Jagdish Lal Sharma vs Municipal Committee and Others

Swantanter Kumar, J.—In a suit filed by Shri Nanak Chand against Municipal Committee, Hassanpur and another for permanent injunction, applicant-petitioner Jagdish Chand Sharma filed an application under Order 1 Rule 10 of the CPC for being impleaded as a defendant. This application was dismissed by the order dated 19.12.1997 passed by the learned Civil judge (Junior Division) Palwal. Being aggrieved from this order, the applicant Jagdish Chand Sharma has filed the present revision petition.

The present suit has been filed by the plaintiff against the defendants restraining them from getting the building of the temple of Lord Shiva demolished and from cutting the trees from the suit property, which has been described as ABC in the site plan appended with the plaint. The suit is being contested by the defendants on the plea that plaintiff has nothing to do with the land in question and the defendant-Committee is the owner in possession of Khasra No. 505 where the alleged property is stated to be located. In fact, it has been stated in the written statement that the suit property is a part of Khasra No. 505 and is owned and possessed by the Municipal Committee. The other allegations in the written statement have been disputed. Even existence of the alleged temple is denied. When the suit was at the initial stage the present application was filed by present petitioner Jagdish Chand Sharma for impleadment.

The basic facts stated in the application are that in fact Jagdish Chand is in occupation of land measuring 4 Biswas comprised by Khasra No. 1159 min. which has now been re-numbered as Khasra No. 505. Gram Panchayat Hassanpur, Tehsil Palwal had filed a suit against the petitioner previously for declaration and possession. The suit was based on the premises that the Panchayat was the owner in possession of the land in question and that the defendant in that suit which included the applicant had taken unauthorised possession of the suit land and had also raised unauthorised construction on it. This suit of the Gram Panchayat was decreed against the applicant.

Aggrieved by the order the applicant had preferred an appeal, being appeal No. 38/13 of 1971 titled as Jagdish Chand Versus Gram Panchayat and another. In appeal, learned District Judge, Gurgaon, set aside the judgment and decree of the trial Court and allowed the appeal preferred by the applicant. It was duly noticed in the said judgment that Khasra No. 1159 min was the subject matter of the dispute.

During the course of arguments in this revision petition, it has not been disputed before me that Khasra No. 1159 has been re-numbered as 505. The fact whether there is a temple on the disputed property; plaintiff in the present suit has the right to remain in possession; if the plaintiff is entitled to the relief prayed for; if in that land or in the adjacent land, applicant Jagdish Chand has a right to remain in possession and whether he is in possession as alleged by him in the previous suit, which was dismissed in his favour are the questions need to be gone into during the trial.

At this stage, the Court is concerned only with the fact whether Jagdish Chand Sharma, applicant is a proper and necessary party to these proceedings. In order to adjudge this question, the Court has to examine whether presence of Jagdish Chand Sharma would be necessary before the Court to effectively and completely adjudicate the issues before it and to give a final decree in regard to the subject matter of the suit. Further more, whether the findings in the present suit are likely to effect any of the interest of the applicant.

As is clear from the above noted facts that in the previous litigation the same land or a major part thereof was subject matter of the suit where Jagdish Chand Sharma had alleged his possession, was decided in his favour though the present suit is one for injunction but question of possession and title of the same land and part thereof would have to be decided by the trial Court. In order words, there are vital claim with regards to the same subject matter and even the parties to some extent would be common in each case, even if each one of them was called upon to bring an independent action. The underlying feature of procedural law must be construed so as to achieve ends of justice, expeditious and final disposal in regard to the subject matter by preventing the parties to raise unnecessary dispute in various courts. At this stage, it may be appropriate to refer to the case of Krishan Lal and Another Vs. Sudesh Kumari and Others, and Jaspal Kaur Vs. Hazara Singh and Another, both decided on .6.2.1998. In these cases after discussing the principles governing the controversy in issue in some details held as under:-

