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Murlidhar Shiv Dayal Vs. Krishi Upaj Mandi Samiti, Alwar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 242 of 1975
Judge
Reported inAIR1978Raj48; 1977()WLN626
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 1, Rule 10
AppellantMurlidhar Shiv Dayal
RespondentKrishi Upaj Mandi Samiti, Alwar and ors.
Appellant Advocate H.C. Rastogi, Adv.
Respondent Advocate G.P. Goyal, Adv. (for Nos. 1 and 3) and; G.S. Bapna, Adv. (for No. 4)
DispositionPetition dismissed
Cases ReferredIn Hindustan Aeronautics v. Ajit Prasad
Excerpt:
.....party on ground that all points in suit will be adjudicated finally court allowed p's application--held, person having counter claim is normally impleaded as a party--no illegality committed by adding p as a party.;the provisions of order 1 rule 10, cpc confer wide discretion on the trial court. if the trial court, exercises discretion in favour of the applicant who wishes to be impleaded as a party, this court on the revisional side, will not ordinarily inter fore unless impleading of the party results in (sic) failure of justice, or where the trial court has illegally or with material irregularity exercised its discretion.;if prabhati lal had not been added as a party it might have led to multiplicity of proceedings. under order 1, rule 10. cpc even those persons can be impleaded as..........be decided in this suit and the suit for injunction would, thus, ultimately be converted into a suit for title. it was, therefore, contended that the learned civil judge acted illegally and with material irregularity in allowing the application. it was further contended that in a suit for permanent injunction, defendant no. 4 is not a necessary party. if for argument's sake it is assumed that the defendant no. 4 was a necessary party, then the plaintiff's suit is liable to be dismissed. it was, therefore, contended that by impleading defendant no. 4 intricate questions of title inter se between the plaintiff and the defendant no. 4 would have to be decided while the suit for permanent injunction could possibly be disposed of on the question of possession alone. reliance was placed on.....
Judgment:
ORDER

P.D. Kudal, J.

1. This revision petition under Section 115, C.P.C. is directed against the order of the learned Civil Judge, Alwar dated 22nd April, 1975, whereby he allowed an application of the respondent No. 4 Prabhatilal under Order 1, Rule 10, C.P.C., end ordered that he be implead-ed as defendant No. 4 in the suit.

2. The facts of the case, in brief, which are relevant for the disposal of this revision petition, are that Murlidhar plaintiff filed a suit against Krishi Upaj Mandi Samiti, Alwar and its President and Secretary for a permanent injunction restraining them from interfering with the possession of the plaintiff over the suit property. Parbhati Lal defendant No. 4 filed an application under Order 1, Rule 10, C.P.C. praying that he should be impleaded as a defendant in the suit as his interest is vitally involved and that his presence would enable the Court to completely and finally adjudicate upon all the points involved in the suit. The learned Civil Judge allowed the application on 22nd April, 1975. Feeling aggrieved against this order, the plaintiff has filed the present revision petition before this Court.

3. On behalf of the plaintiff-petitioner, it was contended that in a suit for permanent injunction the question of title of one shop inter se between the plaintiff and the defendant No. 4 could not be decided in this suit and the suit for injunction would, thus, ultimately be converted into a suit for title. It was, therefore, contended that the learned Civil Judge acted illegally and with material irregularity in allowing the application. It was further contended that in a suit for permanent injunction, defendant No. 4 is not a necessary party. If for argument's sake it is assumed that the defendant No. 4 was a necessary party, then the plaintiff's suit is liable to be dismissed. It was, therefore, contended that by impleading defendant No. 4 intricate questions of title inter se between the plaintiff and the defendant No. 4 would have to be decided while the suit for permanent injunction could possibly be disposed of on the question of possession alone. Reliance was placed on Syed Wazir Ali v. Syed Wali, 1968 Raj LW 324, Hussain v. Shafi Mohammed, 1969 WLN 316, Ramnarain v. Nandlal, 1970 Raj LW 277 and Deputy Commissioner v. Rama Krishna, AIR 1958 SC 521.

4. On behalf of non-petitioner No. 4, it was contended that the plaintiff has asserted in the plaint that he is the owner of two shops which are compromised in the suit property. This assertion by the plaintiff, it was contended is manifestly erroneous inasmuch as the answering defendant No. 4 is the owner of the shops, though the plaintiff has occupied that shop as a licensee. It was contended that the defendant No. 4 is vitally interested in the result of the suit, and as such, the learned trial Court correctly allowed his application under Order 1, Rule 10, C.P.C. It was further contended that if the application under Order 1, Rule 10, C.P.C. is not allowed, it would lead to multiplicity of proceedings and harassment to the parties. Reliance was placed on Sampatbai v. Madhu Singh, AIR 1960 Madh Pra 84, Moti Lal v. Vasant, AIR 1956 Hyd 173 and State of Himachal Pradesh v. Sohan Singh, AIR 1955 Him Pra 43.

