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Samast Panch Kaum Helan Vs. Jameel Mohammed and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Civil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Petition No. 462 of 1984
Judge
Reported in1985(1)WLN211
AppellantSamast Panch Kaum Helan
RespondentJameel Mohammed and ors.
DispositionPetition dismissed
Cases ReferredMahant Lakshmi Chand v. Mst. Gobindi
Excerpt:
.....board to establish title to suit properties--held, court made no mistake by impleading wakf board as party.;order 1, rule 10(2) of the code empowers the court to strike out or add parties whose presence before the court may be necessary in order to enable the court to adjudicate upon and settle all the questions involved in the suit effectively and completely. in doing so, the consideration before the court should be that the scope of the suit is not enlarged, the nature of the suit is not changed and the case of the parties is not prejudiced. the party added under the provision should have a direct interest in the subject-matter of litigation.;one of the issues is whether the property belongs to the plaintiffs and they are entitled to rendition of accounts from defendant nos. 1..........mr. dinesh maheshwari, learned counsel for the petitioners strenuously contended that the suit shops not being the property of the masjid could not have been registered with the board without the permission of the whole community. that, the suit was filed on march 27, 1976 and the said registration with the wakf board was made on august 10, 1977. according to the learned counsel for the petitioners, this registration, subsequent to the filing of the suit, will not in any way effect the proceedings. that the board cannot, be considered to be a proper party even, what to talk of necessary party because the shops mentioned in the registration certificate are some different property belonging to the masjid and not the suit shops.6. mr. rl-maheshwari, learned counsel for.....
Judgment:

Kanta Bhatnagar, J.

1. This revision petition has been preferred against the order dated July 20, 1984 passed by the Additional District Judge, Udaipur by which the application of non-petitioner No. 35, Rajasthan Board of Muslim Wakfs, Jaipur (hereinafter to be referred as 'the Board') dated August 10, 1979 praying for being impleaded as party to the proceedings was allowed.

2. On March 27, 1977 a representative suit under Order 1, Rule 8 of Civil Procedure Code (hereinafter to be referred as 'the Code',) was filed for rendition of accounts, declaration, perpetual injunction and possession of seven shops situated outside the Masjid Kaum Helau (hereinafter to be referred as 'the Masjid') by Samast Panch Kaum Helan, Udaipur through the petitioners against the non-petitioners No. 1 to 34 on the ground that non-petitioner Nos. 1 and 2 Jameel Mohd. and Shafi Mohd. were realising the rent of those seven shops without any authority and they were neither giving amount of the rent nor were entrusting the charge to the executive elected on December 3, 1975. In their written statements defendant Nos. 1 and 2 denied the allegation of unauthorisedly realising the rent and stated that there were two shops belonging to the Masjid (Mosque) and from the rental income five more shops were constructed and there was a plan to construct a Musafirkhana with the rental income of the shops. It was stated in the written statement so filed that the Wakf Board is a necessary party in the suit and without issuing notice to the Board, suit was not maintainable The Board having come to know about the proceedings filed an application on August 10, 1979 for being impleaded as party on the ground that the shops were registered with the Board and it was a necessary party to the proceedings. The learned Judge, as stated earlier, allowed the application. That caused grievance to the petitioners. Hence the revision petition,

3. Notice at the admission stage was given to the non-petitioner No. 35, the Board and Mr. R.L. Maheshwari appeared on its behalf.

4. I heard learned Counsel for the parties and perused the record of the case available with the learned Counsel for the parties.

5. Mr. Dinesh Maheshwari, learned Counsel for the petitioners strenuously contended that the suit shops not being the property of the Masjid could not have been registered with the Board without the permission of the whole community. That, the suit was filed on March 27, 1976 and the said registration with the Wakf Board was made on August 10, 1977. According to the learned Counsel for the petitioners, this registration, subsequent to the filing of the suit, will not in any way effect the proceedings. That the Board cannot, be considered to be a proper party even, what to talk of necessary party because the shops mentioned in the registration certificate are some different property belonging to the Masjid and not the suit shops.

