1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.482/2009 1] Shri Vijay Simartamal Bora Age 58 years, Occ-Business & Agril. 2] Shri Ajit Simartamal Bora Age 56 years, Occ-Business & Agri. 3] Sow.Nirmala Ashok Bora Age 52 yrs, Occ-Household & Agri. All R/o Mahatma Gandhi Road Ahmednagar. ... PETITIONERS [ORIG.PLAINTIFFS] VERSUS 1] Shri Sharad Mansukhlal Mutha Age 61 yrs, Occ-Agri & Business R/o Maniknagar, Nagar-Pune Road, Ahmednagar 2] Nirmal S/o Sharad Mutha Age 30 yrs, Occ-Business, R/o Maniknagar, Nagar-Pune Road Ahmednagar [Respondent no.2 added as per leave granted by this Hon’ble Court dt.7/6/2010] ... RESPONDENT [ORIG.DEFENDANT] 2 .... Shri L.B.Pallod,Adv.for petitioners. Shri R.R.Mantri,Adv. for Respondent No.1 Shri D.K.Kulkarni,Adv.for Respondent No.2 .... CORAM : R.K.DESHPANDE,J. DATE : 2/8/2010. ORAL JUDGMENT: 1] This Writ Petition challenges the order dated 5/12/2008 passed by the learned III Joint Civil Judge, Senior Division, Ahmednagar below Exh.183 in Special Civil Suit No.62/2001 Exh.183 was the application filed by respondent no.2 Nirmal Sharad Mutha under Order 1 Rule 10 of C.P.C. for adding him as a necessary and proper party in the suit. The same has been allowed by the learned III Joint Civil Judge, Senior Division, Ahmednagar by the impugned order dated 5/12/2008. 2] Notice in this matter was issued on 27/1/2009. Shri D.K.Kulkarni, the learned counsel appears for respondent no.2 the original applicant and who had filed Exh.183. The respondent no.1 is also served and Shri R.R.Mantri, the learned counsel appears for respondent no.1. By an order dated 8th December 2009, this Court had informed the parties that the Petition will be finally disposed of at the stage of admission. The learned counsels for the parties agree that the matter can be disposed of finally. Hence Rule. Rule made 3 returnable forthwith. By consent of the learned counsels for the parties, Petition is heard finally. 3] The petitioner is the original plaintiff and has filed Special Civil Suit No.62/2001 seeking specific performance of contract dated 25/5/1992 by which it is alleged that the defendant no.1 who is respondent no.1 herein has agreed to sell the suit property to the plaintiffs. In the said suit, Application Exh.183 filed by respondent no.2 Nirmal Mutha who is son of the defendant in the said suit has made submission before trial Court that the suit property is ancestral property and he is having share in it. He has also argued that he was minor when the property was sold and the property was also not sold for his benefit and he is having legal interest and right in the suit property. The trial Court in the impugned order dated 5/12/2008 in paragraph no.5 has held as under : “5] It appeals to me that the applicant being the son of Sharad Mutha who has sold out the ancestral property to the plaintiff the applicant is a necessary and property in the present suit. Sharad Muthas has to prove that he has sought permission from the District and Sessions Court in order to sale the property. The shares or the legal rights in the properties are to be decided after hearing all the parties and by leading oral as well as documentary evidence. In order 4 to have a final adjudication of the matter applicant is required to be added as a defendant in the present suit. No prejudice would be caused to the plaintiff if he is added as a defendant. On the other hand the third party will help the Court in order to come to the final conclusion. I do not find any substance in the say filed vide Exh. 188. Whatever points have been raised in the say Exh.88 will be seen at the time of final hearing of the present suit. Whether the application filed by Nirmal Mutha is time barred or whether he is having any rights in the properties or not those are to be decided on merits.” 4] Shri Kulkarni, the learned counsel for respondent no.2 relied upon the decision of Apex Court reported in 1992 B.C.J. 949 in the case of Ramesh Hiranand Kundanmal V/s Municipal Corporation of Greater Bombay and others. He submits that his rights shall be affected if the decree for specific performance is passed and at any rate, it would avoid multiplicity of actions. He submits that the respondent no.2 was a necessary party in the said suit and relied upon para 14 of the judgment of the Apex Court cited supra, which is reproduced below : “14] It cannot be said that the main object of the rule is to prevent multiplicity of actions 5 though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objective. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e. he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only 6 object is to prosecute his own cause of action. Similarly provision was considered in Amon V. Raphael Tuck and Sons Ltd. (1956) 1 All ER 273, wherein after quoting the observations of Synn- Parry, J. in Dollfus Meig et Compagnie S.A. v. Bank of England, (1950) 2 All ER 611, that the true test lies not so much in an analysis of what are the constituents of the applicants’ rights but rather in what would be the result on the subject matter of the action if those rights could be established, Devlin, J. has stated :- “The test is ‘May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights.” 