H. Sitaramaya vs M. Ramappaya (deceased) and Others

Srinivasa Aiyangar, J.—This is an application by the plaintiff to revise the order of the Subordinate Judge of Mangalore, whereby he ordered

that certain persons should be added as parties defendants to a suit for partition instituted by the plaintiff against his undivided father and brother

and certain other persons who, he states, are in possession of or claim title to family properties. The persons now ordered to be made parties are

the brother''s sons of the father and an assignee of their share. The assignee had previous to the institution of the present suit himself sued for

partition of the properties which belonged in common to the plaintiff''s branch and his uncle''s branch and had obtained a preliminary decree for

partition. To that suit the present plaintiff, his father and brother were parties and in that suit there has been a decision as to what the family

properties belonging in common to both the branches are, and a direction to divide those properties into two shares, one being allotted to the

plaintiff''s branch and the other to his uncle''s branch, so that the assignee may get what he is entitled to out of the share of the uncle''s branch. The

present suit is for a partition, inter se among the members of the plaintiff''s branch, of the property which will be allotted to them in the division

under the previous decree (A schedule and some items in C Schedule) and other properties which are said to belong to the plaintiff''s branch alone

(Schedule B and the other items in C Schedule). Some of the defendants, not the father or the brother, objected that the suit was defective as the

uncle''s song of the plaintiff, from whom the plaintiff''s branch had become divided as above said, are necessary parties to a partition inter se among

the members of the plaintiff''s branch. Issues were raised on this plea (as if this was a subject of issues for trial in the suit) and other issues on the

merits. The whole trial was concluded in the course of which a large number of witnesses were examined and a large number of documents were

filed and after this elaborate trial on the merits, the learned Judge in the Court below proceeded to dispose of the issues as to parties in the manner

stated above and has adjourned the suit. On the merits he finds himself unable to pronounce judgment without the examination of the 1st defendant.

Now, the first question is whether the brother''s sons and their assignee are persons ""who ought to have been joined, or whose presence is

necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit,"" within the meaning of

Order I, Rule 10. This rule is a corollary to Rule 9 and must be construed along with it. The plaintiff here seeks no relief against the members of his

uncle''s branch or their assignee and if they are added, it is difficult to see what allegations can make so as to justify his adding them as parties. All

questions between his branch and his uncle''s branch in respect of all family properties in which both are interested have presumably been settled in

the previous suit and if they have not been, must be settled in that suit. Though an actual division by metes and bounds has not yet been made of

the A Schedule properties between the plaintiff''s branch and the'' uncle''s branch, that does not make it necessary to make the members of the

uncle''s branch parties to the present Suit; all that will be required is to adjudicate on the rights of the parties to the present suit and wait for a

division by metes and bounds till the final decree in the previous suit. As regards B Schedule properties and those items of C Schedule in which the

plaintiff says his branch alone is interested, it is improper to make the members of the uncle''s branch parties, simply because it is convenient for a

particular defendant or particular defendants who are in possession of those properties to have their title established, if possible, not merely against

the plaintiff, but against strangers who may possibly make a claim to it thereafter. If the members of the uncle''s branch had any claim to these

properties, they ought to have as between themselves and the plaintiff''s branch put forward that claim in the previous suit. ""Question involved in the

suit"" in the last clause of Rule 10 does not mean all claims which may possibly be put forward by anybody to the property involved in the suit. I

cannot do better than quote a passage from the judgment of Lord Coleridge, C.J. in Norris V. Beazley (1877) 2 C.P.D. 80 Referring to the words

of the corresponding English rule, His Lordship observes: �These words plainly imply that the defendant to be added must be a defendant

against whom the plaintiff has some cause of complaint, which ought to be determined in the action, and that it was never intended to apply where

the person to be added as defendant is a person against whom the plaintiff has no claim, and does not desire to prosecute any. "" If such a broad

construction as is placed by the Subordinate Judge in the present case is adopted, as pointed out lower down in the same page, ""the provisions of

the rule may be made use of in a manner exceedingly harassing to plaintiffs, by forcing them to include in their actions persons against whom they

do not seek to proceed and to mix up their rights, as against one person with questions of a highly con plicated nature arising between themselves

and others. "" That was a case of personal action, and in suits for recovery of property it may be necessary or proper sometimes to add persons as

party defendants against whom the plaintiff may not ask for any particular relief; but putting the most liberal construction on the words of the rule, I

still cannot see any need for the presence of persons who according to the plaintiff have no interest whatsoever in the suit properties. If the plaintiff

does not prove his title or the title of his branch of the family to the whole or a share or portion of the properties in the hands of persons who are

strangers to the family, his suit pro tento must be dismissed; that is not because of any defect in the constitution of the suit in respect of parties, but

of want of title.

But then Mr. Balakrishna Rao urges that the order is only an interlocutory order, that any non compliance with the order cannot entail the

dismissal of the suit-in fact the order is futile-and if the lower Court dismisses the suit the plaintiff can appeal and challenge this order and that,

therefore, this Court has not jurisdiction to interfere with it or at any rate should not interfere at this stage. I am not so sure as Mr. Balakrishna Rao

that the Court cannot dismiss the suit for noncompliance with the order. The Court no doubt in cases of defective constitution of suits in respect of

parties may either proceed to decide the suit under Rule 9 or direct the addition of parties under Rule 10; but if it elects to proceed under Rule 10

and directs the addition of parties, the plaintiff must obey the order of the Court and cannot proceed with the suit as originally constituted. But if the

argument for the respondent is sound, the sooner such a futile order is vacated the better, for it, must be observed, the plaintiff never agreed to

make any but the original parties defendants.

It is true the plaintiff, if his suit is dismissed, can appeal, if he takes the risk of disobeying the order of the Court; he has also the privilege of

complying with the order, add his uncle''s sons and their assignee parties, incur the expense of adding them and serving them, and if they insist, of

having a trial de novo of the suit on the merits; if in the end the plaintiff does not get any relief or the relief which he wants, he may appeal from the

decree and challenge the wrong order. The added parties may deny any interest in the suit properties, and ask they should be struck out of the

record and their costs paid. It must be remembered that the persons sought to be added have not applied and even the defendants, who raise the

plea of non-joinder, do not say that the persons whom they want to be added have any interest in the properties in their hands; on the other hand,

they claim the property as their own. If I am right in my view of the question on the merits, I think the plaintiff is entitled to be relieved from this

state of embarrassment and this Court has power to interfere at this stage, as other wise manifest injustice may be done to the plaintiff; as observed

by Lord Justice Lindley (as he then was), the question is not one of exercise of discretion by the lower Court, but of want of jurisdiction. [Moser v.

Marsden (1892) 1 Ch. 487

I desire also to point out that questions as to misjoinder and non-joinder of parties should be disposed of at the earliest opportunity. They are

not really issues for trial in the suit and should not be left to be determined till the conclusion of the trial.

I, therefore, discharge the order of the lower Court. The respondent must pay the costs of the petitioner here.