Anil Kalra vs Anuj Singhal and Others

Rakesh Sharma, J.—Heard Sri Sanjeev Singh, Counsel for the revisionist and Sri Jaspreet Singh, Counsel for the contesting respondent No. 1.

This Revision has been preferred against the judgement and order dated 3rd September, 2008 passed by the Ist Additional District Judge, Lucknow in S.C.C. Suit No. 13 of 2008.

Counsel for the revisionist submits that it is an admitted case of the respondent No. 1/plaintiff that he has purchased the said property from Smt. Mehrunisa, who was not having any right, title and interest over the property in question, as per the judgement and decree dated 25th January, 2003.He further submitted that the revisionist alongwith other co-owners had filed a Regular Suit No. 427 of 1986 re: Akhilesh Kalra and Ors. v. Dr Mulkraj and 58 Ors., in respect of plot in question and the said suit was decreed in favour of applicant/plaintiffs vide judgement and order dated 25th January, 2003 passed by Ist Additional Civil Judge [SenioCurrentr Division], Lucknow Thus the revisionist has been able to establish that he has a right, title and interest over the property in question and as such he is a necessary and proper party but the learned Court below without appreciating all the materials fact rejected the application of the revisionist causing serious prejudice to him.

To give strength to his arguments that the revisionist is a necessary party and that the impugned order suffers from infirmities, Counsel for the revisionist has placed reliance on Budhu Mal Vs. Mahabir Prasad and Others, ; Budhu Mal v. Mahabir Prasad and Ors. and 2005(3) ARC 384 Mohd. Zaki and Ors. v. IVth ADJ Bulandshahr and Ors.

Sri Jaspreet Singh appearing for the contesting respondent has strongly resisted the motion and submitted that the revisionist has no title or interest over the property in dispute, which was purchased by the answering respondent on 19.12.2006 through a registered sale deed and he is a land lord of the property. Further, the judgement and decree of which reference is being given by the applicant has already been stayed by the competent court in appeal and therefore, the applicant cannot derive any benefit from that judgement.

According to him in a suit between the land lord and tenant, the revisionist , who even does not have the title or interest over the property, cannot be allowed to enter in a dispute or litigation and this would unnecessary prolong the litigation apart from complicating the simple case.

Placing reliance on Jiya Lal v. Xith Additional District Judge, Meerut and Ors. 1994(1) ARC 280, Gopi Nath v. Ist ADJ Ghazipur and Ors. 2000(2) ARC 308 and Laxman Prasad Kanchan v. Kranti Kumar Kanchan and Ors. 1992 (2) ARC 392 , learned Counsel for the first respondent contended that in a suit between the landlord and tenant there was occasion for the revisionist to be joined as party. Further, the court should not add a person when the plaintiff is opposed to such addition. The reason being that the plaintiff is dominus litis. To give strength to above argument, reliance has also been placed on J.J. Lal Pvt. Ltd. and Others Vs. M.R. Murali and Another,

Having considered the submissions made by the Counsel for the parties, I am of the considered opinion that the court below committed an error in not considering the fact that the revisionist had substantial interest in the property, who had earlier filed a suit for cancellation of earlier sale deed in respect of the same property which took place several years ago, the reference of sale-deeds and event has been given in the judgment and order dated 25.1.2003. The court below has failed to consider the fact that any adverse order or observation may adversely affect the right of the parties.

It is a settled proposition of law that necessary party is one, without whom no order can be made effectively; a proper party is one, in whose absence an effective order cannot be made but whose presence is necessary for a complete and final decision on the question involved in the proceedings. A party adversely affected by an order is a necessary party and it would against the principles of natural justice to make an order adverse to him behind his back.

In Ram Swarup and Ors. v. S.N. Maira and Ors. (1999) 1 CC 738 the Hon''ble Apex Court has held that if a right has been conferred upon a particular person, it cannot be taken away the Court as a consequence of litigation between other parties without impleading such an affected person.

The Hon''ble Apex Court in the case of Prabodh Verma and Others Vs. State of Uttar Pradesh and Others, has held that all the parties whose rights are going to be affected by the judgement of the court should be heard and an opportunity of hearing should be allowed to such parties.

In Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others, the Hon''ble Supreme Court held that parties, 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, are necessary parties. What makes a person a necessary party is not merely that he has relevant evidence to come on some of the questions involved, nor it is merely that he has interest in the correct solution of some questions involved, and as relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party.

In Savitri Devi Vs. District Judge, Gorakhpur and Others, the Hon''ble Supreme Court held that the presence of a necessary party which is necessarily required as one of the parties is to implead as necessary party is to avoid multiplicity of the proceedings, which is also one of the main objects of the Order 1 Rule 10 CPC. If a necessary party is not impleaded or its application for impleadment is rejected and he is adversely affected, it may not be bound by the said judgment or would have a right to come up with a separate suit to enforce his alleged rights, which would amount to ultimately multiplicity of the proceedings.

In Razia Begum Vs. Sahebzadi Anwar Begum and Others, the Hon''ble Supreme Court held that the person claiming to be a necessary party must be a person who must have a direct interest in the action.

In Director of Technical Education and another Vs. Smt. K. Sitadevi, the Hon''ble Supreme Court examined a case regarding the correction of the date of birth in the service record. The case was filed by the employee without impleading the State (employer), and the submission that the relief was sought only against the Technical Education Board; which had issued the certificate containing the date of birth on the basis of which the date of birth had been entered in her service book, and thus, employer was not a necessary party, was rejected observing as under:

We, therefore, clarify the legal position that a decree without the State being a party is not binding on the employer (State) in the matter of determination of the date of birth.

Undoubtedly, a party can be added at any stage of the proceedings as held by the Hon''ble Supreme Court in Bal Niketan Nursery School Vs. Kesari Prasad, and as such, there is no illegality and infirmity in the impugned order dated 7.3.1995 passed by the trial Court.

For the reasons aforesaid, the impugned order dated 3.9.2008 passed by Ist Additional District Judge, Lucknow in S.C.C. Suit No. 13 of 2008 is hereby set-aside. The matter is remitted to the Additional District Judge Ist, Lucknow for deciding the same afresh. The court below shall give a fresh look to the instant case and pass appropriate order on the application of impleadment after giving due opportunity of hearing to the parties concerned.

The revision stands disposed of in above terms.