P L D 1955 Lahore 644 (PLP)

KAIKAUS, J.--‑This ‑is an application in revision against the order of Mr. Muhammad Ilyas, Civil Judge, Lahore, directing that the plaint be amended and names of defendants Nos. 2 and 3 be deleted. The facts, as they appear from the plaint, are that Mst. Jamila Begum defendant No. 1 entered into an agreement with Muhammad Ishaq plaintiff for the sale of a house which has some shops on the ground floor, on the third of December, 1952 for a sum of Rs. 4,500 of which Rs. 2,000 were paid to her. After that on the 14h of January, 1953, defendant No. 1 received a further sum' of Rs. 1,

200. Defendant No. 1 was called upon to execute the sale deed. She avoided executing a deed and instead, her brother defendant No. 2 with her collusion executed a sale deed in favour of defendant No. 3. a This deed was signed by defendant No. 1 as a witness. The plaintiff stated further in the plaint that possession of the shops ‑under the house had been given to him at the time of the agreement. He prayed for a decree for specific perfor mance against defendant No. 1 directing her to execute the deed and also to hand over possession of the upper portion of the house. The defendant objected that the defendants Nos. 2 and 3 had been improperly joined: The trial Court framed and issue as to whether the suit was bad for misjoinder of parties and reaching a conclusion that it was bad for misjoinder directed the plaintiff to amend the plaint so as to exclude these defendants. Two grounds are urged before me by learned counsel for the petitioner as justification for impleading defendants Nos. 2 and

3. They are : (1) that unless and until defendants Nos. 2 and 3 are impleaded the question of title of the defendant No. 1 cannot be effectively adjudicated upon, and (2) that the possession of the upper potion of the house is now with defendants Nos. 2 and 3 and the plaintiff will not be able to get the possession unless he impleads them. I am of the opinion that there is force in the first conten tion. There is no doubt that generally in suits for specific performance only the parties to the contract or those against whom the contract can to any extent be enforced should be impleaded as defendants. That is the ordinary rule but it is a subject to exceptions and does not debar the impleading of a person claiming an interest adversely to the vendor and the vendee when the circumstances of a case so require. If in the present case there be no adjudication with respect to the ownership of the property in dispute as between defendant No. 1 and defendant No. 2, the plaintiff, though he gets a decree in the present suit, may be deprived of it in litigation with defendants Nos. 2 and 3 and thus may be forced to file another suit for compensation against defendant No.

1. It may be said that defendant Nos. 2 and 3 are not necessary parties to the suit for the definition of necessary party is that without his being impleaded no effective decree can be passed in the suit at all. It is not necessary for me to decide that question. There can be no doubt, however, that unless and until defend ants Nos. 2 and 3 are joined in the suit, the matters in dispute between the parties to this litigation cannot be effectively and completely adjudicated upon. To exclude defendants No. 2 and 3 from this suit may result in causing loss to the plaintiff and may also lead to multiplicity of suits. That is how one would look at the matter from the point of view of justice for the object of all procedure is to do justice between the parties. I have, however, in this connec tion to consider whether the relevant provisions of the Code of Civil Procedure allow defendants Nos. 2 and 3 to be impleaded. These provisions are Order I, rules 3 and 10 of the Code of Civil Procedure which runs :‑ "Order 1, rule 3.‑All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alterna tive, where, if separate suits were brought against such per sons, any common question of law or fact would arise." "Order I, rule 10.‑(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) The Court may at any stage of the proceedings, 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 com pletely to adjudicate upon and settle all the questions involved in the suit, be added. (3) No person shall be added as plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (4) Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary and amended copies of the summons, and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5) Subject to the provisions of the Indian Limitation Act, 1877, section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons. That the impleading of the defendants Nos. 2 and 3 will lie covered by that part of rule 10 which empowers the Court to implead a person whose presence is necessary for an effective adjudication of the question involved in the suit, can hardly be open to doubt. The question whether defendant No. 1 is in fact the owner of the property in dispute is one of importance in this case, for on its decision depends the relief which should be granted to the plaintiff and without its decision the relief of specific performance may turn out to be valueless, forcing the plaintiff to a second suit. Learned counsel for the respondent contends that Order I rule 10 cannot go beyond Order I rule 3 so as to enable a person to be joined as party who could not originally have been impleaded. I will, therefore, without deciding for the present whether Order I rule 10 goes beyond Order I rule 3 determine whether the present case is within rule

