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Noormohmad Hajishama Vs. Anand Mohan Bhardwaj and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1981)22GLR332
AppellantNoormohmad Hajishama
RespondentAnand Mohan Bhardwaj and ors.
Cases ReferredAmbalal Maganlal Rawal v. Vaghari Bababhai Shivabhai and Anr.
Excerpt:
.....two survey numbers and was entitled to be put in actual possession thereof. thus, under sub-rule (2) of rule 10 order i, the cour invested with the discretion to add a party as co-defendant at any stags of the trial on such terms and conditions as it may think fit to impose if it is of the opinion that the party ought to have been joined at the initial stage or that the presence of the party before the court is necessary in order to enable the court effectively and completely to adjudicate upon and settle all the questions involved in the suit. 'the law on the subject is well settled; a necessary party is one without whom no order can be made effectively; at best, the only order that can be passed by the court would be to allow the plaintiffs time to decide whether they would like..........he alleged that he was the successor of verumal tekuraal, the original allottee in respect of the suit lands. according to him, the appeal filed by the applicant-plaintiff challenging the proceedings commenced under the administration of evacuee property act, 1950 as well as the displaced persons (compensation and rehabilitation) act, 1954, was dismissed by the authorised chief settlement commissioner on 7th june, 1968 and a sanad was issued in favour of the allottee on 15-2-79. accordingly, he alleged that he had become the owner of the aforesaid two survey numbers and was entitled to be put in actual possession thereof. he, therefore, applied to the court, alleging that he was vitally interested in the outcome of the suit and as the suit was filed mala fide with a view to keeping him.....
Judgment:

A.M. Ahmadi, J.

1. The applicant is the original plaintiff of Civil Suit No. 214 of 1979 filed against the present opponents Nos. 1, 2 & 3 for a declaration that he, the applicant, is the absolute owner of survey Nos. 54/1 and 54/2 of village Mahobatpara, Taluka Vanthaii, District Junagadh. He contends that the said land originally belonged to one Noormobmed Nagori and he mortgaged the land for Rs. 1,000/- on 24th April, 1951 with Patel Trikam Arjan for a period of 10 years. The said Noormohmed Nagori expired in Junagadh on 5th June, 1960. His heirs Sonabai (mother) and Valbai (daughter) thereupon became the tenants-in-common in respect of the said lands. The present applicant plaintiff purchased the lands from Sonbai and Valbai under registered sale-deed dated 28th August, 1968 for valuable consideration without notice of claim of any third party. Under the said document he was put in possession of the lands and it is his contention that even to-day, he is in actual possession thereof.

2. It appears that in the year 1969, proceedings under the Administration of Evacuee Property Act, 1950 were commenced and the aforesaid lands were declared to be the evacuee properties in the said proceedings. These lands were thereafter dealt with under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and the present opponent No. 4 was allotted the lands in question. Thereafter orders were passed in favour of the allottee to put him in actual possession of the lands in question. Thereupon the present applicant filed the suit in question for a declaration that the lands were not evacuee properties and that he was the absolute owner of the said lands under the registered sale-deed dated 28th June, 1968 and his possession could not be disturbed in pursuance of any order passed under the Displaced Persons (Compensation and Rehabilitation) Act, 1954.

3. The aforesaid suit was filed against the Collector of Junagadh, Mamlatdar of Vanthaii and the Union of India. In the said suit the present opponent No. 4 Mulchand Khaiurna! Khitnani filed an application under Order 1, Rule 10, Civil Procedure Code read with Section 151 of the said Code to be impleaded as a co-defendant. He alleged that he was the successor of Verumal Tekuraal, the original allottee in respect of the suit lands. According to him, the appeal filed by the applicant-plaintiff challenging the proceedings commenced under the Administration of Evacuee Property Act, 1950 as well as the Displaced Persons (Compensation and Rehabilitation) Act, 1954, was dismissed by the Authorised Chief Settlement Commissioner on 7th June, 1968 and a Sanad was issued in favour of the allottee on 15-2-79. Accordingly, he alleged that he had become the owner of the aforesaid two survey numbers and was entitled to be put in actual possession thereof. He, therefore, applied to the court, alleging that he was vitally interested in the outcome of the suit and as the suit was filed mala fide with a view to keeping him out of possession, he be joined as co-defendant in the suit to enable him to contest the same on merits.