5] Shri Pallod, the learned counsel for petitioners has relied upon the decision of the Apex Court reported in 2005 SAR (Civil) 500 in the case of Kasturi V/s Iyyamperumal and others. He has relied upon paragraphs 2,19 and 21 of the said judgment. In support of his contention that necessary parties are those who are parties to the contract. Para 19 which is relevant is reproduced below : “19] It was also argued on behalf of respondent Nos.1 and 4 to 11 that to avoid multiplicity of suits it would be appropriate to 7 join the respondent Nos.1 and 4 to 11 as party defendants as the question relating to the possession of the suit property would be finally and effectively settled. In view of our discussions made hereinabove, this argument also which weighed with the two courts below has no substance. In view of the discussions made hereinearlier, the two tests by which a person who is seeking addition in a pending suit for specific performance of the contract for sale must be satisfied. As stated hereinearlier, first there must be a right to the suit property for the same relief against a party relating to the same subject matter involved in the proceedings for specific performance of contract for sale, and secondly, it would not be possible for the Court to pass effective decree or order in the absence of such a party. If we apply these two tests in the facts and circumstances of the present case, it would be evident that the respondent Nos.1 and 4 to 11 cannot satisfy the above two tests for determining the question whether a stranger/third party is entitled to be added under Order 1 Rule 10 of the CPC only on the ground that if the decree for specific performance of the contract for sale is passed in 8 absence of respondent nos.1 and 4 to 11, their possession over the contracted property can be disturbed or they can be dispossessed from the contracted property in execution of the decree for specific performance of the contract for sale obtained by the appellant against respondent nos.2 and 3. Such being the position, in our view, it was not open to the High Court or the trial Court to join other cause of action in the instant suit for specific performance of the contract for sale, and therefore, the two Courts below acted illegally and without jurisdiction in allowing the application for addition of parties in the pending suit for specific performance of contract for sale filed at the instance of respondent nos.1 and 4 to 11. The learned counsel for the respondent nos.1 and 4 to 11 however urged that since the two courts below had exercised their jurisdiction in allowing the application for addition of parties, it was not open to this Court to interfere with such order of the High Court as well as of the trial Court. We are unable to accept this contention of the learned counsel for the respondent nos.1 and 4 to 11.As discussed hereinearlier, it is open to the Court to interfere with the order if it is held that two courts below 9 had acted without jurisdiction or acted illegally and with material irregularity in the exercise of their jurisdiction in the matter of allowing the application for addition of parties filed under Order 1 Rule 10 of the CPC. The question of jurisdiction of the Court to invoke Order 1 Rule 10 of the CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct interest in the controversy involved in the suit. Can it be said that the respondent nos.1 and 4 to 11 had any direct interest in the subject matter of the instant suit for specific performance of the contract for sale ? In our view the respondent nos.1 and 4 to 11 had no direct interest in the suit for specific performance because they are not parties to the contract nor do they claim any interest from the parties to the litigation. One more aspect may be considered in this connection. It is that the jurisdiction of the court to add an applicant shall arise only when the Court finds that such applicant is either a necessary party or a proper party.” 6] The matter is covered by decision of the Apex Court delivered in Kasturi’s case cited supra. This case arose out of 10 suit for specific performance of contract and application was made under order 1 Rule 10(2) of C.P.C. by the persons who were not parties to the contract on the ground that they have independent title and possession in respect of the property and therefore they need to be added as parties to the said suit. The Apex Court has held that it was not open for the trial Court and High Court to permit such parties to be joined in the suit. The Apex Court has held that such orders are without jurisdiction and illegal. In this case also, the respondent no.2 is not party to the agreement dated 25/5/1992. He is the son of the defendant and claims that the suit property is an ancestral property at the hands of his father. He further submits that the respondent no.2 has share in the property and the defendant no.1 had no authority to sell the property without application. Thus the controversy in the suit for specific performance of the contract is sought to be enlarged into one of the title or for partition and separate possession. However, this cannot be permitted. The trial Court has committed an error of law in allowing the application for joining the respondent no.2 as the defendant in the suit. 7] The decision of the Apex Court relied upon by Shri Kulkarni, the learned counsel for respondent no.2 deals with the question of necessary party and it states that what makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would 11 only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The principles laid down in this judgment cannot be disputed. However, respondent no.2 has failed to make out such a case that he being a necessary party in the property. Respondent no.2 is not a party to the contract dated 25/5/1992 and it is not necessary to join him as a party to the suit to effectively and completely settle the issue of specific performance of contract which essentially arises between the plaintiff and the defendant. The said judgment is of no avail to the respondent no.2. 8] In the result, the Writ Petition succeeds. The order dated 5/12/2008 passed by learned III Joint Civil Judge, Senior Division, Ahmednagar below Exh.183 is hereby quashed and set aside. Application Exh.183 filed by the respondent no.2 herein is dismissed. Rule is made absolute in these terms. No order as to costs. [R. K. DESHPANDE, J.]