5. It was further contended that the scope of revision is extremely limited and even if a question of law has been wrongly decided or discretion has been improperly exercised, then too, the Court of revision could not interfere. Reliance was placed on Hindustan Aeronautics Ltd. v. Ajit Prasad, AIR 1973 SC 76 : (1973 Lab IC 407).

6. On behalf of the defendants Nos. 1 to 3, it was contended that the plaintiff has pleaded title over the suit property, and the question of prima facie case, is based on possession which is essential for issue of a permanent injunction shall depend on the title which the plaintiff has in the instant case. It was, therefore, contended that the learned Civil Judge did not commit any error in allowing the petition under Order 1, Rule 10, C.P.C. and in ordering that Parbhatilal be added as defendant No. 4. The learned counsel for the defendants Nos. 1 to 3 also invited the attention of the Court to paragraphs Nos. 1, 2, 4 and 9 of the plaint, and also to the relief which the plaintiff has claimed. It was contended that a bare perusal of these assertions in the plaint and the relief claimed would indicate that the plaintiff has based his claim, on title also apart from possession.

7. The respective contentions of the learned counsel for the parties have been considered and the record of the case carefully perused.

8. In para No. 1 of the plaint the plaintiff has asserted that there are two shops along with verandah, which are owned by the plaintiff. In para. No. 2 of the plaint it was asserted that the plaintiff is a resident of village Malakheda, and that he is in possession, as owner, of the ancestral property situated in that village. In para No. 4 of the plaint, the plaintiff asserted that he is the owner of the two ancestral shops described in the plaint, and that he is in possession thereof, and he has repaired the same with the permission of the Gram Panchayat. In para No. 9 of the plaint again, the plaintiff has claimed title. So far as the relief which has been claimed in the plaint, relief No. 4 makes a reference about the two ancestral shops over which the plaintiff claims possession and prays for an injunction restraining the defendant from in any way interfering with his enjoyment. It is also contended by the plaintiff that the sale-deed in favour of Parbhatilal does not confer any right on him, and as such, his claim regarding the ownership of that shop is not sustainable In Syed Wazir Ali v. Syed Wali, 1968 Raj LW 324, it was held that where a suit was filed by one set of Khadims and Bawarchies against another set claiming their income, the Dargah Committee requested for being impleaded as party on the allegation that the Committee alone is entitled to receive all the income, it was held that it is not proper to implead Dargah Committee. It may file a separate suit. In Hussain v. Shafi Mohammed, 1969 WLN 316, it was held that:--

'The plaintiff being generally dominus litus, he cannot be compelled to fight against some other litigant not of his own choice unless such a process is required by a positive rule of law. Order 1, Rule 10(2) is applicable to two classes of cases only. One class is where he ought to have been joined as a plaintiff or a defendant and is not so joined. That is a case of a necessary party. The other class is where without his presence the questions in the suit cannot be effectually and completely decided.

The Court has no power to join a person as a party who claims to belong to this class unless it is prima facie satisfied about the plausibility of his claim. Rule 10(2) cannot be read as requiring all persons who choose to lay claim to any sort of right, title or interest in respect of any portion of the subject of a suit to be made a party.'

9. In Ramnarain v. Nandlal, 1970 Raj LW 277, it was held that in case of encroachment on footpath by defendant affecting access of plaintiff's shop, in a suit to restrain and injunction, the Municipality was not a necessary party.

10. In Deputy Commr. v. Rama Krishna, AIR 1953 SC 521, it was held that there are two tests for deciding whether a certain person was a necessary party in a proceeding; (1) that there must be a right to some relief against such party in respect of the matter involved in the proceedings in question, and (2) it should not be possible to pass an effective decree in the absence of such party.

11. In Sampatbai v. Madhusingh, AIR 1960 Madh Pra 84, it was held that (At p. 84 of AIR) :

'Under Order 1, Rule 10(2) the test is not whether the joinder of the person proposed to be added as a defendant would be according to or against the wishes of the plaintiff or whether the joinder would involve an investigation into a question not arising on the cause of action averred by the plaintiff. It is whether the relief claimed by the plaintiff will directly affect intervener in the enjoyment of his rights. It is not enough that the plaintiff's rights, and rights which the person desiring to be made a defendant wishes to assert should be connected with the same subject-matter. The intervener must be directly and legally interested in the answers to the question involved in the case. A person is legally interested in the answer only if he can say that it may lead to a result that will affect him legally -- that is by curtailing his legal rights. Again in determining whether or not an applicant has a proprietary right in the subject-matter of an action sufficient to entitle him to be joined as a defendant the true test lies not so much in an analysis of what are the constituents of the applicant's rights, but rather in what would be the result of the subject-matter of the action if those rights could be established.'

