Law: Civil Procedure Code (V of 1908)

Section: 9

(a) Civil Procedure Code (V of 1908)---O. I, Rr. 9 & 10---Mis joinder and non joinder of parties---Not fatal---Court could add parties either suo motu or on application or oral request---Principles. The provisions of Rule 10 of Order I, C.P.C., would show that the same are liberal and the court is empowered to substitute or add as plaintiff upon such terms as it thinks just at any stage of the suit. Rule 10 of Order I, C.P.C., empowers a court to remedy such defect. Mis-joinder by itself is not fatal nor is non-joinder per se fatal. Parties can be added by the court either on application, oral request or suo motu. (b) Specific Relief Act (I of 1877)---Ss. 42, 12 & 64---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for declaration, permanent injunction and specific performance of Memorandum of Understanding---Transfer of property by plaintiff in compliance of terms of Memo of Understanding in favour of defendant-Bank with condition that Bank would roll over and restructure plaintiffs liability, which Bank failed to perform---Application for temporary injunction to restrain Bank from creating third party interest in such property---Validity---Such Memo of Understanding contained certain reciprocal and/or collateral acts to be performed on either side--- Conditional transfer of property by plaintiff in favour of Bank was one of such acts to be reciprocated by Bank by rolling over and restricting of plaintiffs liabilities to enable him to do business, make profits and re-purchase such property within specified period---Bank had failed to perform its part of contract as agreed upon in terms of Memo of Understanding---Such Memo of Understanding was still subsisting and valid document and not superseded by subsequent agreement and sale-deeds, thus, same was capable of specific performance---No commercial enterprise would enter into an agreement (Memo of Understanding in the present case) without any consideration---Such transaction constituted mortgage with conditional sale---Interest of plaintiff in such property was to be safeguarded till decision of case---Bank had Net to comply with terms of the Memo of Understanding---High Court…

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