6. Mr. RL-Maheshwari, learned Counsel for non-petitioner No. 35 referred to Sections 55, 57 and 59 of the Waks Act, 1954 (hereinafter to be referred as 'the Act') and submitted that it was the duty of the Court to issue notice to the Board and if the Court failed to do so and the Board filed the application for being impleaded as a party the Court had rightly allowed the application. Mr. R.L. Maheshwari, raised the objection about the maintainability of the revision petition on the ground that implead-ing of a party under Order 1, R. JO of the Code is a discretionery power with the Court and such an order is not revisable. Another argument advanced by Mr. R.L. Maheshwari was that the case of the petitioner does not fall in any of the three clauses of Section 115 of the Code. That, the proviso added by the Amended Act of 1976 imposes restriction on the Court to interfere in revision in orders though coming within the ambit of Section 115(1) but not covered by Clause (a) or (b) of the proviso. Dealing with the merits of the case, Mr. R.L. Maheshwari contended that because the sale-deed of the land on which the suit shops are situated is in favour of the Masjid and the certificate of registration with the Board for the shops, the learned trial Judge has rightly allowed the Board to be impleaded as a party. It has been emphatically argued that neither in the written statement nor in reply to the application filed by the Board for being impleaded as a parly, the petitioners-plaintiffs have averred that the seven shops mentioned in the registration certificate are shops different from the suit shops. Both the learned Counsel referred to a number of authorities to substantiate their rival contentions, which I would discuss at appropriate place.

7. Jameel Mohd. is the Mutwali of the Masjid. The contention of the plaintiff in the suit was that on December 3, 1975 in a meeting of the Helan Community an executive of eleven members was elected who was authorised to look after the property of the community. The declaration sought in the suit is that the executive committee so elected was a legally constituted body authorised to look-after the property of the Masjid. The possession sought is of the suit shops. The rendition of accounts is sought from non-petitioner Nos. 1 and 2 who had realised the rent. The prayer for perpetual injunction is for restraining from the realising of the rent and in any way dealing with the suit shops in future. The case of the non-petitioner Nos. 1 and 2 and that of the Board is that the property being registered with the Board 1/6th of the income is deposited with the accounts of the Board and no proceedings can be initiated or proceeded with without notice to the Board.

8. Order 1, Rule 10(2) of the Code empowers the Court to strike out or add parties whose presence before the Court may be necessary in order to enable the Court to adjudicate upon and settle all the questions involved in the suit effectively and completely. In doing so, the consideration before the Court should be that the scope of the suit is not enlarged, the nature of the suit is not changed and the case of the parties is not prejudiced. The party added under the provision should have a direct interest in the subject-matter of litigation.

9. In the case of Razia Begum v. Sahebsadi Anawar Begum and ors. : [1959]1SCR1111 their Lordships have been pleased to lay down the principles to be kept in mind while passing an order under Rule 10 of Order 1 of the Code for addition of the parties as under:

The question of addition of parties under Rule 10, Order 1 of the Code of Civil Procedure, is generally not one of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case, but in some cases, it may raise controversies as to the power of the court, in contradiction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in Section 115 of the Code. 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.

10. In the case of Sarup Chand v. Nagar Palika Sangrur and ors. AIR 1980 P&R; 114 the question about the revision against the order allowing an application of one Taliaram for impleading him as defendant came for consideration and his Lordship was pleased to order that the provisions of Order 1, Rule 10 of the Code 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, High Court in revision will not ordinarily interfere, unless implaading of the party results in manifest failure of justice, even if it may be held that the Trial Court acted illegally or with material irregularity in exercise of its jurisdiction. The revision petition was dismissed because according to his Lordship, the petitioner was unable to point out that how the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to him.

