Pramod Kumar Dang vs Vishnu Dutt Mehta
2002 Latest Caselaw 245 Del

JUDGMENT

J.D. Kapoor, J.

1. Through this application, review of the order dated 18.5.2000 is being sought on the ground that Dr. Surender Mohan with whom defendant No. 1 had entered into agreement to sell after having agreed to sell the property to the plaintiff was imp leaded as defendant No. 2 as according to the applicant-Dr. Surinder Mohan he is neither a necessary nor a proper property so as to render effective and complete adjudication of the disputes involved in the suit.

2. The main premise of the review of the said order is the judgment of the Supreme Court in Anil Kumar Singh v. Shivnath Mishra alias Gadasaguru . In this case Daulat Singh, father of the petitioner filed Civil Suit No. 51 of 1989 for specific performance of a contract of sale said to have been executed on 22.9.1986 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 the respondent also as a party-defendant in the suit. The contention of the petitioner is that Shivnath Mishra, the vendor, had colluded with his sons and wife and had obtained a collusive decree in Suit No. 393 of 1990 under Section 229B 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 respondent is a necessary and property party. The trial court dismissed the petition and on revision, by the impugned order dated 13.7.1994, the High Court of Allahabad dismissed the Civil Revision No. 369 of 1993. The contention of the petitioner was 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 favor of the petitioner, 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. It was held that subsequent interest said to have been acquired by the respondent by virtue of a decree of the court is not a matter arising out or in respect of the same act or transaction or series of acts or transactions in relation to the claim made in the suit.

3. At the same time, Supreme Court also observed that 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 protection, inconvenience and to avoid multiplicity of proceedings. A person may be added as a party-defendant to the suit though no relief may be claimed against him or her provided his or her presence is necessary for a complete and final decision on the questions involved in the suit.

4. Allegedly, defendant No. 1 had entered into agreement to sell with the plaintiff and subsequently not only entered into another agreement to sell with defendant No. 2 but also executed Will in his favor. It is contended by learned counsel for the plaintiff that defendant No. 2 needs to be imp leaded as legal heir of defendant No. 1 by virtue of the Will executed by defendant No. 1 in favor of defendant No. 2. I do not find any force in the contention since interest of defendant No. 2 mainly arises from the agreement to sell. Execution of the Will was just an added additional precaution or protection defendant No. 2 took for protecting his right arising from the agreement to sell. Had defendant No. 2 been made the beneficiary by virtue of sell, the question of executing agreement to sell against consideration would not have arisen. Obviously agreement to sell does not form basis for impleading defendant No. 2 as a legal heir. By virtue of agreement to sell, subsequent interest has been acquired by defendant No. 2.

5. Since in the instant case specific performance of contract between the plaintiff and defendant No. 1 is being sought, defendant No. 2 in the words of Supreme Court in Anil Kumar Singh's case is neither a necessary nor proper party to adjudicate upon the disputes arising in the suit in question. Thus, main relief would be against to L.Rs. of defendant No. 1 and not against defendant No. 2 as defendant No. 2 was not privy to contract between the plaintiff and defendant No. 1. However, in the absence of non-impleadment of L.Rs. of defendant No. 1, defendant No. 2 cannot be allowed to be imp leaded even on the premise that his presence may be necessary as a party-defendant even if no relief is claimed against him. As a consequence, impugned order dated 18.5.2001 is hereby recalled. The name of Dr. Surender Mohan is hereby deleted from the array of parties. However, any observation made in this order would not be an expression of opinion on the merits of any subsequent actions to be resorted to by the plaintiff in this regard.

6. By this order, RA 27/2001 & IA 1134/98 (under Order 1 Rule 10 CPC) stand disposed of.