Gulzar Singh and Others vs Smt. Chhinder Pal Kaur alias Ranjit Kaur and Others

A.P. Chowdhri, J.—This revision petition is directed against order dated February 8, 1991, of Subordinate Judge 1st Class, Moga, allowing an application under Order 1 Rule 10 (2) of the CPC made by respondents 2 to 6 and impreasing them as defendants.

Briefly stated, the material facts are that one But a :Singh was the owner of the land in suit besides some other land. On May 27, 1988, he entered into an agreement of sale of the land in suit with one Kulwant Singh for Rs. 1,61,000/- odd. Rs. 60,000/- were received as earnest money under the agreement. The sale deed was to be executed in favour of the promisee Kulwant Singh or his nominees. In pursuance of the agreement, Buta Singh received the balance amount of Rs. 1,01,000/- odd and executed sale deed in favour of the nominees of Kulwant Singh, namely, Gulzar Singh etc., petitioners herein, on November 2, 1988. Prior to the execution of the sale deed, Buta Singh suffered a consent decree with regard to the land in suit together with some other land in favour of his wife Smt. Chhinder Pal Kaur respondent No. 1, on October 6, 1988. On the basis of the decree, mutation'' was sanctioned in the revenue record on November 21, 1988. On the basis of the said entries, Chhinder Pal Kaur executed three sale deeds. The first two sale deeds dated February 15, 1989 and May 11, 1989, were in favour of Balwinder Singh etc., respondents 2 to 5, and the third sale deed dated May 2, 1990, was in favour of Tirloki Nath respondent No. 6. Gulzar Singh etc. vendees under the original sale dated November 2, 1988 instituted a suit against Chhinder Pal Kaur and her Husband Buta Singh for a declaration that the decree dated October 6, 1988, passed in favour of Chhinder Pal Kaur against Buta Singh was null and void and did not affect the plaintiffs''rights and the plaintiffs were the owners in possession of the land in dispute. Buta Singh was proceeded ex pane and Chhinder Pal Kaur appeared in the suit and made a statement on February 20, 1990, admitting the plaintiffs'' claim. Buta Singh later died It was at that stage that two applications were made under Order 1 Rule 10 (2) of the Code of Civil Procedure, one by Balwinder Singh etc. respondents 2 to 5, and the second by Tirloki Nath, subsequent vendee from Chhinder Pal Kaur, to be impleaded as defendants in the suit instituted by the plaintiffs against Chhinder Pal Kaur and her husband Buta Singh. The applications were resisted by the plaintiffs. By the impugned order the said applications were allowed by the Subordinate Judge namely on the ground that the controversy in the suit was with regard to the ownership of the land in dispute and it was necessary to implead the applicants in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit Aggrieved by the order, the plaintiffs have preferred this revision.

The contention of Mr. San jay Majithia, learned counsel for the petitioner, is that the applicants respondents 2 to 6, are neither necessary nor proper parties to the suit instituted by plaintiffs. He further contended that the plaintiffs being domlnus litus cannot be com- pelled to implead persons against whom they sought no relief. It was pointed out that the sale dated February 15, 1989, related to some other land with which the plaintiffs were not concerned and that the order in question was patently illegal as impleading the applicants changed the scope and nature of the controversy raised by, the plaintiffs in the suit.

Mr. Sudhir Aggarwal, learned counsel for contesting respondents 2 to 6, on the other hand, submitted that the respondents were necessary for the determination of the real matter in dispute. Learned '' counsel explaind that inter alia the plaintiffs sought a declaration that they were owners in possession of the land in dispute. The applicants claimed to have acquired title to the land on the basis of the sale deeds executed by Chhinder Pal Kaur who was owner on the basis of consent decree suffered by the original owner Buta Singh. For a complete and effectual decision of said controversy it was necessary that respondents 2 to 6, be impleaded and thus the order in question called for no interference.

I have given my careful consideration to the respective submissions of the learned counsel for both .the parties. -

At the outest .it may be stated that admittedly respondents, 2 to 6 have instituted a suit in which they have impleaded not .only. Chhinder Pal Kaur but also the present plaintiff- That suit is pending, Order 1 Rule 10(2) of the CPC which empowers the Court to add or strike out the parties, lays down as under :-

"(2) Court; may Strike out or add parties.-

The Court may at any stage of the proceedings, either upon , or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out and that the name of-any person , who ought to have been joined, whether a plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."