11. In the case of Ranwsh Chandra v. Mukhtyar Singh 1980 RLW 110 the trial Court had impleaded a party whose presence was not required for the decision of controversy in suit. His Lordships was pleased to hold that the Court committed a serious illegality in the exercise of jurisdiction and the revision petition was entertained and allowed on the ground that the person impleaded as party under Order 1, Rule 10 of the Code claimed the title and possession over the property independently in his own right and by impleadiag him as party, the scope of the inquiry of the suit was to change entirely and the plaintiff had to face the case of the party whose claim was in no way connected with the proceedings. His Lordship was of the opinion that impleadiag of that person would prejudice the case of the plaintiff whereas it would not be so far the person so impleaded because be was claiming title and possession over the property independently in his own right and if he has not impleaded as a party in the suit, no judgment or decree passed in the suit would ever bind him.

12. In the case of Mahesh Sewa Samiti Bhilwara v. UIT Bhilwara and Anr. 1984 RLR 351 his Lordship was pleased to discuss the two clauses of the proviso to Section 115 of the Code. Placing reliance on the principles enunciated in Samp Chand's case AIR 1980 P&R; 114 it was held that every wrong order will have some bad effect but that does not mean that it would result into failure of justice or irreparable injury.

13. In order to make an order revisable the case should fall in any of the three clauses of Section 115 of the Code. The argument of the learned Counsel for the petitioners is that the present case falls within Clause (c) of Section 115 of the Code because the Court has acted illegally and with material irregularity in exercise of its jurisdiction. The reason advanced by the learned Counsel is that the principle of 'dominus litis' has been overlooked by the learned trial Judge and the plaintiffs case is prejudiced because they would have to conduct the case not in the way they desire and one entitled to, rather, they will have to face the plea taken by the Board which wants to establish its individual right over the property. According to the learned Counsel, it would have enlarged the scope of the litigation and the question of the title over the property would have to be decided by the Court which is not the subject-matter of the suit.

14. The pertinent question to be determined in the case is whether the Court had wrongly exercised the jurisdiction in impleading the Board as pasty so as to bring the case within the ambit of Clause (c) of Section 115(1) of the Code. If it is so then the next question would arise as to whether the case falls within Cl.:(b) of the proviso to Section 115 of the Code and this Court in exercise of revisional jurisdiction should set aside the impugned order.

15. Learned counsel for the petitioners vehemently argued that the learned trial Judge has sated illegality in exercise of jurisdiction vested in him for proceeding under Order 1, Rule 10 of the Code overlooking the principle of dominus litis because the petitioners-plaintiffs were not aggreable to the Wakf Board being impleaded as a party. To substantiate his argument, the learned Counsel referred to the principle enunciated in the case of Mazhar Hussain v. Shaft Mohammed & ors. 1969 WLN 316 wherein his Lordship was pleased to hold that the plaintiff being generally dominus litis 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 casses only. One class is, where he ought to have been joined as a plaintiff or 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. His Lordship was further pleased to observe that the Court has no power to join a person as a patty 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. In view of the facts of that case his Lordship was pleased to hold that there was no prima facie material on the basis of which it might be said that right of Mohd. Farooq, if any, in the property in the suit was bonafide. For that reason the order for impleading him as a party by the trial Court was set aside.

16. ln the case of Sampo Frozen Pooda and ors. v. Karnataka Bank Ltd. & ors. AIR 1983 NOC 139(Ker) discussing the principle of dominus litis his Lordship was pleased to hold that in the normal course, one cannot be impleaded as additional party if the plaintiff does not want. It was further observed that under Order 1, Rule 10(2) of the Code, the Court has a discretion and a person who is a necessary party will have to be added as a party even if it is opposed by the plaintiff, because justice cannot be done without him in the party array. The test laid down by his Lordship for the necessity and propriety of impleading a person as party, whether the plaintiff agrees to it or not or is that if such an impleading is for the effective adjudication of the 'real controversy' between the parties the Court should exercise its discretion and that the parties sought to be impleaded should have a direct interest, a legal interest and not a mere commercial interest.