4. The aforesaid application Exh. 9 was heard and disposed of by the learned Jt. Civil Judge, Senior Division, Junagadh on 30th Jane, 1979. The learned Judge took the view that the said opponent No. 4 was a necessary party to the suit as his rights in the lands allotted to him were likely to be settled in the said suit. On this line of reasoning the learned Trial Judge granted the application and directed that he be impleaded as defendant No. 4 in the suit. It is against this order passed by the learned Trial Judge, that the original plaintiff has approached this Court.

5. The relevant part of Order I, Rule 10(2) provides that 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 party which ought to have been joined, whether as plaintiff or as a defendant or whose presence, before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle and the questions involved in the suit, be added. It further provides that where a defendant is added, the plaint 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. Thus, under Sub-rule (2) of Rule 10 Order I, the Cour invested with the discretion to add a party as co-defendant at any stags of the trial on such terms and conditions as it may think fit to impose if it is of the opinion that the party ought to have been joined at the initial stage or that the presence of the party before the Court is necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit. In Razia Begum v. Sahebzadi Anwar Begum and Ors. : [1959]1SCR1111 , the Supreme Court pointed out that the question of addition of parties under Order I, Rule 10, Civil Procedure Code, is generally not one of initial jurisdiction of the court, but of a judicial discretion which may be exercised in view of all the facts and circumstances of a particular case. It further pointed out that 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, That w,is a c-us in which a suit was filed for a declaration that the plaintiff-appellant was a legally wedded wife of respondent No. 3 and that she was also entitled to receives from him 'Kharoh-e-Pandan' at a certain rate. Respondent No, 3 filed his written statement admitting the fact that the appellant was married to him and that she was entitled to maintenance as claimed in the suit. He also admitted that the appellant bore him three issues of the marriage. At that stage, respondent No. 1 claiming to be the lawful and legally wedded wife of respondent No. 3, and respondent No. 2, the son of respondent No, 3 by the first respondent, filed an application under Order I, Rule 10(2) as being interested in denying the marriage of the appellant and her rights and status. The Trial Court allowed the application and directed the respondents Nos. 1 & 2 to be added as defendants. The High Court in revision refused to interfere with the discretioa of tin trial court, The Supreme Court, applying the proposition set out above, held that: the discretion was rightly exercised on sound judicial consideration and it was not necessary to interfere with the order passed by the trial court.

6. In Udit Narain Singh Malpaharia v. Additional Member Board of Revenue Bihar and Anr. : AIR1963SC786 , the Supreme Court pointed out who are the necessary and proper parties to the petition. Their Lordships answered the question in para 7 of the judgment in the following words: 'The law on the subject is well settled; it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.

7. In Muslim Wakf Board, Bhopa! and Anr. v. Municipal Board Bhopal A.I.R. 1950 Madhya Pradesh 249, Shrivastava J, while interpreting Order I, Rule 9, Civil Procedure Code held that a plaintiff cannot be compelled against his wishes to implead anyone as a defendant. He is perfectly at liberty to frame his suit in any way. If the third party is a necessary defendant, then the suit would be dismissed; otherwise the case would be decided on the merits so far as the parties before the Court are concerned. At best, the only order that can be passed by the court would be to allow the plaintiffs time to decide whether they would like to implead the third party as a co-defendant and if they decided against it, the court has no power to compel them.

8. A similar view was taken by J.M. Sheth J. in Ambalal Maganlal Rawal v. Vaghari Bababhai Shivabhai and Anr. (1974) 11-Gujarat Law Times 215. It was pointed out that as a rule the Court should not add a person as a defendant in a suit when the plaintiff is opposed to such addition. This reason is that the plaintiff is the dominus lilts. He is the master of the suit. He cannot be compelled to fight against a person against whom he does not wish to fight and against whom he does not claim any relief. It was pointed out that the word 'may' in Sub-rule (2) of Rule 10, of Order 1 of the C.P.C. clearly imports a discretion that the Court will, while exercising the same discretion, invariably ascertain the wishes of the plaintiff before directing a third party to be added as a co-defendant to his suit. In exceptional cases only, where the Court finds that the addition of the new defendant is absolutely necessary to enable it to adjudicate and effectively and completely decide the controversy, it may add the said party as a co-defendant; the objection of the plaintiff notwithstanding.

