JUDGMENT
Sanjib Banerjee, J.
1. The Applicant seeks to clamber on board on her apprehension that the present defendants have lost interest and will present a cakewalk for the plaintiffs to undeservingly establish title over the subject film. The plaintiffs resist the applicant’s attempt to be impleaded on divers counts, the foremost of them being that there is no right that the applicant can assert over the film.
2. The heirs of danseur Uday Shankar question, in the suit, a gift of the film made by the maestro by a registered document. On an interlocutory application an order was made on September 26, 2000 restraining the defendants from creating any third party right over the said film without leave of Court. Such order is subsisting.
3. The applicant asserts that she entered into an agreement with the first defendant on February 2, 2002 by which the first defendant agreed to transfer or assign her rights in respect of the said film for valuable consideration in favour of the applicant. Two clauses of the agreement are of some relevance. The second clause provides that the first defendant would have no right over the film from the date of the agreement. The third clause notices the present suit and provides that the agreement would come into force after the final adjudication of this suit.
4. The applicant says that upon the first defendant having received the consideration, she has little interest in the film and it would not be worth her while to stay back and contest the plaintiffs’ claim. The applicant justifies her attempt to come on board on the ground that if the issue that has arisen in the suit is answered in favour of plaintiffs by default, she would be seriously prejudiced.
5. The plaintiffs urge that, for a start, the applicant has to demonstrate a right. Secondly, according to the plaintiffs, the applicant has to show a live interest in the subject matter of the suit. Thirdly, the plaintiffs argue, a non-party seeking to be added as a defendant needs to establish that her presence is necessary in order to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the suit.
6. According to the plaintiffs, the applicant falters at the first hurdle. The plaintiffs emphasise that the Court would be loath to recognize a right sought to be created in derogation of a subsisting order. They claim that the order of September 26, 2000 unequivocally restrained the defendants from creating any right in favour of any other person in respect of the said film. They rely on the principle that any act done in breach of an order of injunction is void and claim that the applicant has no right to pursue in respect of the said film, far less a right to a toehold to question the plaintiffs’ assertions in the suit. The plaintiffs rely on a Judgment reported at (Delhi Development Authority v. Skipper Construction Co. (P) Ltd. and Anr.) for the principle that a contemnor should not be allowed to obtain the benefit of an act done in breach of a subsisting order. This Judgment may be inapposite in the context of the order that was passed on July 30, 2004 in the plaintiffs’ petition for contempt. C.C. 83 of 2004 launched by the plaintiffs was disposed of by recording an undertaking by the first defendant that she had not acted in derogation of the subsisting order and her submission she had not taken any steps in pursuance of the agreement of February 2, 2002 and would not do so till the matter was decided.
7. The Judgment next pressed into service by the plaintiffs is one reported at (Krishna Kumar Khemka v. Grindlays Bank P.L.C. and Ors.). In such case, there was an injunction restraining the defendants from selling or transferring any of the suit properties. A receiver was appointed who purported to create a tenancy in respect of the some of the suit properties. It was held that such tenancy was in violation of and contrary to the injunction and was subject to directions and orders of the Court appointing the receiver. The person inducted by the receiver was found not to have any right as the creation of the tenancy was in violation of the order of injunction.
8. As to the rights of the non-parties to be impleaded in a suit, the plaintiffs have relied on the Judgments reported at (New Red Bank Tea Co. Pvt. Ltd. v. Kumkum Mittal and Ors.) and (Kasturi v. Iyyamperumal and Ors.). Paragraph 11 of the New Red Bank Tea Company case has been placed for the principle that a party not directly interested in the issues in the suit but claiming to be indirectly or commercially affected by the adjudication thereof, may not be brought on record even as a proper party:
11. In the leading English case of Moser v. Marsded, Lindly L.J. has held that a party who is not directly interested in the issues between the plaintiff and the defendant but is only indirectly or commercially affected cannot be added as a defendant because the Court has no jurisdiction under the relevant rule to bring him on record even as a proper party. The position is no different under the Indian law. As laid down by this Court, “in a suit relating to property in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest in the subject-matter of the litigation”, (see: Razia Begum v. Sahebzadi Anwar Begum). In Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay this Court has held: (SCC p.531, para 14).
It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect…. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action.