17. Learned counsel for the Wakf Board referred to the case of Harbans Singh and Ors. v. E.A. Srinivasan and Anr. : AIR1979Delhi171 wherein while con-siderating the principle of dominus litis in the light that the plaintiff in a suit cannot be made, against his consent, to fight a third party other than the defendant impleaded by him his Lordship was pleased to hold that this is only the normal and general and not invariable rule and in appropriate cases a third person can be impleaded as a party. According to his Lordship Order 1, Rule 10 can be invoked not only by the parties to the suit but by the Court suo moto. But the Court can act only when some circumstances are brought to its notice by some party to show that it is necessary to implead some other party also.

18. The conclusion that can be drawn from the principles so enunciated would be that the plaintiff being dominus litis should have the choice to proceed against a particular person or persons and should not be forced to enlarge the scope of the litigation to his prejudice by bringing person whose presence is not necessary for the effective and complete decision of the case or propriety does not demand so. In other words if the person sought to be impleaded as defendant or desirious of being so impleaded has a direct and immediate interest in the dispute in controversy in the suit, he may be imp-leaded as a party despite the plaintiff contesting such a step.

19. With the above principle in mind the facts of the present case will have to be looked into to arrive at a conclusion as to whether the Wakf Board has been right allowed to be impleaded as a defendant in the case by the learned trial Judge. It will also have to be seen whether in doing so, the scope of the litigation would be enlarged to the prejudice of the plaintiffs and they will have to set up their title which as argued by their learned Counsel they are not otherwise expected to do.

20. The case of the petitioners is that the land on which shops in dispute have been constructed belong to the Hela Community since 1954 and the Masjid had no right or control over those shaps. According to the learned Counsel, these shops could not have been registered with the Wakf Board and have not been done so even if the registration certificate is taken into consideration. The case of defendant Nos. 1 and 2 in the trial Court was that the property has been purchased from the UIT in the name of Hela Community Masjid in the year 1959 through a registered sale-deed and therefore it could be and has been registered with the Wakf Board. It was the plea in the written statement taken by defendant Nos. 1 and 2 that the property having been registered with the Board, the supervision and management was with it. Learned counsel for the Board has contended that 1/6th of the income was being deposited with the Board and in case the suit is allowed to proceed in the absence of the Board its case would be prejudiced. About these shops not being the subject-matter of registration, Mr. R.L. Maheshwari learned Counsel for the Board, has vehementely urged that the petitioners have no where come with the case as urged by their learned Counsel here that the seven shops registered with the Board are other than the suit shops.

21. Mr. Dinesh Maheshwari tried to meet this contention by referring to the reply to the application of the Wakf Board for being impleaded as a party wherein it has been mentioned that the suit shop were not registered. On this point it may be observed that the question as to whether the suit shop are same or not would be the subject-matter of inquiry in the suit and this Court while deciding this revision petition is not required to give a finding on that controversy,

22. Learned counsel for the Board referred to the case of Mohammed Ghouse Sahib and Ors. v. Mohammad Kuthubudin Sahib and Ors. : AIR1985SC375 wherein the provisions of issuance of notice to the Board in a suit instituted Under Section 92 CPG prior to the coming into force of the Wakf Act, came for consideration and it was held that the Court is required to issue notice of such a suit to the Board and in absence of a notice it would be open to the Board to have the decree declared void within one month of the Board's knowledge of the decree.

23. True it is that the registration was after the institution of the suit but that would not at this stage come in the way of the Board being considerd to be a proper party to the proceedings. What would be the effect of the registration of the property with the Board subsequent to the litigation and claim of the Board for a notice from the Court would be the subject matter of enquiry before the trial Court and this Court is not required to express any opinion on that point at this stage. Suffice it to say that in view of the claim of the Board that seven shops are registered with it and that question having a bearing on the suit would require a binding by the trial Court, the Board has a right to be impleaded a party in order to safeguard its interest.

