Full Judgment Text
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PETITIONER:
VIJAY PRATAP & ORS.
Vs.
RESPONDENT:
SAMBHU SARAN SINHA & ORS.
DATE OF JUDGMENT: 30/07/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
JT 1996 (7) 226 1996 SCALE (5)805
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
This petition is against an order dismissing the
application under Order 1, Rule 10, CPC filed by the
petitioners to come on record in place of their father. The
suit was laid for specific performance wherein the father
during his life time is alleged to have entered into
compromise and requested to delete his name from the
arraignment of the parties as respondent No.1. The deletion
of the first respondent came to be made after his demise.
Pending suit before compromise memo was recorded, the
petitioners sought to come on record under Order 1, Rule 10
being that they were necessary and proper parties. The trial
Court recorded the finding that deletion had taken place and
observed as under:
"At present I am not giving any
finding with respect of Ext-6 and
compromise petition in the light of
an objections raised by petitioners
in their other two petitions.
Simply I have stated the facts
which are available on record. If
these petitioners are made parties
in the suit as prayed then dispute
will arise between petitioners and
plaintiff No.1 with respect of
compromise and Ext-6. Its result
will be that there will be dispute
between the co-plaintiffs with
respect of their right, title and
interest in suit property. This
suit will turn into a regular title
suit. To decide right, title and
interest of co-plaintiffs in suit
property is beyond the scope of
this suit. Suit of Specific
performance of contract Can’t be
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turned into a regular Title Suit.
So, in my opinion these petitioners
are not necessary and proper
parties under Order 1 Rule 10
C.P.C.
The trial Court accordingly held that the petitioners
are neither necessary nor proper parties to the suit. On
revision, the High Court upheld the same. Shri Sanyal, the
learned counsel for the petitioners contended that their
father had not signed the relinquishment deed and the
signatures appended to it were not that of him. The deed of
relinquishment said to have been signed by the father of the
petitioners was not genuine. These questions are matters to
be taken into consideration in the suit before the
relinquishment deed and compromise memo between the other
contesting respondents were acted upon and cannot be done in
the absence of the petitioners. The share of the petitioners
will be effected and, therefore, it would prejudice their
right, title and interest in the property, We cannot go into
these questions at this stage. The trial Court has rightly
pointed that the petitioners are necessary and proper
parties so long as the alleged relinquishment deed said to
have been signed by the deceased father of the petitioners
is on record. It may not bind petitioners but whether it is
true or valid or binding on them and all questions which in
the present suit cannot be gone into. Under those
circumstances, the courts below were right in holding that
the petitioners are not necessary and proper parties but the
remedy is elsewhere. If the petitioners have got any remedy
it is open to them to avail of the same according to law.
The special leave petition is dismissed.