SHARMA, J. - (1.) CHALLENGE in this appeal is to the judgment dated September 1, 2006 of learned Single Judge whereby the writ petition of first respondent was allowed and he was ordered to be impleaded as party under Order 1 Rule 10 Civil Procedure Code in a suit for specific performance instituted by the plaintiff appellant.
(2.) CONTEXTUAL facts depict that the appellant (for short 'plaintiff') filed a civil suit for specific performance against the second and third respondents (for short `defendants') on the basis of an oral agreement to sell allegedly entered upon on January 10, 2004 in regard to land bearing khasa No. 24 at the rate of 1. 75 lac per bigha. It was pleaded that despite payment of sum of Rs. 21,000/- the defendants declined to execute sale deed. During the pendency of the suit first respondent (for short `applicant') moved an application under Order 1 Rule 10 CPC stating therein that applicant was the bonafide purchaser of half of the land in question and agreement to sell was already executed on February 9, 2003 and he paid entire sale consideration i. e. sum of Rs. 24,94,000/- to the defendants and actual possession of the land was handed over to the applicant and sale deed of about 9 bighas land had been executed. The defendants filed written statement and denied the execution of oral agreement. The application seeking impleadment was dismissed by the trial Court vide order dated February 18, 2006. The writ petition preferred against the said order was allowed by learned Single Judge as indicated above. Hence this special appeal. We have given our anxious consideration to the submissions advanced before us and weighted the material on record. At this juncture a look at Order 1 Rule 10 Civil Procedure Code appears necessary which provides thus:- ``order 1 Rule 10. Suit in name of wrong plaintiff:- (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 right plaintiff, the Court may at any stage of the 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. Court may strike or add parties. (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 improperly joined, whether as plaintiff or defendant, be struck out, and 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 completely to adjudicate upon and settle all the questions involved in the suit, be added. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. Where defendant added, plaint to be amended. (4) Where a defendant is added, the plaintiff 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. '' It is well settled that the question of impleadment of a party is to be decided on the touchstone of Order 1 Rule 10 which provides that only a necessary or a proper party may be added. Mere interest of a party in the fruits of litigation cannot be a true test for his being impleaded as a party. The object of the rule is not to change the scope or character of the suit by adding new parties and to enable them to litigate their own independent claims but simply to hold them to avoid unnecessary litigation which might otherwise become necessary. The object of order Order 1 Rule 10 CPC was explained by the Supreme Court in Amit Kumar Shaw vs. Farida Khatoon (2005) 11 SCC 403, thus:- "the object of Order 1 Rule 10 is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non-suited. The power to strike out or add parties can be exercised by the court at any stage of the proceedings. Under this rule, a person may be added as a party to a suit in the following two cases: (1) When he ought to have been jointed as plaintiff or defendant, and is not joined so, or (2) When, without his presence, the question in the suit cannot be completely decided."'
(3.) IN their Lordships of the Supreme Court observed thus:- "from a plain reading of the expression "all the questions involved in the suit" used in Order 1 Rule10 (2) CPC it is abundantly clear that the legislature clearly meant that only the controversies raised as between the parties to the litigation must be gone into, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiffs or the defendants inter se or questions between the parties to the suit and a third party." It was further held that ``there must be a right to some relief against such party in respect of controversies involved in the proceedings, or (2) no effective decree can be passed in his absence." In Hardeva vs. Ismail (AIR 1970 Raj. 167) Full Bench of this Court held that the presence of the person added must be necessary to effectually and completely adjudicate upon and settle all points involved in the suit. Coming to the facts of the instant case we noticed that on the basis of the written statement of defendants issue No. 4 was framed as under:- ;