paid to the defendant. Some other agreement of June 5, 1971, is pleaded by the plaintiff, calling it to be an additional agreement. It is further alleged that the plaintiff served a notice for the purpose of completing the transaction but by a reply dated January 10, 1972, the defendant has denied the terms and condition stated in the agreement as per paragraph 3 of the plaint. The plaintiff has pleaded the further course of events and alleged that it is defendant who is resiling from the contract and is not executing the sale-deed in favour of the plaintiff, though he is willing to complete the transaction. Some proceedings under Order 39, rule 1, Civil Procedure Code also appear to have been taken. The defendant appears to have filed written statement and is opposing the claim of the plaintiff as laid.

3. However, non-applicant No. 2 here, one Nandlal filed an application in this suit on September 2, 1972, which was taken as Exh. 26. He alleged that he has interest in the property and Tulsabai, i.e. the defendant, was incompetent to enter into an agreement of sale in favour of the plaintiff. He further submitted that he is a necessary party in this suit.

4. Though the application filed at Exh. 26 thus disclosed some interest of Nandlal, the plaintiff chose and still continues to choose, not to add him as a party in this litigation.

5. On the contrary, the plaintiff opposed the application for joinder as co-defendant by applicant Nandlal on the ground that in a suit filed for specific performance of an agreement to sell, Nandlal had no locus standi nor the Court had jurisdiction to direct that said Nandlal should be added as a co-defendant.

6. By the impugned order, however, the learned Judge took the view that Nandlal is complaining that this agreement of sale affects his rights in property and his presence would be necessary while deciding the disputes between the parties that would also avoid multiplicity of suits. While appreciating the relevant submissions, the learned Judge has taken into account what Nandlal relies upon, being a registered sale deed dated April 24, 1965. The learned Judge, upon his view, directed the plaintiff to amend the plaint so as to add Nandlal as a co-defendant.

7. Against this order, the present revision has been filed.

8. The power of the Court to add parties in such matters is referable to Order I, rule 10, Civil Procedure Code. Sub-rule (2) empowers the Court either upon or without application to direct parties to be joined who ought to have been joined or whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. The provisions which are ex facie enabling clearly indicate the conditions for exercise of that power. It is only when the Court comes to the conclusion that for the purpose of full adjudication of the matters in issue or to settle the controversies, a party which is not added is necessary, the provisions of sub-rule (2) are attracted. It is plain that unless the party proposed to be added has directly or indirectly an interest in the controversy or its adjudication, the power cannot be invoked.

9. Now, in the present case, it is a simple suit for specific performance of an agreement to sell certain property. That agreement will have to be established as pleaded by the plaintiff himself. Not only, before the Court can be asked to pass a decree for specific performance, the plaintiff is bound to establish all the conditions that are requisite for completing such a sale transaction. It is implicit in such a controversy that if the evidence indicates or if a plea is raised that there is no title under which such an agreement could have been at all entered into, the suit would fail. That does not mean that the Court is enjoined to enter upon the questions which are neither pleaded nor are in issue If the defendant against whom such a suit filed has a defective title but agreement is properly enforceable, the plaintiff may choose to take even the defective title in such a suit. Similarly, there may be a title in part with the defendant and that may ultimately pass to the plaintiff In neither of these cases a stranger to the agreement and hence to the controversy who claims to be entitled to the property as such can come before the Court either as necessary or proper party.

10. By very nature, the suit for specific performance is limited to the agreement and several pleas that can either defeat or lead to its enforcement or seek any other substituted reliefs alone fall for consideration. The cause of action in such suit is the agreement and its enforceability and in this sense such a suit is circumscribed in scope. In Mt. Nagi and another v. Damodhar Jagobaji Tidke and others1 and Prem Sukh Gulgulia v. Habib Ullah2 such a matter had been subjected to eminent judicial pronouncement. In Nagpur Case somewhat similar circumstances were available. In that litigation defendants Nos. 1 and 2 had executed an agreement of sale of a house in favour of plaintiff. That agreement was being enforced. The plaintiff himself had added two other persons i. e. defendant No. 3 and 4, and they objected their joinder. The learned' trial Judge took the view that though the agreement was by defendants Nos 1 and 2, the other defendants could be joined under Order 2 rule 3 Civil Procedure Code. The High Court found that this order was entirely without jurisdiction. As to the scope of the suit for specific performance the High Court observed:

''...Clearly enough if in a suit for specific performance it is not open to join other causes of action, then the action of the learned trial Judge was clearly without jurisdiction."Referring to English cases viz, Taskar v. Small3 and De Hoghton v. Money4 the High Court observed that these are the authorities on the point. The High Court further followed the view expressed in Luckmsey Ookerda v. Fazulla Cassumbhoy5, Rangayya Reddi v. Subramaniya Ayyar6 and Premsukh v. Habib Ullah to finally rule that as defendants No. 3 and 4 were setting up independent title, they could not be joined in the suit for specific performance and they ought to have been discharged.

