Mohan Lal vs Kailash Rani

Sat Paul Bangarh, J.—The respondent No. 1, herein, filed civil suit against the respondent No. 2, that was decreed in favour of the former against the latter on 06.12.2010. The judgment and decree of the latter date have been assailed by the respondent No. 2 before the 1st Appellate Court. During the pendency of the appeal before the 1st Appellate Court, the petitioners, herein, moved application under Order 1 Rule 10 of the CPC for impleading them, as respondents. In the application, it was averred that respondent No. 2 had taken a specific stand that the suit of the respondent No. 1 was bad for misjoinder and non-joinder of necessary parties, because as per will dated 10.01.1979 executed by Chanan Dass, the suit property was bequeathed in favour of Yash Pal, Mohan Lal and Pawan Kumar, out of whom Yash Pal has expired.

Issue No. 6, regarding mis-joinder and non-joinder of necessary parties was also framed in the suit. So, it is prayed by the petitioners, herein, that they be impleaded as respondents in the appeal.

This application was opposed by the respondent No. 1, herein, by filing written reply, thereto, averring, therein, that the petitioners are neither necessary nor proper parties and no relief has been claimed against them. The controversy regarding alleged Will shall be separately decided. Consequently, prayer for dismissal of application, was, thus, made.

After hearing both the sides, the 1st Appellate Court below vide order dated 16.08.2013 (Annexure P-1) dismissed the application of the petitioners, that was filed by them under Order 1 Rule 10 CPC for their impleadment, as respondents in the appeal.

Aggrieved against the same, the petitioners, herein, have come up in this revision with prayer for acceptance, thereof, and for allowing their application under Order I Rule 10 CPC for their impleadment, as respondents in the appeal, that was dismissed by the 1st Appellate Court.

Learned counsel for the petitioners contended that the latter are necessary parties and their application was wrongly dismissed.

Thoughtful consideration has been given to the contentions raised by learned counsel for the petitioner.

It may be mentioned here that a specific objection was taken by respondent No. 2 in his written statement, that the suit is bad for non-joinder of the petitioners, as defendants in the suit. It is the admitted case of the petitioners, that the issue to this effect was framed by the trial Court, but that issue did not find favour with it and trial Court decreed the suit in favour of respondent No. 1, obviously by coming to the conclusion that the present petitioners were not necessary defendants in the suit and due to their non-impleadment, the suit could not be dismissed.

The 1st Appellate Court is already seized of the matter in the 1st appeal and this point obviously shall be decided by the 1st Appellate Court and even the suit of the defendant No. 1 can be dismissed, by the 1st Appellate Court, if it comes to the conclusion that necessary and proper parties have not been added, as defendants in the suit. So, respondent No. 1 cannot be compelled to implead the petitioners against whom she does not wish to fight and against whom she does not claim any relief.

It has been held by this Court in 1993 (1) RCR (Civil) 387; that the Court should not add a person, as defendant in the suit when the plaintiff is opposed to such addition.

Similar view was taken by this Court in Kamla Devi and Others Vs. Surinder Kumar and Others, wherein, it was held that the petitioners may file separate suit for declaration of title, but they are not necessary party in the suit for ejectment of tenant.

Learned counsel for the petitioners placed reliance upon Bhagwan Dass v. Managing Director of H.R. Hindu High School, Hissar 1998 (1) RCR (Civil) 557; passed by this Court, wherein, it was held that when a party has direct interest in the litigation, he cannot be prevented from coming on record to safeguard his interest and application for impleading as party cannot be rejected on the ground that no relief has been claimed against the petitioner.

This judgment is inconsequential to the petitioners, as the trial Court has already concluded that the present petitioners are not necessary defendants.

Learned counsel for the petitioners also placed reliance upon Sohan Lal Vs. Suraj Bhan, passed by this Court, wherein, it was held that it is true that the plaintiff is the master of his case and he cannot be compelled to implead any person against his wishes. But at the same time where the presence of the applicant is necessary for complete and effectual adjudication of the dispute, such person cannot be refused to become a party even though, no relief has been sought by the plaintiff against him.

This judgment is also inconsequential to the petitioners, as the 1st Appellate Court is already seized of the matter and if it is concluded by it, that the petitioners are the necessary parties and the respondent No. 1 did not join them in the suit, as defendants, in that event, the suit of respondent No. 1 may be dismissed, but she cannot be compelled to fight with the petitioners.

There is, thus, no illegality or impropriety in the impugned order, which is, hereby, upheld and affirmed. Resultantly, the instant revision being devoid of merits, ought to be and is, hereby, dismissed, sans prejudice to the merits of the main suit.