"The CPC provides as to how a suit has to be instituted and how would it end. The Code provides thread of continuity, which would regulate various stages of the suit. In other words, the intention of the legislation must and has to be gathered from the various provisions of the Code read collectively and in conjunction with each other. Whereas Order 1 Rules 1 and 3 of the Code provides who are the persons who could be joined as plaintiffs and/or defendants Rule 10 gives power to the Court to add parties to direct addition and impleadment of parties and Rule 8-A gives right to a party to approach the Court for being impleaded as a party, if the applicant has an interest in any question which directly and substantially arise in the suit. The provisions regulating impleadment of necessary and proper parties, whose presence is necessary before the Court for proper and final adjudication must be construed in a wider perspective as the provisions of Order 2 Rule 1 of the Code clearly indicate that every suit, as for as practicable, be framed so as to afford grounds for final decision upon the subjects in disputes and to prevent further litigation concerning them. To hold that avoidance of multiplicity of litigation in regard to the same subject matter is not even relevant factor while considering the application for impleadment, to my mind, would be an approach not in line with the spirit of the procedural law.

In order to have a pervasive and baroque approach to the provisions of the Code which would be also in consonance with the scheme of the Code, would be to read the provisions of Order 1 and other effecting provisions of the Code collectively, rather than to read and construe Order 1 Rule 10 of the Code in abstract or isolation. Interpretation of construction of procedural laws or provisions related thereto must be read to achieve the ends of justice which is an indispensable object of basic rule of law With the modern development in all spheres of life the Courts must mould the procedural laws to further the cause of expeditious disposal and determination of all questions in one proceedings, if permissible in law, rather than to direct the parties to create multiplicity of litigation.

Without being innovative and primarily on reiteration of the settled principles and in a derivative manner. It is possible to indicate certain factors which may be considered by the Court while determining such a question:-

(a) Whether the applicant is a necessary and proper party keeping in view the facts and circumstances of the case?

(b) Whether presence of such a party before the Court is necessary for effectively and completely adjudicating the matter and granting complete and effective decree to the party entitled to?

(c) Whether such a party interested would be directly effected as a result of culmination of such persons into decree or it would only be effected remotely, indirectly and distantly?

In addition to above, where the Court considers the presence of a party necessary for proper and complete adjudication, then it may well be considered relevant whether non-impleadment of such a party would result in avoidable multiplicity of litigation, then effort should be to implead as party rather than to force the party to go to a fresh litigation.

The above principles are not exhaustive but are merely indicative that may be considered by the Court in addition to such consideration, which may be appropriately considered by the Court keeping in view the facts and circumstances of a given case. The legislative intent to provide an effective protection to a party who may be affected by the questions to be determined by a court in a suit or proceedings and to have complete adjudication is clear from the introduction of Rule 10-A in Order 1 of the CPC Amendment Act, 1976".

Learned counsel for the respondents has relied upon the judgment of this Court in the case of Hazura Singh Vs. Sukhdev Singh and Another, and Vinay Mittar Vs. Kanta Bhagat and Others, . The thrust of the submissions is that the presence of the applicant is necessary before the Court for giving effective decision in the present case. Further it is stated that a party need not to be impleaded as a party merely because it would avoid multiplicity of litigation. The case of Hazura Singh has no application to the facts of the present case because in that case no relief was claimed against the applicant while in the present case any finding is bound to effect the interest and right of the applicant in whose favour there is an order of competent court in existence in regard to the same land. The right of the applicant is not a mere procedural right; but the substantive right likely to be adversely affected, if any finding is given at his back.

Learned counsel for the petitioner has relied upon the judgment of this Court rendered in the case of Harcharan v. Financial Commissioner, Revenue Punjab 1996 (3) P.L.R. 427.

The right of the present applicant has been determined favorably in the previous proceedings and thus any order passed in regard to the same land is bound to effect prejudicially the interest of the applicant in the present suit. The applicant would certainly be a necessary or at least a proper party whose presence would help the Court to completely and effectively adjudicate the respective contentions raises in regard to the same subject matter. Applying the above enunciated principles,, the applicant needs to be impleaded as defendant in the suit. This is primarily for the reasons that any injunction sought by the plaintiff in the present suit would obviously result in interference of the allegedly existent right of the applicant.

For the reasons aforestated, this revision petition is allowed. The order dated 19.12.1997 is set aside. The application filed by Jagdish Chand Sharma, under Order 1 Rule 10 C.P.C. is allowed. He is directed to be impleaded as defendant in the suit. Upon impleadment, the trial Court shall proceed with the suit in accordance with law.