1. This is a plaintiffs' application in revision against the order of the learned Subordinate Judge, Theog dated 13-10-1952 whereby the plaintiffs were directed to file an amended plaint impleading the State of Himachal Pradesh as a defendant. This order was passed after the disposal of the preliminary issue whether the said State was a necessary party to the suit. The Court held that the State was a necessary party.
2. There are two preliminary objections raised by the learned counsel for the defendants-respondents. The first is that the plaintiffs are estopped from filing their revision because of an application which they filed on 23-10-1952 for extension of time to file the amended plaint in accordance with the aforesaid finding. There is no doubt that extension of time was in fact prayed for by the plaintiffs, but I do not think that by reason merely of having put in such an application the plaintiffs would be estopped from coming up in revision against the order in question. The learned counsel for the respondents cited--'Ramaswami Chettiar v. Chindambaram Chettiar', AIR 1927 Mad 1009 (2) (A);--'Sohan Lal v. Dhan Mal Ishar Das', AIR 1928 Lah 813 (2). (B),--'Bahadur v. Mohammad Din', AIR 1934 Lah 979 (C). All these were cases where a party sought to challenge an order after having accepted a certain benefit on condition of which the order was passed. In the present case no such benefit was accepted by the plaintiffs-petitioners. The mere fact that the plaintiffs asked for an extension of time could not be said to be tantamount to their having accepted any benefit. It appears that under the order in question the Court ordered the plaintiffs to pay certain costs; but no time for payment of costs had been fixed. Moreover, if the said order remains the costs will certainly be payable. In the result therefore I disallow the first preliminary objection and hold that the plaintiffs are not estopped from filing the present revision.
3. The next preliminary objection taken by the learned counsel for the respondents was that no question of jurisdiction is involved and therefore a revision petition is incompetent. If however the trial Court was wrong in holding that the State of Himachal Pradesh was a necessary party, it will be deemed to have assumed jurisdiction 'qua' the party ordered to be impleaded which it otherwise did not possess. As I shall presently show, the finding of the trial Court was erroneous. That being so, this was a case of the trial Court seeking to exercise jurisdiction not vested in it. The revision is therefore competent.
4. Coming to the merits of the issue, it appears that the plaintiffs filed the suit treating the defendants as trespassers. Their case was that the property in suit originally belonged to one Magni and that on his death his widow Mt. Khanki succeeded to it with life interest of a Hindu widow. Mt. Khanki is said to have died in or about 1944 and the present suit was filed in January 1950. The plaint allegation was that since the death of Mt. Khanki the defendants had been in wrongful possession. It was also pleaded that in case the defendants' possession was on foot of any alienation by Mt. Khanki, the possession would be illegal since she had no right to make the alienation. The plaintiffs set up their title to the property as reversioners to the last male-holder. The defendants on the other hand contended that the property was taken by escheat by the Balsan State and thereafter granted to them by that State on receipt of certain 'nazrana.' It is not necessary for disposal of the present issue to consider other pleas taken in defence. It may incidentally be stated further that one of the points taken up in the written statement was that the plaintiffs were aware of this escheat. The question is whether on these pleadings the State of Himachal Pradesh was, or was not, a necessary party.
5. I do not wish to express any final opinion on the question of whether the plaintiffs were, or were not aware of the escheat, because that might prejudice the disposal of the case eventually. But even if it be supposed that this defence allegation be correct, that would not affect the disposal of the present issue. Irrespective of whether the plaintiffs did or did not know of the escheat, and irrespective even of the fact whether an escheat had in fact taken place, the question for determination is whether, in view of the defence plea in question with regard to escheat, the Government is a necessary party. I am not taking into consideration the argument of the learned counsel for the plaintiffs-petitioners that for the disposal of the present issue only the allegations in the plaint should be taken into consideration. I say that even if the pleas contained in the written-state-ment of the defendants can validly be taken into consideration for the disposal of the issue, it cannot be held that the Government is a necessary party.
6. The distinction between a necessary and a proper party has been made in Order 1, Rule 10(2), C. P. C. The former is a party who ought to have been, joined, whether as plaintiff or defendant, and the latter one whose presence before the Court is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. The same point has been laid down in the following words by their Lordships of the then Federal Court of India in--'United Provinces v. Mt. Atiqa Begum', AIR 1941 P. C. 16 (D) :
'A person would be a necessary party if he ought to have been joined, that is to say, in whose absence no effective decree can be passed at all. He would be a proper party to be impleaded if his presence is necessary for an effectual or complete adjudication.'
7. Now, so far as the litigation between the present parties is concerned, it cannot be said that no effective decree can be passed in the absence of the State of Himachal Pradesh. There is no doubt that, in its paramount capacity as the State entitled to the land revenue in respect of the property in suit, the State of Himachal Pradesh would be interested in the result of the present litigation. There is also no doubt that in case the plaintiffs succeed, but the State of Himachal Pradesh do not wish that they should hold the land in suit, there may be further litigation between them. In that case it might be said that the present litigation would not effectually or completely dispose of the points in issue in this case. But that would only mean that the State of Himachal Pradesh is a proper, taut not a necessary, party to this litigation.
8. The learned counsel for the defendants respondents, contended that the matter of escheat cannot be fully disposed of without the State being a party to the litigation. That is not so. So far as the present parties are concerned, the matter can be finally disposed of, although not between the plaintiffs and the State of Himachal Pradesh. It was also contended that if the plaintiffs' suit succeeds the defendants would be entitled to a refund of 'nazrana' and the costs of improvements alleged to have been effected by them on the land in suit. That may be so, but if the defendants can validly claim these amounts from the plaintiffs they will get that relief in the present suit. If on the other hand such a claim of theirs lies against the Government, the mere fact that the Government is not a party would not prevent them from claiming the said sums from the Government by another suit.