24. In order to substantiate his contention that the application of the Board for being impleaded as a party has been rightly allowed, the learned Counsel for the Board has referred to Section 57 which casts a duty on the Court to issue notice to the Board at the cost of the party instituting a suit or proceeding relating to the title of the Wakf property or a right of the Mutawali. Sub-section (1) of that section lays down that any decree or order passed in the suit or proceeding shall be declared void, if the Board, within one month of its coming to know of such suit or proceeding, applies to the court in this behalf. Section 59 of the Act makes provision for the Board to be made a party on its application to a suit or proceeding regarding a Wakf. According to that section in any suit or proceeding, in respect of Wakf or any Wakf property by stranger or any other person, the Board may appear and plead as a party to the suit or proceeding.

25. Learned counsel for the petitioners submitted that these provisions are not attracted in the present case because the suit is not filed by the stranger to the Wakf rather the owners of the property have sought rendition of accounts from the persons unauthorisedly dealing with the property. It has been emphasised that the declaration sought is not regarding the property but regarding the legallity of the action of the executive committee selected by the Hela community.

26. The learned trial Judge has allowed the application in view of the provisions of Section 59 of the Act I have made observations earlier about the averments of the Board in the application and also on the point as to how they have a bearing on the suit and require a verdict of the Court. In view of that discussion and the circumstances of the case, the learned Judge has rightly allowed the application

27. The next point argued and requiring consideration is as to whether the scope of the suit would be enlarged by Wakf Board being impleaded as a party and that would prolong the litigation prejudicing the case of the petitioners.

28. In the case of Mahant Lakshmi Chand v. Mst. Gobindi 1965 RLW 487 referred to by the learned Counsel for the petitioners there were peculiar circumstances. The person to be impleaded as a party, despite knowledge of proceeding for a long time, applied to be impleaded at a very late stage of the proceedings, and set up an entirely new case and claimed adverse possession. In those circumstances it was held that it was improper to implead such a person as party.

29. In order to see whether by impleading the Board as a party the scope of the litigation would be enlarged or not, the issues framed on September 24, 1977 should be looked into. One of the issues is whether the property belongs to the plaintiffs and they are entitled to rendition of accounts from defendant Nos. 1 and 2. This issue saddles the plaintiff-petitioners with the responsibility of establishing the title over the property. Thus by adding the Board as a defendant, it cannot be said that the plaintiffs will have to establish their title over the property which they were not to do otherwise. Another issue struck out is whether the plaintiffs are entitled to an injunction and if so, up to what extent. This issue would also require the inquiry into the matter as to who are to be restrained and up to what extent. There is already an issue as to whether Rajasthan Wakf Board is a necessary party and if so to what effect, This being the position, if the Court after hearing the parties and considering the facts and circumstances of the present case, as is evident from the detailed order impugned in the revision petition, has allowed the Board to be impleaded as a party it, has, committed no mistake.

30. The Courts are to be vigilant to safeguard the interests of the parties to the proceedings and as discussed above, if addition of a party to the proceeding is likely to enlarge the scope of the litigation without if having an interest in it and the case of the plaintiff would be prejudiced, the Court should be reluctant to allow a party to be impleaded in the proceedings. The interest of the party to be impleaded should be direct as distinguished from the commercial interest. The Court should be prima facie satisfied about the plausibility of the claim of the person desiring to be impleaded.

31. I decline to agree with the learned Counsel for the petitioners that before allowing the application of the Board the Court should have come to a definite finding that the property in dispute is Wakf property. This, in my opinion, would be the subject-matter of inquiry and the decision would be on the basis of the evidence adduced by the parties to the proceedings.

32. It is noteworthy that the Court while allowing the application of the Board has safeguarded the right of the plaintiffs to challenge the right of the Board. It has been mentioned in the order that after the Board filing the written statement, the plaintiffs would be entitled to file the replies, taking all the objections they like to take in regard to the right of the Wakf Board over the property.

33. In view of the above discussion, there in no scope for any interference in the order under revision. The revision petition has no substance and is dismissed. Costs are made easy.


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