B. MUNISWAMY Vs. SRI. B. GOPALA KRISHNA

JUDGEMENT

(1.) THE first Defendant in a suit for specific performance has preferred the above Civil Revision Petition questioning the order passed by the trial Court under Order 1, Rule 10 Code of Civil Procedure dismissing the I.A. XXIV to implead the Karnataka State Financial Corporation as a party.

(2.) IT is the case of the Plaintiff that he is entitled to specific performance of the property notwithstanding on the basis of an agreement of sale and the matter was set for evidence when many applications were filed including the one which is subject matter of the above Civil Revision Petition. The first Defendant sought to implead Karnataka State Financial Corporation as one of the Defendant. It is sought on the ground that as per agreement the Plaintiff was to pay certain amount to the Karnataka State Financial Corporation out of the sale consideration amount. But as agreed, the Plaintiff has failed to pay. The Court found that the fact there is an agreement for payment of certain amount to the Karnataka State Financial Corporation is not a ground at all to implead the Karnataka State Financial Corporation in this suit which is for specific performance of the agreement of sale. Karnataka State Financial Corporation is not a party to the said agreement. Challenging the order Mr. Seetharam contends that Karnataka State Financial Corporation is necessary party, the Plaintiff is already not willing and not ready to perform his part of contract and if Karnataka State Financial Corporation comes to the picture, the money due will be paid to Karnataka State Financial Corporation which will go to show the conduct of the Plaintiff.

(3.) IN the case reported in Gundu Baballi Banajwade Vs. Raghavendra Hari Kale and Ors, 1968 (2) Mys LJ 243, the question as to whether a person in possession of mortgage is necessary party to be impleaded. This Court took the view that it is not a necessary party and dismissed the application holding as follows: In a suit for specific performance of an agreement for sale of land entered into by respondents -1 to 3, respondent -4 made an application under Order I, Rule 10(2) Code of Civil Procedure, for being added as supplement Defendant on the ground that he was in possession of the suit land as possessory mortgagee and also in pursuance of and in part performance of an agreement of sale, and that he was already owner of a portion of the land. Held: Having regard to the nature of the suit, the relief asked for and the nature of claim of respondent -4, respondent -4 should not be added as a supplement Defendant. The present suit was only for specific performance of the agreement of sale and not for possession of the land or for partition and any decree passed will not itself affect the right, if any, of respondent -4. On the other hand, addition of respondent -4 will radically transform the character of the suit, complicate the issues in the suit, will compel the Plaintiff to amend his plaint in order to resist the rival title asserted by respondent -4 and will require investigation of the title of respondent -4.