Durga Dutt Jha and Another vs Asharifilal Mahtha and Others

Dhavle, J.—This is an application in revision against an order of the Munsif of Madhubani directing that the name of defendant 2 be removed from the category of the defendants in a suit brought on a mortgage executed by defendant 1, father of defendant 2. This order was passed on 23rd June last. The Government Pleader, who appears for the petitioners, who were the defendants below, points out that on 26th May 1938, the learned Munsif had overruled the plaintiffs'' objection and allowed the prayer of defendant 2 to be brought on the record. The order complained of by the petitioners was passed less than a month after this order, and the learned Munsif purports to pass this order on the grounds of inconvenience and hardship and paramount title. The learned advocate, who appears for the opposite party here, is not able to support the later order of the Munsif on the grounds of inconvenience or hardship. As a matter of fact, the Government Pleader points out that it was after certain evidence had been taken and certain documents admitted by consent that the pleader for the plaintiffs opposite party objected to a question put on behalf of the defence regarding whether the property was the self acquired property of defendant 1 or the property of the joint family. It was then that certain rulings about the paramount title were cited before the learned Munsif, and acting, as he thought on them, the learned Munsif proceeded to undo his order of 26th May on the grounds of inconvenience and hardship.

The inconvenience and hardship appear to be purely imaginary in view of the fact, as I have already stated, that the learned advocate for the opposite party is unable to make either of them out. He has however contended on the authority of Kali Rai Vs. Tulsi Rai and Others, that this Court has no jurisdiction to interfere in revision with the later order of the trial Court. It was held in that case that an order refusing to add a party as defendant cannot be revised u/s 115, Civil P.C., but that in such a case the High Court may interfere u/s 107, Government of India Act, if there is a denial of the right of fair trial. The present case is distinguishable on the facts, and it is clearly a case where it can be confidently said that assuming that the Munsif had jurisdiction to cancel the order of 26th May 1938, he has acted with material irregularity in the exercise of that jurisdiction in cancelling that order on 23rd June for the reasons given by him--reasons which the learned advocate for the opposite party is entirely unable to support.

It is obvious that whether or not the bond was executed by defendant 1, on the footing that the property mortgaged was self acquired property, the question of whether it is not joint family property will have to be gone into, if not in the suit, then in the execution proceedings. The learned advocate for the opposite party has laid stress on the fact that other members of the joint family have not been impleaded. But it was not the duty of defendant 1 to implead them, though we need not be surprised at the failure of the plaintiffs to implead them if it was their case that the property was the self-acquired property of defendant 1.

I understand that after the order of 26th May adding defendant 2 as a party, an additional issue was actually framed. The papers before me do not show what that issue was, but it is suggested--and I have no reason to doubt the correctness of the suggestion--that this issue related to whether the mortgaged property was the self-acquired property of defendant 1 or the property of the joint family.

Defendant 2 having been added, and this issue having been framed, it was idle for the plaintiffs to object to the question put on that point by the defence, and the learned Munsif acted with material irregularity in disallowing the question and further, striking off the party. The result is that this application must be allowed with costs.

Hearing fee, one gold mohur. The trial Court will now proceed with the suit in due course of law, including the issue in question and defendant 2 as a party.