A bare reading of the above provision brings out the following features:-

(i) The power to add or strike out parties may be exercised by the Court at any stage, of ,the proceedings.

(ii) The power can be exercised, on an application made by either party or suo motu by the Court. . ...

(iii) The Court has ample power to direct the joining of parties who may be necessary parties or proper parties. .

(iv) The question whether a certain party is a necessary or, a proper party is to be considered in order to enable ,the Court effectually and completely to adjudicate upon and settle all the questions in the suit.

It is settled law that a necessary party is one without whom no order can be made effectively. A proper party, on the other hand, is one in whose absence an effective order can be made but whose presence is necessary for complete and final decision of the question involved in the suit. (See Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar, The concluding part of Order 1 Rule 10 (2), quoted above; which has been underlined, has been subject matter of conflict of judicial opinion in various High Courts, According to one view, the said expression is to be narrowly-construed, ''so as to mean that the questions involved in the-suit, should be taken to mean the questions arising between the parties to. the suit is framed According to the other view, the said expression is to be .construed broadly to ''mean not only the disputes between the parties; to the original suit but also disputes which relates to, the, subject matter,. , of the suit and which may arise between the parties to the, original suit as also third parties. In the facts and, circumstances of the present case, I do not propose to examine the question as to which of the two views should be preferred because it is possible to dispose of the revision petition on other grounds. Suffice it to say that the question came up for consideration in. Kaka Singh v. Rohi Singh A. I. R. 1975 P & H 30 R S. Narula, C. J. (as he then was) referred to several earlier decisions of this court especially Banarsi Dass Durga Prashad Vs. Panna Lal Ram Richhpal Oswal and Others, , and observed that this Court had taken the narrower view of the expression. This approach is consistent with the view that I have formed in the instant revision petition. Order 1 Rule 3 relating to the persons who may be joined as defendants furnishes a key to understanding the problem as to who can be possibly necessary or proper parties. The relevant provision lays down as under :-.

"3. Who may be joined as defendants :-All persons may be joined in one suit as defendants where-

(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and

(a) if separate suits were brought against such persons, any common question of law or fact would arise."

Reverting to the facts of the case under consideration it bears repetition that the suit filed by the plaintiffs was against Chhinder Pal Kaur and her husband challenging the consent decree suffered by Buta Singh in favour of his wife Chhinder Pal Kaur and. in so far as that decree is concerned, the applicants had no direct connection . The other part of the relief sought by the plaintiffs is a declaration of their title to the land in question. A declaration of title in these facts and circumstances gives rise to only a judgment in personam. It is not a judgment in rem within the meaning of Section 41 of the Evidence Act, in that it is not rendered in exercise of probate matrimonial admiraly or insolvency jurisdiction. In other words, the decree of declaration sought by the plaintiffs will be binding only on the parties impleaded in the suit by the plaintiffs. Impleading respondents 2 to 6 will raise questions which are foreign to the controversy in the suit as framed by the plaintiffs. In the facts and circumstances of the present case, this cannot be permitted. I am supported in taking this view by the observations in Ramesh Chandra Vs. Mukhtyar Singh and Others, . Importers and Manufacturers Ltd. Vs. Pheroze Framroze Taraporewala and Others, , and Bindru v. Sada Ram AIR 1960 J&K 67. It may well be argued that eventually the dispute relates to a certain property and" it will have to be decided between the plaintiffs on the one hand and respondents 2 to 6 on the other hand. That may be so, but the test of eventual interest being the crucial test came up for consideration in Deputy Commr., Hardoi, in charge Court of Wards, Bharawan Estate Vs. Rama Krishna Narain and Others, , and it was "held that'' the said test could not be applied for determining the question whether a certain party was necessary or proper party to be impleaded in a suit.

For the foregoing reasons, it must be held that the learned trial Court exercised its jurisdiction illegally and. with material irregularity in allowing :the application under Order 1 Rule 10(2) of the Code of Civil Procedure. This revision petition is , therefore allowed and the order in question set aside. It follows that the names of respondents 2 to 6 shall stand deleted that the trial Court shall proceed to dispose of the suit according to law. In the facts of the case, there will be no order as to costs.