LexMORESHAR S/O YADAORAO MAHAJAN versus VYANKATESH SITARAM BHEDI (D) THR. LRS. AND OTHERS
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A B C D E F G H 259 MORESHAR S/O YADAORAO MAHAJAN v. VYANKATESH SITARAM BHEDI (D) THR. LRS. AND OTHERS (Civil Appeal Nos. 5755-5756 of 2011) SEPTEMBER 27, 2022 [B. R. GAVAI AND C. T. RAVIKUMAR, JJ.] Suit – Necessary party – Non-joinder of – Suit, if maintainable – Plaintiff filed suit for specific performance admitting that the suit property was jointly owned by defendant, his wife and three sons – However, trial court held that the defendant was the absolute owner of the suit property and thus, there was no question of joinder of his wife and three sons – Suit decreed, defendant was directed to execute the sale deed by accepting the balance sale consideration as per the terms of the agreement to sell – Appeal filed by defendant, dismissed – Second appeal – Partly allowed by High Court, specific performance denied – On appeal, held : In view of the plaintiff’s own admission that the suit property was jointly owned by the defendant, his wife and three sons, no effective decree could have been passed in their absence – In spite of the defendant taking an objection in that regard, the plaintiff chose not to implead the defendant’s wife and three sons as party defendants – A “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court – If a “necessary party” is not impleaded, the suit itself is liable to be dismissed – No error in the judgment of High Court – In any case, to balance the equities, High Court partly decreed the suit and directed the defendant to refund Rs.30,000/- with interest, this direction is affirmed. Suit – Necessary party – Twin test for – Held: For being a necessary party, the twin test has to be satisfied, (i) there must be a right to some relief against such party in respect of the controversies involved in the proceedings, (ii) no effective decree can be passed in the absence of such a party. Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and Others (2010) 7 SCC 417 : [2010] 7 SCR 790 – relied on. [2022] 7 S.C.R. 259 259 A B C D E F G H 260 SUPREME COURT REPORTS [2022] 7 S.C.R. Kasturi v. Iyyamperumal and Others (2005) 6 SCC 733 : [2005] 3 SCR 864; Poonam v. State of Uttar Pradesh and Others (2016) 2 SCC 779 : [2015] 14 SCR 565 – referred to. Case Law Reference [2005] 3 SCR 864 referred to Para 8 [2010] 7 SCR 790 relied on Para 10 [2015] 14 SCR 565 referred to Para 10 CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5755- 5756 of 2011. From the Judgment and Order dated 03.07.2008 of the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Second Appeal No. 264 of 1996 and Order dated 26.03.2009 in Misc. Civil Application (Review Application) No. 336 of 2009 in Second Appeal No. 264 of 1996. Rahul Chitnis, Ms. Shwetal Shepal, Chander Shekhar Ashri, Advs. for the Appellant. Harin P. Raval, Sr. Adv., Satyajit A. Desai, Amit Kr. Pathak, Satya Kam Sharma, Raghav S. Desai, Advs. for the Respondents. The Judgment of the Court was delivered by B. R. GAVAI, J. 1. These appeals challenge the judgment dated 3rd July 2008 passed by the learned Single Judge of the High Court of Judicature at Bombay in Second Appeal No. 264 of 1996, thereby allowing the appeal filed by the respondents challenging the judgment dated 13th June 1996 passed by the 2nd Additional District Judge, Yavatmal (hereinafter referred to as the “Appellate Court”) in Regular Civil Appeal No. 61 of 1990 vide which the Appellate Court confirmed the judgment dated 28th March 1990 passed by the Civil Judge (Senior Division), Yavatmal (hereinafter referred to as the “trial court”) in Special Civil Suit No. 21 of 1985 filed by the appellant vide which the trial court had decreed the suit for specific performance filed by the present appellant. 2. The parties hereto are referred to in accordance with their status as before the trial court. A B C D E F G H 261 3. The plaintiff is a doctor who was working in a Government Hospital. The plaintiff was also in private practice. The plaintiff, for starting his private practice, took on rent a part of the house of the defendant. It is the case of the plaintiff that subsequently, the defendant was in financial need for his agricultural cultivation and household expenses and therefore, he suggested to the plaintiff that he should purchase the said part of the house which the plaintiff was occupying, together with an added portion. The plaintiff accepted the sa
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