Kazim Ali Khan vs Smt. Basheerunnisa Begum and Another

Eswara Prasad, J.—The revision is directed against an order of the VII Asst. Judge, City Civil Court, Hyderabad, impleading the first respondent as defendant No. 9 in O.S. No. 3306/84.

The suit was filed by the petitioner against the 2nd respondent and others for dissolution of partnership and for rendition of accounts of the firm, ''M/s. Sridevi Colonisers''. The first respondent filed I.A. No. 315/88 for impleading her as a defendant in the suit claiming that she is a shareholder of the lands of an extent of Ac. 78-00, forming part of the lands dealt with by the firm. The petition was resisted by the petitioner on the ground that the first respondent is neither a necessary, nor a proper party to the suit, as she is not a partner of the firm and also on the ground that her title to a part of the property of the firm cannot be adjudicated upon in the suit filed for dissolution of partnership and for rendition of accounts. The Court below allowed the petition and the first respondent was added as defendant No. 9 in the suit.

The learned Counsel for the petitioner submitted that the order of the Court below is illegal and that the learned Judge ought not to have impleaded the first respondent as a party to the suit as she is neither a necessary nor a proper party to the suit and that her presence is not necessary for a full and effective adjudication of the matters in dispute. He contended that the suit for dissolution of partnership and for rendition of accounts, cannot be converted into a suit for declaration of title, and that the provisions of Order 1 Rule 10 C.P.C. are not meant for such purposes. He argued that persons, who are not partners in the firm, cannot be impleaded as parties to the suit. The learned Counsel for the first respondent contended that the first respondent claimed a part of the suit land as her Matruka property and that since her lands are also being dealt with by the firm, she is entitled to claim the amounts realised from the sale of her property and hence she must be permitted to participate in the suit proceedings and claim the moneys realised from the sale of the lands.

Admittedly, the first respondent is not a partner in the suit firm. She claims ownership to a part of the property owned by the firm. The suit is instituted for dissolution of the partnership and for rendition of accounts. The learned Counsel for the petitioner relied on a decision of Punjab and Haryana High Court reported in State Bank of Patiala v Amartnath, 1985 (87) ComP Cas 628 wherein it was held that a creditor of a firm, whose goods were hypothecated to the creditor, is not entitled to become a defendant in the litigation between the partners of the firm in a suit filed for dissolution of partnership and rendition of accounts. He further relied on Annan v. Mahadeo and Ors., AIR 1954 Ajm 10 wherein, an ex-partner was not permitted to be impleaded as a partner to the suit for dissolution of partnership and for rendition of accounts on the ground that an enquiry into the ex-partner''s claims would make the enquiry unnecessarily wide. Similarly, the Calcutta High Court did not permit a person who is not a partner in the firm to be impleaded as a party to the suit on the mere apprehension that, at some future time, the plaintiff in the suit may attempt to execute the decree against him on the basis of partnership, as has been held in Sreemutty v. Bhadarmull, 40 C.W.N. 677. He also contended that in a suit between partners for dissolution of partnership and rendition of accounts, a creditor of the firm, not being a necessary party, cannot be added as a defendant and relied on In Re: Canara Bank, Siddharth Kumar Modi and others, in support of the said contention. The learned Counsel relied on several decisions of various High Courts and argued that the first respondent ought not to have been impleaded as a party to the suit.

The learned Counsel for the first respondent contended that the expression ''settle all the questions involved in the suit'' used in Order 1 Rule 10 (2) CPC is susceptible of a liberal and wide interpretation so as to take in a final adjudication of all the questions pertaining to the subject-matter thereof, and that in order to avoid conflict of decisions on the same questions and at the same time, finally and effectively put an end to the litigation in respect of them, the first respondent was properly impleaded. He contended that he Court below exercised its judicious discretion properly and the order needs no interference by this Court. In support of the said proposition he relied on Khaja Abdul Khader Vs. Mahabub Saheb and Others, wherein a Division Bench of this Court held that a person claiming to be the owner of the property in question in a suit must be considered to be a necessary and proper party, without whose presence the questions cannot be finally and effectively adjudicated upon. It was held that the crucial test for the addition or otherwise of a particular party as defendant or plaintiff is, whether the presence of such party is necessary or at least proper, without whom there can be no effective and final adjudication of all issues involved in the suit with regard to the same subject-matter and that the intendment and object of the provision appears to adopt a liberal construction to enable the Court to determine all the questions relating to the subject matter of the suit arising not only between the parties to the suit once and for all in the presence of all those parties whose presence is necessary or proper for an effective and final adjudication. To the same effect is the decision of the Supreme Court in Razia Begum Vs. Sahebzadi Anwar Begum and Others, wherein the Supreme Court held that judicial discretion vested in the Courts under Order 1 Rule 10 CPC has to be exercised in view of all the facts and circumstances of a particular case and that in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinct from a commercial interest in the subject-matter of the litigation. It was further held that in a suitable case where the Court is of the opinion that by adding that party, it would be in a better position effectively and completely to adjudicate upon the controversy.

The first respondent claims to be having interest in a part of the property belonging to the suit firm. In effect, she claims interest in immovable property. A distinction between interest in immovable properties and commercial interest should be drawn in the case of a suit for dissolution of partnership and rendition of accounts. The decisions relied on by the learned Counsel for the petitioner dealt with cases wherein the party seeking to be impleaded as a party to the suit claims commercial interest in the partnership firm. But in the present case, the first respondent claims interest in the immovable property belonging to the suit firm and hence the question of title to immovable property is involved in the present suit. It is brought to the notice of this Court that the first respondent filed a suit for partition in which one of the partners to the suit firm is a party. In that view of the matter, the first respondent is a proper party to the suit, and the lower court was correct in impleading her as a defendant in the suit. The decision of this court in Khaja Abdul''s Case (5 supra) is an authority for the proposition that to enable the Court to determine all questions relating to the subject-matter of the suit, arising not only between the parties to the suit once and for all in the presence of all those parties whose presence is necessary for a proper and final adjudication of the matter. The order of the Court below was proper and needs no interference. The revision is accordingly dismissed. No order as to costs.