12. Moti Lal v. Vasant, AIR 1956 Hyd 172, deals with the rights of one of the mortgagees to be impleaded under Order 1, Rule 10, C.P.C. This case has no applicability to the facts of the present case.

13. In State of Himachal Pradesh v. Sohan Singh, AIR 1955 Him Pra 43, it was held that (at p. 44) :--

'The provisions of Order 1, Rule 10, confer a wide discretion on the Court to implead any person, whose presence it may consider necessary to adjudicate upon and settle all the questions involved in the suit. Hence, where the Court directs the plaintiff to implead certain persons who are vitally interested in the result of the suit, as defendants, the order even if wrong on merits, will not be interfered with in revision as it cannot be said that the Court acted without jurisdiction or with material irregularity in the exercise of its jurisdiction.'

14. The learned counsel for the defendants Nos. 1 to 3 relied upon Urban Improvement Trust v. Raj Kumari, 1969 Raj LW 121 : (AIR 1969 Raj 131) in which it was held that (at pp. 134-135 of AIR):

'Where there is a contractual relationship of landlord and tenant and the defendant has been inducted into possession of the suit property as tenant by the plaintiff and the rule of estoppel contained in Section 116 of the Evidence Act operates against the tenant no question of impleading a third person as a party setting up title to the suit property can arise because any enquiry about the title of a third party would be completely shut out by reason of the rule of estoppel and in such cases the third person would not be a proper party within the meaning of Order 1, Rule 10(2) C.P.C. However, in cases where the plaintiff claims title to the suit property on the basis of inheritance, assignment etc. and the tenant has not attorned to him and the above-mentioned rule of estoppel does not operate against him and it is open to him in the suit to set up the title of a third person, such third person in appropriate cases can be regarded as a proper party.'

15. In Mangacharyulu v. Krishnamacharyulu, AIR 1940 Mad 225, it was held that:--

'A person may be added as a party to a suit when his presence before the Court is necessary to enable the Court effectually and completely adjudicate and settle all the questions involved in the suit and not merely the questions between the parties to the suit.

In a suit for declaration of title to certain rights a person claimed joint interest in those rights with one of the plaintiffs and denied the title of the other plaintiffs. On his application to be impleaded as a defendant: Held that his presence was necessary within the language of Order 1, Rule 10.'

16. In Ghanshyamlalji v. Collector, Udaipur, 1958 Raj LW 413 : (AIR 1958 Raj 161), it was held that a person whose presence before the Court is necessary in the present case to enable to frame a proper scheme for the management of the temple and its properties, being a descendant of the founder, and vitally interested in the temple's spiritual and temporal management should be impleaded as a party.

17. In the plaint, the plaintiff has prayed for issue of permanent injunction. His plea for permanent injunction is based on title as well as on possession. The manner in which the plaint has been framed, investigation into the title of the plaintiff seems inevitable. Prabhatilal claims himself to be the owner of one of the shops, and has a vital interest in the result of the suit. His presence, in my considered opinion, would enable the Court to completely and effectively adjudicate upon all the questions which are involved between the parties.

18. The provisions of Order 1, Rule 10. C.P.C. confer wide discretion on the trial Court. If the trial Court exercises discretion in favour of the applicant who wishes to be impleaded as a party, this Court on the revisional side, will not ordinarily interfere unless impleading of the party results in manifest failure of justice, or where the trial Court has illegally or with material irregularity exercised its discretion. In Hindustan Aeronautics v. Ajit Prasad, AIR 1973 SC 76 : (1973 Lab IC 407), it was held that High Court shall not interfere even if the order is right or wrong or in accordance with law or not, unless it has exercised its jurisdiction illegally or with material irregularity. The trial Court has committed no error of law. If Prabhati Lal had not been added as a party it might have led to multiplicity of proceedings. Under Order 1, Rule 10, C.P.C. even those persons can be impleaded as party who set up a counter-claim to the interest and title of the plaintiff. The present case is of this nature. I am of the considered view that it cannot be said that the learned lower Court has acted illegally or with material irregularity in exercise of its jurisdiction.

19. For the reasons stated above, there is no force in this revision petition which is hereby dismissed. Looking to the facts and circumstances of the case, the parties are left to bear their own costs.


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