9. The Kasturi Judgment was rendered in a suit for specific performance where it was held that inter se rights between the defendants cannot be sought to be made the subject-matter of a suit by adding a non-party as a co-defendant. Paragraph 16 and 17 of the Judgment are apposite in the context:
16. That apart, from a plain reading of the expression used in Sub-rule (2) Order 1 Rule 10 CPC ‘all the questions involved in the suit’ it is abundantly clear that the legislature clearly meant that the controversies raised as between the parties to the litigation must be gone into only, 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 plaintiff-appellant and the defendants inter se or questions between the parties to the suit and a third party. In our view, therefore, the Court cannot allow adjudication of collateral matters so as to convert a suit for specific performance of contract for sale into a complicated suit for title between the plaintiff-appellant on one hand and Respondents 2 and 3 and Respondents 1 and 4 to 11 on the other. This addition, if allowed, would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit would have to be gone into. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of Respondents 1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made hereinearlier. Respondents 1 and 4 to 11 would not, at all, be necessary to be added in the instant suit for specific performance of the contract for sale.
17. It is difficult to conceive that while deciding the question as to who is in possession of the contracted property, it would be open to the Court to decide the question of possession of a third party or a stranger as first the lis to be decided is the enforceability of the contract entered into between the appellant and Respondent 3 and whether contract was executed by the appellant and Respondents 2 and 3 for sale of the contracted property, whether the plaintiffs were ready and willing to perform their part of the contract and whether the appellant is entitled to a decree for specific performance of a contract for sale against Respondents 2 and 3. Secondly in that case, whoever asserts his independent possession of the contracted property has to be added in the suit, then this process may continue without a final decision of the suit. Apart from that, the intervener must be directly and legally interested in the answers to the controversies involved in the suit for specific performance of the contract for sale. In Amon v. Raphael Tuck and Sons Ltd. it has been held that a person is legally interested in the answers to the controversies only if he can satisfy the Court that it may lead to a result that will affect him legally.
10. The applicant suggests that the question as to whether the applicant has any right need only be answered at the trial after the applicant is added as a party. According to the applicant, she entered into an agreement which, by its very wording, suspended her rights in respect of the film till the adjudication of the suit, but that would not preclude her from asserting the right of the person from whom she obtained the suspended assignment. She says that upon the first defendant having received payment, the first defendant was understandably disinterested in the matter and it is plain to see that a right conferred on the first defendant or her predecessor-in-interest by a registered document is likely to be set at naught by the defendants’ inaction. The applicant exhorts that her being denied a right to contest the plaintiffs claim would lead to multiplicity of proceedings that Courts generally seek to avoid.
11. The applicant relies on a Division Bench Judgment of this Court reported at AIR 1985 Calcutta 172 (Benimadhab Mahrotra v. Howrah Flour Mills Ltd. and Anr.) and urges that where the Court finds that the defendant may not contest the plaintiffs claim seriously and such action was likely to prejudice a third party, the Court would accept the third party’s plea to be impleaded. The Division Bench allowed a sub-lessee to be impleaded when it was found that the plaintiff and the defendant were sisters concerns and it was likely that there would be no contest at the trial. It was held that even though a decree against a lessee is otherwise binding upon a sub-lessee, except where the sub-lessee has an independent right, such a decree must not be a collusive one.
12. The applicant here bases her rights on an agreement that has been executed but the rights whereunder are yet unborn. The third clause of the agreement postpones the applicant’s right to assert under the agreement till such time that the present suit remains pending. Even without the third clause in the agreement of February 2, 2002 that the applicant sets up, no right in respect of the subject film could have been created by the defendants in favour of the applicant by reason of the order of September 26, 2000. As a consequence of the order, the first defendant had no right to confer for the applicant to receive any. To accept the applicant’s plea would amount to a prima facie recognition of her right that is non-existent. If the applicant had brought an arguable case as to her right, the other aspects of the matter need then have been gone into. But the applicant here comes with no right in respect of the film which is the subject matter of the suit.
13. The applicant fails at the threshold and deserves no look-in in the present proceedings. The application is rejected. The applicant is left to work out her remedies elsewhere. There will no order as to costs.
14. Urgent photostat certified copies of the order be made available to such all the parties in this application that applied for, if subject to compliance of requisite formalities.