Narinder Kaur and another vs Thakur Kirpal Singh and others

J.V. Gupta, J.—This revision petition is directed against the order of the trial Court whereby the application under Order 1 Rule 10, Code of Civil Procedure, (hereinafter called the Code) filed on behalf of Narinder Kaur and Raminder Singh was dismissed.

Thakur Kirpal Singh and others filed a suit for the grant of the declaration to the effect that they were the owners in possession of the suit land. In that suit, an application under Order 1 Rule 10 of the Code was filed by Narinder Kaur, widow of Rajinder Singh and Raminder Singh son of Rajinder Singh on the ground that the Plaintiffs had mentioned property in dispute as 1/46th share out of 1496 share in khasra ''No. 3648/3164, 2952/1665 and 2846 situated at Mohalla Guru Nanakpura, Ludhiana. The Plaintiff had filed a plan of the property, in dispute and constructed house of the Petitioners had also been included in the plan filed by him. They were occupying the house which is electric fitted and water fitted and has flush connection, enclosed by a boundary wall and has a main gate. There had been standing litigation with Jagir Singh, the father of the Plaintiff, who is a dismissed Kanungo. In order to harass the applicants, Jagir Singh has filed the present suit as the mukhtiar of his sons against the Defendant who is living in kucha No. 3 and has no connection with the property in dispute situated in kucha No. 4. According to the applicants, the suit had been filed with mala fide intentions to harass them and to abuse the process of law. That application was contested on the plea that the applicants had no right to be joined in the present suit because they were never the owners in possession of the suit property. The trial Court dismissed the said application on the ground that the relief claimed by the Plaintiffs was not at all related to the applicants and that the applicants had also failed to establish their interest in any way in the property, in dispute, which shows that they were not necessary parties to the present suit. Moreover, the Plaintiff is the master of his case and it is up to him to implead any party, or to give up his claim against any party, in the suit.

The learned Counsel for the Petitioners submitted that there is a long standing litigation between the father of the Plaintiffs, Jagir Singh and the present applicants. The present suit has been filed by the sons of Jagir Singh, through their father as their attorney with mala fide intention. Therein, the house which is in their occupation has been shown in the plan without impleading them as parties to the suit. Thus, argued the learned Counsel, the whole approach of the trial Court in this behalf was wrong and misconceived. They being in possession of the property are necessary parties and should have been impleaded as such under Order 1 Rule 10 of the Code.

After hearing the learned Counsel for the parties, I find merit in this revision petition.

Since there has been a long standing litigation between Jagir Singh and the present Petitioners, a case was made out for impleading the Petitioners as Defendants in the suit under Order 1 Rule 10 of the Code. According to the Petitioners, their property has been included in the suit whereas according to the Plaintiffs, the suit property does not include the house, as mentioned by the Petitioners. This matter can only be decided if the Petitioners were made, parties to the suit, under Order 1 Rule 10 of the Code. Order 1 Rule 10 of the Code inter alia provides that 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 effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. Thus, in view of the said provision, it was a fit case where in order to resolve the controversy between the parties, the Petitioners should have been added as the Defendants to the suit. It was only after that, that they could show that the suit land included the house owned by them or not.

Consequently, this revision petition succeeds and is allowed. The impugned order is set aside and the application under Order 1 Rule 10 of the Code is allowed.