ANIL KUMAR SINGH versus SHIVNA TH MISHRA @ GADASU GURU

Citation: [1994] SUPP. 5 S.C.R. 135 · Decided: 24-10-1994 · Supreme Court of India · Bench: K. RAMASWAMY · Disposal: Dismissed

Judgment (excerpt)

ANIL KUMAR SINGH 
v. 
SHIVNA TH MISHRA @ GADASU GURU 
OCTOBER 24, 1994 
[K. RAMASWAMY AND N. VENKATACHALA, JJ.J 
A 
B 
Civil Procedure Code, 1908-0rder /, Rule IO (2), Order 6, Rule 17 
and Order 22, Rule 10-lmpleading party as defendant-Suit for specific 
performance-Subsequent interest acquired by a person as co-owner by 
decree of Court-He being not a party to agreement of sale-Whether the 
person is necessary and proper party-Held, No-Order 22 Rule JO and C 
Order I Rule 3 not applicable. 
Farther of the petitioner filed civil suit for specific performance of 
a contract of sale. Pending decision in the suit, vendee died. The 
petitioner came on record as legal representative and filed an 
application under Order 6 Rule 17 CPC seeking leave to amend the D 
plaint by impleading respondent also as a party defendant in the suit. It 
is alleged that the vendor had colluded with his sons and wife and had 
obtained a collusive decree in suit u/s 229-B 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, E 
therefore, the respondent is a necessary and proper party. The petition 
was dismissed and revision filed against the judgment was also 
dismissed. 
This special leave petition has been filed against the judgment of 
the High Court. 
F 
The petitioner stated 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 favour of the petitioner, the respondent was a necessary and 
proper party. He sought to place reliance on Order 1 Rule 3, Order 1 G 
Rule 10 (2) and Order 22 Rule 10, Civil Procedure Code. 
Dismissing the petition, this Court 
HELD 1.1. Order 22, Rule 10 Civil Procedure Code, postulates of 
continuation of suit by or against a person who has, by devolution, H 
135 
136 
SUPREME COURT REPORTS 
[1994] SUPP. 5 S.C.R. 
A 
assignment or creation, acquired any interest during the pendancy of a 
suit, by leave of the Court. The obtaining of a decree and acquiring the 
status as a co;.owner during the pendancy of a suit for specific 
performance is not obtaining, by assignment or creation or by 
devolution, an interest. Therefore, Order 22 Rule 10 has no application 
to this case. (138-B) 
B 
c 
D 
E 
F 
G 
H 
1.2. Order 1, Rule 3 Civil Procedure Code is not applicable to the 
suit for specific performance because admittedly, the respondent was 
not a party to the contract. (138-C) 
1.3. In this case, since the suit is based on agreement of sale said to 
have been executed by the sole defendant in the suit, the subsequent 
interest said to have been acquired by the respondent by virtue of a 
decree of the Court is not a matter arising out of or in respect of the 
same act or transaction or series of acts or transactions in relation to 
the claim made in the suit. (138-F) 
1.4. By Operation of Order 1 Rule 10 (2) though the Court may 
have power to strike out the name of a party improperly joined or add 
a party either on application or without application of either party, but 
the condition precedent is that the Court must be satisfied that the 
presence of the party to be added, would be necessary in order to 
enable the Court effectually and completely to adjudicate upon and 
settle all.questions involved in the suit. 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. (139-B-C) 
1.5. The question is whether the person who has got his interest in 
the property declared by an independent decree but not a party to the 
agreement of sale, is a necessary and proper party to effectually and 
completely adjudicate upon and settle all the questions involved in the 
suit. The question before the Court in suit for the specific performance 
is whether the vendor had executed the document and whether the 
conditions prescribed in the provisions of the Specific Relief Act have 
been complied with for granting the relief of specific performance. 
Since the respondent is not a party to the agreement of sale, it cannot 
be said that without her presence the dispute as to specific performance 
cannot be determined. (139-D-E, F) 
1.6. A person may be added as a party defendant in the suit though 
no relief may. be claimed against him/her provided his/her presence is 
necessary for a complete and final d

Excerpt shown. Read the full judgment & AI analysis in Lexace.