Kundan Singh vs Mohinder Kaur and Others

V.S. Aggarwal, J.—The present revision petition has been filed by Kundan Singh, hereinafter described as "the petitioner" directed against the order passed by the learned Civil Judge (Junior Division), Jalandhar, dated 3.3.1998. By virtue of the impugned order, learned trial Court dismissed the application filed by the petitioner under Order 1 Rule 10 of the CPC (for short "the Code").

The relevant facts are that Mohinder Kaur respondent-plaintiff had filed a suit against Bakshish Kaur and another for directing the revenue authorities for execution of mutation No. 2575 to be effected on the basis of a Sale deed dated 22.8.1983. in the copy of the plaint it has been mentioned that one Kundan Singh s/o Ishar Singh is in illegal possession of land in some area and reference has also been made to the sale deed dated 22.8.1983 referred to above. During the pendency of the said suit filed by respondent-plaintiff Mohinder Kaur, the present petitioner submitted an application under Order 1 Rule 10 of the Code. It was pointed out that respondent-plaintiff had earlier filed a suit for possession against Kundan Singh. The said suit was dismissed by Sh. S.S. Hundal, Sub Judge, 1st Class, Jalandhar and the appeal filed by the plaintiff-respondent was dismissed by the learned Add!. District Judge, Jalandhar. The petitioner contended that he is directly involved in the controversy between the parties. In the earlier suit between the petitioner and the respondent-plaintiff, a finding has already been arrived at pertaining to the said sale deed. Therefore, he claimed that petitioner should be impleaded as a party. The said application was contested by the respondent-plaintiff. The learned trial Court held that when the respondent-plaintiff does not want the petitioner to be impleaded as a party, the application is without any merit and accordingly it was dismissed. Aggrieved by the same, the present revision petition has been filed.

It is well settled that the Court on its own motion or on the application of the concerned person impleads another person as a party but it is necessary that the presence of the said party or person is necessary to determine the question of controversy between the parties. If it is not so, the application can well be rejected. This court in the case of Banarsi Dass v. Panna Lal and Ors. (1968) 70 P.L.R. 451 had considered the said controversy and opined that ordinarily plaintiff is opposed to adding of a person as party because he should not be impleaded as such. But even in the cited judgment learned Single Judge of this Court held that where the Court finds that the addition of new defendant is necessary to effectively adjudicate the matter in controversy between the parties, even without the consent of the plaintiff such a person can be added as a party. In paragraph 9 of the judgment, it has been held as under :-

"I would prefer to steer a middle course and draw the golden mean. As a rule the Court should not add a person as a defendant in a suit when the plaintiff is opposed to such addition. The reason is that the plaintiff is the dominos lits. He is the master of the suit. He cannot be compelled to fight against a person against whom he does not wish to fight and against whom he does not claim any relief. If opposition by the plaintiff to the addition of parties is to be disregarded as a rule, it would be putting a premium on the undesirable practice of third parties intruding to ventilate their own grievances, into a litigation commenced by one at his own expense against another. The word ''may'' in Sub-rule (2) imports a discretion. In exercising that direction, the Courts will invariably take into account the wishes of the plaintiff before adding a third person as a defendant to his suit. Only in exceptional cases, where the Court finds that the addition of the new defendant is absolutely necessary to enable it to adjudicate effectively and completely the; matter in controversy between the parties, will it add a person as a defendant without the consent of the plaintiff........"

It is abundantly clear from the relevant extract of the judgment reproduced above that the trial Court was in error in relying upon the said judgment and giving a finding that when the plaintiff-respondent is not interested in adding the petitioner as a party, he cannot be so drawn as a party to the suit.

On behalf of the petitioner, strong reliance was placed on the decision of this Court in the case of Surja and Anr. v. Ramji Lal and Ors. 1991 P.L.J. 241. Herein a suit for declaration and for restraining the defendants from interfering in their possession was filed. An application was filed for impleading certain person as defendants alleging that with respect to the suit land a decree has already been passed, it was held that in these circumstances in order to avoid multiplicity of proceedings the application should be allowed. In paragraph 4 of the judgment, this Court held as under :-

"If the petitioners have already obtained a decree in their favour against the present plaintiffs, then they are necessary/proper parties to the suit in order to avoid multiplicity of proceedings. Consequently, this revision petition succeeds. The impugned order is set aside and the application under Order 1 Rule 10 of the Code is allowed with no order as to costs. The parties are directed to appear in the trial Court on March 4, 1991......"

Supreme Court had considered this aspect in the case of Ramesh Hiranand Kundanand v. Municipal Corporation, Greater Bombay 1992(1) RR R 515 and observed in paragraph 14 of the judgment as under :-

"It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be desirable consequence of the rule rather than its main objective. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness; it is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which, makes it necessary to make a person a party to an action is so that he should be. bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest of the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action............"

More recently this Court in the case of Jagdish Chand Sharma v. Municipal Committee, Hassanpur, 1998(2) RCR 346, also concluded that if the right of the applicant has already been determined in his favour in the previous proceedings, any order passed in subsequent proceedings with respect to the said land may affect his right. In that event, he should be inn- pleaded as a party.

The facts of the case are very close to the, controversy in hand, as men- tioned above, the basic rule would remain the same that the presence of the party should be necessary for completely adjudicating the rights of the parties.

In the present case in hand, the petitioner has drawn the attention of this Court towards the judgment of the learned Civil Judge. That was a controversy between the petitioner and the plaintiff-respondent. The plaintiff-respondent had filed a civil suit for possession with respect to the land and the sale deed which is now being referred to by the respondent-plaintiff was also mentioned. One of the issue framed was if sale deed is a forged or fabricated document. It was held that it was not a genuine document. The appeal filed against the said judgment and the decree of the Civil Judge was dismissed by the learned Addl. District Judge. The Court was being informed that perhaps a Second Appeal is pending in this Court.

The fact remains that there has been a controversy raised with respect to the said sale deed which now the respondent-plaintiff relies and refers in the suit filed by her. Any adjudication may have adverse affect on the petitioner. The presence of the petitioner, therefore, will help in adjudicating the right effectively and certainly not complicate the same. Therefore, the petitioner, in fact, would be a necessary party. His presence is necessary to effectively decide the rights of the parties and adjudicate upon it.

For these reasons, the impugned order is set aside and revision petition is accepted. The petitioner is directed to be arrayed as a defendant in the suit.