Harcharan Singh vs S. Bhagat Singh and Others

M.Y. Kawoosa, J.—Heard learned counsel for the parties.

This Civil Revision Petition has been filed against the order dated 1-6-1998 passed by the learned Musniff, Kathua, whereby he has rejected

the application of the applicant for impleading him as party-defendant in the suit. Facts barely needed for the disposal of the Revision Petition are

that plaintiff is the son of defendant-1, who has filed the suit against his father claiming two reliefs. 1) Relief of declaration to the effect that the

document 'Farkhatti' alleged to be executed by defendant No. 1 be declared as cancelled, and 2) defendants be restrained from changing and

alienating the existing property. It may be mentioned here that respondents 5 and 6 are co-sharers and other respondents are strangers. Defendant

No. 1 after executing the 'Farkhatti' has executed power of attorney in favour of other respondents. Applicant is also the son of defendant No. 1,

who has alleged that he is in possession of chunk of land in Khasra No. 19, so no decree ""can be passed against him unless he is made a party in

the suit. It is a fact that the applicant is also a co-sharer.

Learned counsel for the petitioner has urged before me that as he is in possession of land under Khasra No. 19, so no final adjudication can be

made with regard to the suit property without impleading him as party. Across the table learned counsel for the respondent No. 5 has made a

categorical statement that he seeks no relief from the applicant, so it cannot be thrust upon the plaintiff to add him as a party.

I have given my thoughtful consideration to the facts stated before me. It is a fact that so far as the first relief about cancellation of 'Farkhatti' is

concerned, it is executed by respondent/defendant No. 1, so the applicant has no concern at all with it, the relief is claimed only against the person,

who has executed that document.

So far as the second relief is concerned, plaintiff in the suit has prayed that the defendants be restrained from interfering or alienating or changing

the position of the suit property. Plaintiff is respondent No. 5, who is categorical in saying that the petitioner is not involved in the litigation, he is a

co-sharer, but he has no concern with the suit property, for which plaintiff claims relief from other defendants. Relevant provision, which deals with

the subject is Order 1, Rule 10, Sub-rule (2) of the Code of Civil Procedure. It reads 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 as plaintiff or defendant, or whose presence before the Court

may be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit, be

added.

CPC is generally not initial jurisdiction of Court, but is Judicial discretion of Court. Court can at any time either suo motu or on the application of

anybody add any person as party, if the Court thinks fit in the situation of the case. Where the Court is satisfied that without adding a person as

party. Court cannot effectively and completely adjudicate upon and settle all the issues involved in the case. Court can add a person as party. But

that party must have direct interest in the litigation, not commercial one. Secondly, normally the Court should not add a person as defendant, when

the plaintiff is opposed to such addition, the reason is that the plaintiff is thus dominus litus, he is the best Judge of his own interest and it is to be left

to his choice that who should be opponent and from whom the claims relief. In the present case before us, plaintiff has categorically refused to

agree to add the applicant as party on the ground that plaintiff does not want any relief from the applicant. Secondly, he wants a declaration that

'Farkhatti' has been executed by respondent-defendant No. 1, so relief is only against him. Similarly relief of injunction is also against other

defendants, but not claimed against respondent-1. If the relief is not claimed against the applicant, decree even if passed will not be effective

against him. Here I think the view taken by the trial Court does not suffer from any infirmity and no exception can be taken against that view. See

Lakshmi Narain v. District Judge 1992 CCC 277 : Lakshmi Narain Vs. The District Judge, Fatehpur and others, and Razia Begum Vs. Sahebzadi

Anwar Begum and Others, .

For these reasons, therefore, 1 see no infirmity in the order of the court below. This Revision Petition is dismissed along with connected C. M.

P.