11.Calcutta Case is followed in Nagpur Case. It is of interest to find in that case an illustration which may usefully be extracted. Court observes

"B agrees to sell a property to A. After the contract A gets a notice from a third party (C) informing him that the property is not of his vender's (B) but of the claimant, C, and that he would be purchasing it at his risk. Thereafter B refuses to execute the conveyance on the ground that the contract had been discharged by breach on A's part. We do not see on what principle A would be allowed to bring a suit against B and C asking the Court to determine first the question whether B or C is really the owner and then if it finds B to be the owner to decree specific performance against him."The Calcutta Case states that in such a contingency the character of the suit would be different and it would be really a title suit between B and G and not a suit for specific performance between A and B.

12. As far as this Court is concerned, the matter appears to be covered by Luckumsey Ookerda v. Fazulla Cassumbhoy. The plaintiff had sued in that litigation under an agreement to purchase and for its enforcement and for grant of specific relief. In the very same suit plaintiff prayed for a declaration that other defendants were not entitled to have any charge upon the premises and they might be ordered to deliver up the title-deeds, and that the first defendant should be ordered to specifically perform the contract with plaintiff. Justice Sargent referring to the rule of the Court of Chancery in De Hoghton v. Money pointed out that a mere stranger cannot be a party to a suit for specific performance and the same rule has always been followed in the Bombay High Court and further referred to Naoroji v. Rogers7with approval. No doubt, that reasoning is based principally on the footing that two distinct causes of action cannot be joined together in such a suit. But that would be the result if 3rd party comes to seek a declaration of his rights independently. Merely because such a controversy is raised by a defendant stranger there would not be any difference in principle.

13. The law appears to be clear to indicate that the controversy raised in such a matter is limited to the agreement and cannot be converted into an entirely different controversy by adding parties.

14. However, the learned counsel appearing for Nandlal strenuously urges that this will be a fraud on his title. A person who knows that some litigation is going on that purports to affect his title cannot be a mere spectator, but he should be permitted to enter the arena and put forth before the Court whatever may be his plea. He refers to me Alagappa Mudliar v. Sivaramsundara Mudliar8, Noor Mohammad v. Natwarlal and others9 and Razia Begum v. Anwar Begum10.

15. In Madras decision what was being considered was essentially an agreement for partition. One of the items liable to be partitioned was a huk right of a public charity and certain other lands belonging to the same charity. As it was in effect and in substance a partition suit, the Court took the view that the third party who was a minor could be a proper party. That is surely on the basis that everyone interested in partition must be before the Court.

16. In Allahabad decision, the suit was, no doubt, for specific performance of an agreement of lease. There the question which arose was whether, assuming there was an agreement, whether it was made with the plaintiff or with the plaintiff's father and a finding was reached that the contract was with plaintiff's father. Upon that footing, plaintiff's father was permitted to be joined as co-plaintiff. The case is clearly an authority for pointing out that plaintiff's father was the real plaintiff upon the finding reached by the Court.

17. The Supreme Court decision referred to by the learned counsel does not at all help him. What their Lordships were considering was a litigation wherein certain declarations were sought with respect to property and there it was observed:

''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 litigation. Where the subject-matter of litigation is a declaration as regards status or a legal character, the rule of present or direct interest 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 effectually and completely to adjudicate upon the controversy. The cases contemplated in the last proposition, have to be determined in accordance with the statutory provisions of sections 48 and 43 of the Specific Belief Act...." (Emphasis provided).

18. The ruling in that case does not cover the controversy in the present suit. In fact, where a Civil Court's power is invoked to declare a particular right of status, different considerations would arise and there also the rule of present and direct interest may be relaxed. In cases upon agreement or contracts the said rule of present and direct interest must govern the joinder of the parties. The decision is not an authority that a stranger to an agreement in suit can be joined upon any principle.

19. This may be viewed from another angle. Can it really be said that the stranger to an agreement is concerned with the relief sought by the plaintiff or the defences raised against such specific performance? Firstly, he not being a party and being a total stranger, any decision inter-parties would not affect his right. It follows that there would be, therefore, no prejudice to such a party. The Court that is being called upon to enforce the agreement is not settling any dispute between the plaintiff and the stranger and as such the presence of such a person is neither necessary nor of any aid to decide upon the controversy. The decisions relied upon by the learned counsel, on the other hand, indicate that the rule in this respect must be of present and direct interest for the purpose of enabling the Court to order joinder of parties or permit any stranger to step in the litigation via Order 1, rule 10 of the Code of Civil Procedure.

20. It is clear, therefore, that the present litigation in its very essence, is of limited import. By joinder of Nandlal the controversy will be enlarged which is of an independent nature. There may be a conflicting title between Nandlal and the defendant, but that has nothing to do with the case as is laid by the plaintiff. Nandlal remains a stranger to the cause of action and also to the suit. His rights are also not affected by the present litigation, if really there is any truth in what he says.

21. In the result it has to be concluded that the order made by the learned trial Judge granting the prayer of intervener Nandlal to be a co-defendant is entirely erroneous. The same will stand vacated. Application filed by Nandlal is hereby dismissed.

22. The revision application consequently is allowed. Applicant's costs shall be paid by opponent No. 2. There will be no order as to costs as far as opponent No. 1 is concerned.

Revision application allowed.