9. The learned counsel for the respondents cited a number of rulings: --'Indar Singh v. Hazara Singh', AIR 1951 Punj 352 (E);--'Lakshmidevam-ma v. Nagayya', AIR 1949 Mad 369 (F);--'Man-gacharyulu v. Balarama Krishnamacharyulu', AIR 1940 Mad 225 (G); --'Shri Nath v. Nand Lal', AIR 1948 Oudh 44 (H). All of them were cases where the trial Court had exercised its discretion in favour of adding a proper party and it was held that the discretion could not be deemed to have been exercised improperly. The High Court did not therefore interfere. In the present case also the party sought to be impleaded is a proper, and not a necessary, party; but there is one important distinction. The distinction is that if the finding of the trial Court is allowed to remain the result of the suit would be its rejection by reason of the State of Himachal Pradesh being impleaded without a previous notice under Section 80, C. P. C. The learned counsel for the respondents argued that such a notice could be given even at this atage. That does not however seem to be correct because Section 80 provides that such a notice should be given before the institution of the suit. To give effect to the finding recorded by the trial Court would therefore be to foredoom the plaintiffs' suit to rejection, as already stated. Of course, this Court should not be swayed by any consideration as to what the result of the suit would be if it were a fact that the State of Himachal Pradesh were a necessary party. In that case the State must be impleaded irrespective of whether the result of the State being impleaded would be rejection of the plaintiffs' suit for want of a notice under Section 80, C. P. C. But, as I have stated, the State of Himachal Pradesh is not a necessary party, though it may be a proper party, for the disposal of the present suit. That being so, it would be a proper exercise of discretion in the present suit not to force the plaintiffs to implead a party the result of which would only be the rejection of the plaint.
10. While I had proceeded so far the learned counsel for the respondents wanted time to show that if the State of Himachal Pradesh is ordered to be impleaded under Order 1, Rule 10, C. P. C., no notice to it Under Section 80 of the Code will be necessary. The case was therefore adjourned. On the adjourned date the learned counsel cited two rulings in support of the above contention. One was--'G. I. P. Railway Company v. Mahadeo Ram', AIR 1926 All 5(35 (I). That was a suit instituted against the G. I. P. Railway while it was a private company. During the pendency of the suit the line was taken over by the Government, and the Secretary of State for India in Council was substituted as defendant. It was held that there was no question of instituting the suit against the newly impleaded defendant within the intendment of Section 80 because the suit had already been instituted, and the original defendant's interests had devolved upon the Government during its pendency, so that the matter was governed by Order 22, Rule 10, and that therefore no notice as prescribed by Section 80 was necessary. In the present case, however, there is no-question of devolution or assignment of interest during the pendency of the suit under Order 22, Rule 10 of the Code. This ruling has therefore no application.
The other ruling cited was--'Mahomed Yusuf Sahib v. Province of Madras', AIR 1943 Mad 341 (J). That was a suit under Order 21, Rule 63 of the Code, and it was held that as such a suit is a continuation of the claim proceeding under Order 21, Rule 58 no notice under Section 80 was necessary. Reliance was placed on--'S. A. Rajamier v. Subrama-niam Chettiar', AIR 1928 Mad 1201 (K), and the passage cited therefrom referred to 'fresh notice'. Presumably therefore a notice under Section 80 had already been given before institution of the claim proceeding under Order 21, Rule 58. It appears therefore to have been held that no fresh notice was necessary before the institution of a suit under Order 21, Rule 63 since such a suit is merely a continuation of the claim proceedings. The ruling therefore does not do away with the necessity of the notice in question. It has also no application to the facts of the present case which is not a continuation of any previous proceeding. I therefore hold that the possibility of the present suit being rejected for want of a notice under Section 80 is not ruled out in case the plaintiffs are ordered to implead the State of Himachal Pradesh. That being so, it would be just and proper not to exercise the discretionary power under Order 1, Rule 10(2) of the Code in favour of the addition of the State of Himachal Pradesh as a proper, as distinguished from a necessary, party.
11. Before I close I have to refer to an additional ruling cited by the learned counsel for thedefendants-respondents in connection with the question of whether the State of Himachal Pradeshis a necessary or only a proper party, viz., --'Krishna-swami Naidu v. Municipal Council Bellary', AIR1937 Mad 641 (L). This ruling was cited by himon the adjourned date. The ruling does not however support him, for it lays down that the questionwhether the Government is a necessary party ornot would depend upon the facts of each case andno general rule can be laid down. It was furtherheld that in cases where the plea of justertii isset up, it is generally considered desirable to makethe person whose title is set up a party to the suitto avoid multiplicity of litigation. It would appear therefore that in fact the Government wasordered to be impleaded in that case because itwas considered to be a proper party although, nodoubt, the expression used was that it was a necessary party. Moreover, in view of the importantcircumstance considered above, namely, that toorder the addition of the State of Himachal Pradesh would be to foredoom the present suit to itsrejection for want of a notice under Section 80 of theCode, it would not be just to hold, according to thisruling, that the Government was a necessary party.It has already been seen that, so far as the present parties are concerned, an effective decree canbe passed between them, one way or the other,even in the absence of the State of HimachalPradesh. Allowing the revision petition therefore,the finding of the trial Court that the State is anecessary party and the order passed by it directing the plaintiffs to file an amended plaint implead-ing the State as a defendant are set aside and theCourt is directed to dispose of the rest of theissues arising on the pledings of the parties without impleading the State of Himachal Pradesh.In view of the peculiar circumstances of the case,I make no order as to the costs of this revision.The parties will appear before the trial Court on20-6-1953.