GOUR HARI DAS Vs. BIMAL KUMAR GIRI

JUDGEMENT

(1.) THIS revisional application is at the instance of the plaintiff and it is directed against an order dated September 2, 1981 passed by the learned Munsif, 1st Court, Contain in O. S. no. 336 of 1980 allowing the application of the opposite party no. 3 under Order 1 Rule 10 of the Code of Civil procedure and adding the opposite party no. 3 as a defendant in the suit. We petitioner filed the suit for specific performance of contract against opposite parties nos. 1 and 2. It was alleged that opposite party no. 1 on March 6, 1977 entered into an agreement for sale in respect of the suit property in favour of the petitioner for a consideration of rs. 3000/- and obtained Rs. 2500/- as earnest money. The balance was to be paid at the time of the execution and registration of the sale deed within six months from that date. The opposite party no. 1 refused to execute the sale deed and the petitioner came to learn that the opposite party no. 1 had in the meantime sold the property to the opposite party no. 2 by a registered Kobala. The petitioner thereafter instituted the suit on August 7, 1980 for specific performance of contract. On July 14, 1981 opposite party no. 3 filed an application under order 1 Rule 10 of the Code of Civil procedure for being added as defendant. It was alleged that the suit property was purchased by opposite party no. 2 and the opposite party no. 3 is a co-sharer and as such he has filed an application for pre-emption being Misc. Case no. 42 of 1980 against the opposite party no 2. The said application under Order 1 Rule 10 was opposed by the plaintiff. After bearing both parties the learned Munsif by the impugned order allowed the application under Order 1 Rule 10 of the Code of Civil Procedure and added opposite party no. 3 as defendant. The petitioner has challenged the said order in the present Rule.

(2.) MR. Patra, learned Advocate for the petitioner, has argued that under Order 1 Rule 10 (2) of the Code of Civil PROcedure the Court has power to add a person as a party if he is either a necessary party or a proper party. It has been contended that in the instant case as the suit is for specific performance of contract the opposite party no. 3 is neither a necessary party nor a proper party. The learned Munsif has acted illegally and with material irregularity in exercise of his jurisdiction by allowing the application under Order 1 Rule 10 of the code of Civil Procedure. In support of his contention, Mr. Patra has referred to a Full Bench decision of Madhya Pradesh High Court in PANNE KHUSHALI AND another vs. JEEWANLAL MATHOO KHATIK and ANOTHER reported in A. I. R. 1976 Madhya Pradesh 148. This decision dealt with the provision of Order 1 Rule 10 (2)of the Code of Civil Procedure in connection with a suit for specific performance of contract. It has been held in this decision that under Order 1 Rule 10 (2)of the Code of Civil Procedure the Court has no jurisdiction or power to add a person as a party who is neither a necessary party nor a proper party. It has further been held that in a suit for specific performance of contract for sale, strangers to the contract making claim adverse to the title of defendant (Vendor) contending that they are the co-owners of the contracted property are neither necessary for proper party and are, therefore, not entitled to join as parties to the suit.

(3.) MR. Ganguly, learned Advocate for the opposite party no. 3, has argued that opposite party no. 3 has instituted the pre-emption case against opposite party no. 2 on account of a sale made in favour of the opposite party no. 2. It has been further contended that the petitioner has been set up by the opposite party no. 2 to defeat the claim for pre-emption made by the opposite party no. 3. It has been further argued that the opposite party no. 3 has interest in the suit property and as such in order to avoid multiplicity of proceeding opposite party no. 3 should be allowed to contest the suit. Mr. Ganguly has referred to RAZIA begum v. SAHABZADI ANWAR BEGUM AND others reported in A. I. R. 1958 Supreme court 886. In that case the plaintiff had filed a suit claiming that she was the legally wedded wife of the defendant and she was entitled to a sum of Rs. 2000/-as KHARCH-E-PANDAN. The defendant admitted the claim of the plaintiff. A third party filed an application impleading herself and her son on the ground that she. was also the legally married wife of the defendant and she was interested in denying the marriage of the plaintiff with the defendant. It has been held in this decision that the question of addition of parties under Order 1 Rule 10 of the Code is generally not one of initial jurisdiction of the Court, but of judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case. 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 the litigation. Where the subject-matter of a litigation is a declaration as REgards status or as regards a legal character, the rule of present or direct interest may be relaxed in a suitable case where the Court is of opinion that by adding that party it would be in a better position effectually and completely to adjudicate upon the controversy. Mr. Ganguly has also referred to G. M. V. KRISHNAMACHARI v. M. D. DHANALAKSHMI ammal AND OTHERS A. I. R. 1968 Madras 142. It has been laid down in this decision that the language employed under order 1 Rule 10 (2) of the Code of Civil procedure confers upon the Court a very wide jurisdiction and the Court should not be disposed to a curtailment of the powers more than what is expressly decided by judicial decisions binding on it. It has been further held that in applying Order 1 Rule 10 (2) the only question is whether an applicant who applies for being added as a party to the suit has got a direct interest in the subject-matter in dispute which would be affected by the result of the litigation.