9. From the above case law, it becomes clear that Sub-rule (2) of Rule 10 of Order I of the Civil Procedure Code invests the Court with discretion to add a party as co-defendant to the suit. Ordinarily, the discretion will not be exercised in the face of opposition from the plaintiff. In the instant case, there was stiff opposition from the plaintiff and yet, the Court exercised its discretion in over-ruling that opposition and in directing the co-defendant to be added as a party to the suit. The Court can, in a fit case, over-rule the objection of the plaintiff if it finds it necessary to implead the third party as a co-defendant to enable it to effectually and completely adjudicate upon and settle all questions involved in the suit. The question then is, was it necessary to effectually and completely adjudicate upon and settle all questions involved in the suit, to add defendant No. 4 as co-defendant to the suit? In other words, could it be said, in the facts and circumstances of the present case, that the presence of defendant No. 4 was necessary to enable the Court to effectually and completely adjudicate upon all questions involved in the suit? Putting it differently, could the questions involved in the suit not be disposed of, effectually and completely in the absence of defendant No. 4 as co-defendant? What is the real dispute involved in the suit? The property which the plaintiff claims to be of his ownership, has been declared to be evacuee property and has been allotted to defendant No. 4, a displaced person. The plaintiff challenges the order whereunder the property was declared to be evacuee property. It is a different matter whether or not the Court will have jurisdiction to decide such a suit because that question does not arise at the present stage. It is the decision of the officers of the Union of India declaring the property in question to be evacuee property which is the subject matter of challenge in the suit. If the property is not evacuee property, then, there would be no question of allotting the said property to a displaced person under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. On the question whether the property is evacuee property or otherwise, the real contesting parties are the plaintiff on the one side and the officers of the Union of India on the other side. If the order or decision of the Union of India declaring the property in question to be evacuee property is upheld, then the order of allotment in favour of defendant No. 4 will stand. If on the other hand, it is found that the property was wrongly declared to be evacuee property and that, in fact, it was never evacuee property, the order of allotment in favour of defendant No. 4 will automatically collapse. Therefore, the real contesting parties are the plaintiff on the one hand, and defendant Nos. 1, 2 & 3 on the other. Defendant No. 4 has, no doubt been allotted the property in question, but that allotment is on the basis that the property is evacuee property. If that basis disappears, the order of allotment cannot stand. What has been challenged in the suit is the order declaring the property to be evacuee property. The defendants Nos. 1, 2 and 3 have to meet that challenge to their order. Till that stage the allottee does not enter the field. The stage of allotment is a post-declaration stage. The presence of the allottee is not at all necessary to effectually and completely adjudicate upon and settle the question regarding the legality of the declaration and questions incidental thereto. Even without his presence, all those questions can be effectually and completely adjudicated upon and settled in the suit. If in such circumstances the plaintiff objects to the addition of the allottee as a party to the suit, it cannot be said that the objection is unreasonable or wholly unsustainable. The addition of a party confers certain rights on the added party, such as a right to appeal etc., and it would not be proper, in a case where the presence of the party is not absolutely necessary to lightly implead him and thereby impose consequences obligations on the plaintiff. Therefore, in view of the observations of the Supreme Court in Udit Narain's case (supra), it is clear that the allottee is neither a necessary nor a proper party to the suit. The discretion should not be exercised lightly as it confers certain rights on the added party and entails certain consequences which the plaintiff would be justified in avoiding, because he cannot be expected to litigate with a party with whom it is unnecessary to litigate. Supposing in the instant case the plaintiff successfully proves that the order declaring his property to be evacuee property is illegal and the defendants Nos. 1, 2 and 3 are also satisfied that the view of the trial Court is unassailable and decide not to appeal, yet the plaintiff will have to fight further legal battles if the allottee decides to challenge the view in the higher forums. If it is found that the discretion is not exercised on sound judicial considerations this Court would be justified in interfering with the lower Court's order in the interest of justice. In the facts and circumstances of this case, I am satisfied that the lower Court's exercise of discretion is not judicious.

10. I am, therefore, of the opinion that the trial Court was not right in directing the allottee to be impleaded as a co-defendant in the suit.

11. In the result, therefore, this Revision Application succeeds, and the order passed by the learned trial Judge directing the plaintiff to implead the allottee-defendant No. 4 as a party to the suit, is set aside. Rule is made absolute accordingly with no order as to costs.


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