3. Can we say in the words of rule 3 that there is a 'right to relief against all the defendants ? The case before me is of a class of cases very well known to Civil Courts, where a relief is prayed for against one party but in order to ensure that the relief is effective it is necessary to bind another person. In such cases can it not be contended with reason that a right to relief exists even against the person who is sought to be bound down for the binding down of a person is a relief essential to the effectiveness of the main relief that is prayed for ? It should be remembered that in every suit the plaintiff who comes to Court does so with the object of secur ing a relief and he does not stand in need of impleading any person whose presence is not necessary for the grant of a full and effective relief to him. But full and effective relief requires that it should not be open to attack or liable to be rendered futile by another person. The object of impleading a person who is to be bound down is only to secure full and effective relief. So it can very well be said that the plaintiff has a right to relief not only against the person against whom a relief is directly prayed for but even against the person whose presence will make the relief complete. I am aware of certain decisions under Order I rule 10 saying that it is not necessary that any relief should be prayed for against the person who is impleaded for the purpose of an effective adju dication, but what I am saying is not really in conflict with those judgments. It is just a question of the definition of relief. I regard even the binding of a person with a decision ~E as a relief. It does amount to a declaration against him and it does add to the effectiveness of the relief that is granted. The view I take of 'relief' has the merit of bringing in line rules 3 and

10. If the binding of a person under such circumstances be not regarded as relief, the result would be that the Court would be adding persons against whom no relief is asked for and who under Order I rule 3 could not originally have been joined as defendants. Can it also be said that the right to relief, in the words of rule 3, arises out of the same act or transaction or series of acts or transactions ? According to the view that I have taken the right to relief really arises by the act of the principal defendant and it arises not only with respect to him but with respect to the other persons whose presence is necessary to afford full relief. In any case it can also be said that the acts on account of which the plaintiff gets his right to relief against defendants Nos. 2 and 3 in this case are a series of acts. The acts alleged in the plaint, i. e., representation by the defendant No. 1 that she is the owner of property, her agreement for sale and the act of defendant No. 2 in making a sale in favour of defendant No. 3 are all series of acts or transactions, because they combine together to give the plaintiff a right of suit. Acts or transactions become series when they assist each other to produce a particular legal result. I would hold, therefore, that the impleading of defendants Nos. 2 and 3 is covered by Order I rule

3. In the view that I take, namely, that a person who claims adversely to the vendor and vendee can be impleaded in a suit for specific performance, I am supported by a number of authorities. In Shivashankareppa Mahadevappa Parakanhatti v. Shivappa Parappa Kupati and others (A I R 1943 Bom. 27) Wassoodew, J. held that the impleading of such a person in a suit for performance was permissible though the ordinary rule was otherwise. In A. V. K. Mayappa Chettiar v. N. K. L. Kolandaivelu Chettiar and another (A I R 1926 Mad. 597) a mortgagee whose claim the vendor did not admit was impleaded as a defendant. In Ram Krishna Sardar v. Sree Kanta Mondal and others (A I R 1929 Cal. 667), similarly a son who claimed an independent interest apart from his father in pro perty was also joined in a suit for specific performance of an agreement of sale by the father. In Fry on Specific Performance (tth Edition) it is stated at page 78 that although the ordinary rule is that persons claiming an independent interest were not to be joined as parties to suits for specific performance such persons are impleaded in some cases. I would hold, therefore, that the impleading of defendants Nos. 2 and 3 in order to bind them is quite proper. I may observe here that the plaint is not very happily worded. It does not clarify that the title of defendant No. 1 should be gone into and if it is found to be non‑existent or defective, the plaintiff should instead of being granted a decree for specific performance be granted a decree for damages. Learned counsel for the petitioner has made an oral request before me that I should allow him to amend the plaint in order to make this clear and I allow him to do so. While I accept the first contention, I do not agree with the second contention urged on behalf of the petitioner. Defendants Nos. 2 and 3 cannot be impleaded on the ground that they are in possession of part of the property in dispute. According to the plaintiff they are trespassers. It is to be remembered that so far as possession of trespassers is con cerned, the plaintiff in such cases has at the date of the suit no cause of action whatsoever. He is not the owner of the property as yet. It is only after a deed of sale is executed in his favour that he acquires title and gets a right to posses sion. There is as yet no infringement of any right of the plaintiff by the person in possession. It is wholly foreign to a suit for specific performance to include in it all prayer for possession against a third person. Even as against the vendor himself the right to take possession in so far as it is based on title would, strictly speaking, arise only after the deed is executed. But so far as the vendor is concerned, there is another aspect of the matter. Ordinarily the vendor when he enters into an agreement for sale agrees also, whether expressly or by implication, to deliver possession of the property to the would‑be‑vendee. In a suit for performance therefore, a decree can properly be passed directing the vendor to deliver possession. But the basis of this decree is an agreement and not a title in the vendee. So far as strangers are concerned, the only basis of the suit for possession against them could be title and that title is up to the date of the suit wanting. The result then is that this suit is not bad for misjoinder for in the plaint the plaintiff has asked for possession only from defendant No. 1 and the other defendants are impleaded only so that they may be bound by the decree. I have allowed the plaintiff to amend the plaint. I may make it clear that the plaintiff would not be entitled to pray for possession as against defendants Nos. 2 and

3. This revision petition is accepted and the order of the Court directing an amendment of the plaint excluding the defendants Nos. 2 and 3 is set aside. The plaintiff is allowed to amend the plaint so as to explain why defendants Nos. 2 and 3 are impleaded and to claim damages in the alternative. The parties will bear their own costs in this Court. A. H. Petition accepted.