VIJAY PRATAP AND ORSversusSAMBHU SARAN SINHA AND ORS.

                         VIJAY PRATAP AND ORS                                          A
                                   v.
                                            '
                      SAMBHU SARAN SINHA AND ORS.

                                    JULY 30, 1996

                [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]                                 B

           Code of Civil Procedure, 1908 :

           Order 1, Rule ]{}-Parties to suit-Suit for specific perfor-
     nzanc~Petitioner's father     alleged to have entered into con1pron1ise and
     requested for deletion of his name from the an·aignment of parties in the
                                                                                       c
     suit-Order of deletion made after his death pending suit before compromise
     memo was recorded-Application by petitioners seeking to come on record as
     necesswy p01ties-T1ial court rejected application-High Cowt upheld the
     order-It was contended before this Court that the deed of relinquishment
     alleged to have been signed by petitione!!' father was not genuine-Held,          D
     courts below were right in holding that petitioners were not necessary and
     proper pwties to the suit for specific pe1fom1a11ce-lf petitioners have got any
     remedy it is open to them to avail the same according to law.

          CIVIL APPELLATE JURISDICTION: Special Leave Petition (C)
     No. 13593 of 1996.                                                                E
           From the Judgment and Order dated 22.2.96 of the Patna High Court
     in C.R. No. 2054 of 1993.

           S.B. Sanyal, R.P. Wadhwani and Rudreshwar for the Petitioners.
                                                                                       F
           The following Order of the Court was delivered :

            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        G
,.   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              H
                                           173
    174                   SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R.

A   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
B           parties in the suit as prayed then dispute \viii 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
c           scope of this suit. Suit of Specific performance of contract can't
            be turned into a regular Title Suit. So in my opinion these
            petitioners are not necessary and proper parties under Order 1
            Rufo 10 C.P.C.

D         The trial Court accordingly held that the pe!ttioners 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 relinquish-
    ment said to have been signed by the father of the petitioners was not
E   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
F   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 all questions which in the
    present suit cannot be gone into. Under those Circumstances, the courts
G   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 its open to them to avail of the same according to law.

           The special leave petition is dismissed.

    R.P.                                                        Petition dismissed.