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Fateh Chand Khanna Vs. Shankar Khushi Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 564-D of 1959
Judge
Reported inAIR1963P& H401
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 - Order 1, Rule 10 - Order 9, Rule 9
AppellantFateh Chand Khanna
RespondentShankar Khushi Ram and ors.
Appellant Advocate R.S. Narula, Adv.
Respondent Advocate P.S. Safeer, Adv.
DispositionRevision dismissed
Cases ReferredGita Ram v. Prithvi Singh
Excerpt:
.....interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a..........of mr. narula, counsel for the petitioner fateh chand, is that the pro forma defendants in ram kishan's suit, namely, shankar and piare lal be treated as plaintiffs. he is forced to this argument because in order to succeed on the preliminary objection it must beheld that the plaintiffs in the second suit were also the plaintiffs in the first suit and he contended that as they were defendants in the first suit, therefore they should be regarded as plaintiffs because their interests were identical with those of the plaintiff in the first suit. i am, however, unable to agree with this contention, because if his contention is allowed to prevail, then order 1 rule 10 of the code of civil procedure will become wholly redundant. a proforma defendant so called remains a defendant for all.....
Judgment:
ORDER

D.K. Mahajan, J.

1. This is a petition for revision by Fateh Chand against the order of the Subordinate Judge 1st Class deciding one of the preliminary Issues. The preliminary issue was: Is the suit barred under Order IX, Rule 9 of the Code of Civil Procedure on account of the dismissal in default of previous suit stated in the written statement under Order IX, Rule 9 of the Code of Civil Procedure?

2. The facts are as follows: Fateh Chand mortgaged the suit property in favour of Ram Kishan, Shankar and Piare Lal to secure an advance of Rs. 20,000/-. On the 23rd December, 1949, Ham Kishan, one out of the three mortgagees, filed a suit for recovery of his one-third share of the mortgage-debt. An objection was raised that a co-mortgagee could not sue for his share of the mortgage money and in view of this objection an application was made for amendment of the plaint and that application was allowed with the result that the suit was for recovery of the entire amount of the mortgage-debt by Rani Kishan. To this suit the other co-mortgagees were made defendants. This suit was dismissed on the 25th July, 1952, under Order 9, Rule 9 of the Code, for default of appearance by Ram Kishan.

On the 15th of October, 1958, the presentsuit was filed by the other two mortgagees,Shankar and Piare Lal, for recovery of the mortgage money and the defence of Fateh Chand forwhich issue No. 1 was framed was that the dismissal of suit under Order 9, Rule 9 of the Code,bars the present suit. This contention has beennegatived by the Courts below and hence the present revision.

3. The contention of Mr. Narula, Counsel for the petitioner Fateh Chand, is that the pro forma defendants in Ram Kishan's suit, namely, Shankar and Piare Lal be treated as plaintiffs. He is forced to this argument because in order to succeed on the preliminary objection it must beheld that the plaintiffs in the second suit were also the plaintiffs in the first suit and he contended that as they were defendants in the first suit, therefore they should be regarded as plaintiffs because their interests were identical with those of the plaintiff in the first suit. I am, however, unable to agree with this contention, because if his contention is allowed to prevail, then Order 1 Rule 10 of the Code of Civil Procedure will become wholly redundant. A proforma defendant so called remains a defendant for all purposes and if it were not so the Legislature would not have provided that he can apply to be transposed as a plaintiff. Moreover, he can either remain neutral or support the plaintiff or the contesting defendant. The mere fact that his interests are identical with those of the plaintiff will be of no consequence.

4. According to Mr. Narula the test is whether a defendant is seeking the same relief which the plaintiff is seeking. Even if this test is accepted it is of no use to the learned counsel for in this case we do not know what stand the present plaintiffs who were then the defendants would have taken. They were not even served and therefore in the situation to relegate them to the position of the plaintiffs would be preposterous.

5. Plaintiff according to all accepted notions is a person who comes to Court to seek some redress against some person and is not a person who is dragged to Court to defend the action or is merely added as a defendant to give effective redress to the plaintiff. The mere fact that the ultimate decision on the merits will bind the proforma defendant as well will be of no consequence in determining his status as a plaintiff or a defendant. In a Full Bench decision of this Court where the question of res judicata arose vis-a-vis such a pro forma defendant it was held that there is no such person as a proforma defendant. See in this connection Gita Ram v. Prithvi Singh, 1956-58 Pun LR 200 : ((S) AIR 1956 Punj 129) (FB). -

6. The result, therefore, is that there is no force in this petition. The same fails and is dismissed with costs.


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