RASIKLAL SHANKERLAL SONI Vs. NATVERLAL SHANKERLAL UPADHAYA

JUDGEMENT

(1.) This civil revision application raises an interesting question about the joinder of parties in a suit for specific performance in which only relief which is claimed is that the original defendant to the suit should execute a document in plaintiffs favour or the same should be executed through the court. The dispute between the parties is in respect of the house bearing Panchayat No. 99 situated in village Kathlal. The petitioner who is the original plaintiff filed Regular Civil Suit No. 85 of 1971 in the Court of the Civil Judge Junior Division Kapadvanj alleging that opponent No. 1. original defendant No. 1. had mortgaged the suit house to him by a registered document dated October 9 1967 for the amount of Rs. 1500.00. On or about April 8 1969 a second mortgage for Rs. 2000.00 was created by the said defendant by a registered document. Defendant No. 1 was in need of money and he had taken in all Rs. 4051 P. as loan from him. Defendant No. 1 then entered into an agreement with the petitioner to sell the suit property on September 29 1970 and this agreement is produced in the suit at Ex. 49. By a notice dated January 23 1971 the petitioner called upon defendant No. 1 to remain present at 11-00 a.m. on February 6 1971 in the office of the Sub-Registrar of Documents at Kapadvanj in order to get executed and registered the deed of sale in pursuance of the agreement of sale entered into on September 29 1970 Defendant No. 1 did not remain present. On these allegations the plaintiff filed the aforesaid suit for specific performance of the agreement. Defendant No. 1 filed written statement and the main pleas raised by him are that he had not executed any agreement of sale and that he had not received any amount as loan from the plaintiff. On these pleadings the learned trial Judge raised the following issues:

(2.) Now the provisions relating to adding of parties are to be found in sub-rule (2) of rule 10 of Order 1 of the Civil Procedure Code which provide that the Court may at any stage of the proceeding 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. Under these provisions a person may be added as a party to the suit in two cases only namely (1) when he ought to have been joined and is not joined that is whenever he is a necessary party and (2) when without his presence the quit cannot be completely adjudicated. There is no jurisdiction to add a party in any other case merely because that would save a third person the expense and botheration of separate suit for seeking adjudication of a collateral matter which was not directly and substantively in issue in the suit into which he seeks inclusion. The general rule is that the plaintiff is the master of his suit. He is dominus litis. He cannot be compelled to fight against a person against whom he does not wish to light and against whom he does not claim any relief. It is discretionery to grant a relief under Order 1 rule 10(2) of the Civil Procedure Code. In exercising the discretion the Court will invariably take into account the wishes of the plaintiff before adding a third person as a defendant to his suit. Only in exceptional cases where the Court finds that the addition of the new defendant is absolutely necessary to enable it to adjudicate effectively and completely the matter in controversy between the parties will it add a person as a defendant without the consent of the plaintiff. Vide Banarsi Dass Durga Prasad v. Pannalal Ram Richhpal Oswal and others A. I. K. 1969 Punjab 57; Jivanlal Damodardas Wani v. Narayan Ukha Sali A. I. R. 1975 Bom. 148 and the decision of my brother J. M. Sheth in Civil Revision Application No. 514 of 1972 decided on April 9, 1974.

(3.) Now the question whether a person should be added as a Party to the suit or not depends on the nature of the suit and the allegations made in the pleading. In the present case we are concerned with the suit for specific performance. The material allegations in the plaint are that defendant No 1 had executed an agreement of sale in favour of the plaintiff and that defendant No. 1 had received full consideration for the said transaction. Of the basis of these allegations the only relief which is claimed is that defendant No. 1 should execute a document of sale in plaintiffs favour or the same should be got executed through the Court. The main issue to be decided in the suit is whether an agreement had been executed by defendant No. 1. the agreement for sale constitutes the basis of the plaintiffs right to the relief which he claims and is also the basis of the suit. The contract between the plaintiff and defendant No. 1 regulates the rights or liability of the parties. The necessary party in a suit for specific performance of contract for sale are parties to the contract or if they are dead their legal representatives as also a person who purchased the property from a vendor after the contract. Where a person sues for specific performance of an agreement of sale impleading the executent of the agreement as a party there is no necessity to determine the question of vendors title. The fact that the title which the purchaser may acquire might be defeasible by a third party as for example by the persons claiming right to the property under Hindu law is no ground for refusing specific performance if the purchaser is willing to take such title as the vendor has. Vide C. V. Muni Samappa v. Kolala Gurunanjappa and others A.I.R. 1950 Madras 90; and N. T. Palankaisamy Chettiar by agent V.D. Sitarama Mudaliar v. Komara Chettiar aud others A.I.R. 1950 Madras 91. The main question involved in the present suit is with respect to the execution of the agreement of sale The question of title of defendant No. 1 is not at all in issue. There is no necessity to determine the vendors title. The present opponents Nos. 2 and 3 cannot be said to be necessary parties for adjudicating the questions involved in the suit. An order for addition as parties cannot be made merely to avoid multiplicity of suit. The present suit is a simple suit for specific performance of an agreement. No relief in claimed against opponents Nos. 2 and 3. There is no claim for possession of the suit property. The suit is merely for the enforcement of the agreement of sale between the plaintiff and defendant No. 1. It is thus clear that opponents Nos. 2 and 3 cannot claim to be joined as parties to the plaintiffs suit. On this point I am supported by the decisions of the Madras High Court in C. V. Muni Samappa v. Kolala Gurunanjappa and N. T. Palanisamy Chettiar v. Komara Chettiar (supra). A simple suit for specific performance on agreement of sale cannot be allowed to be converted into a suit for title.