Om Parkash vs Lachhman Dass and Others

G.C. Garg, J.—Dismissal of an application under Order 1, Rule 10 of the CPC filed by Om Parkash, petitioner, has given rise to the present revision petition.

In order to understand the controversy raised in this petition, it is necessary to notice the following pedigree table :--

Phuman Ram | ----------------------------------------------------- | | | Dhira Mal Khushi Ram Shadi Ram | | | -------- ----------- --------- Lachhman Dass Ram Kumar Tej Ram (plaintiff) Ram Gopal (Defendant No. 2) Hari Chand Krishan Kumar (Defendant No. 1) Sohan Lal | Satpal --------------- (Defendants 3 to 7) Roshan Lal (Krishnan Lal Om Parkash (applicant)

Lachhman Dass, Plaintiff, filed a suit for declaration to the effect that there had been a family settlement between the parties and that they have become owners in possession of the properties as detailed in the head note of the plaint. During the pendency of the suit, Om Parkash son of Hari Chand (defendant No. 1) son of Dhira Mal filed an application under Order 1, Rule 10 of the Code praying therein that he be impleaded as a party to the suit. The applicant pleaded that he was a necessary party and in his absence the suit could not be decided properly, he having a share in the suit property. This application was opposed.

Trial Court dismissed the application by order dated September 24, 1991. Aggrieved by this order, Om Parkash applicant has filed the present revision petition.

On the above premises a question that arises for consideration is, whether Om Parkash petitioner was a necessary or a proper party to the suit, Rule 10 of Order 1 of the Code provides that a person may be added as a party to the suit when he ought to have been joined and is not joined or where the question involved in the suit cannot be decided between the parties in his absence. As a rule, no person should be impleaded as a party when the plaintiff, who is dominus litus of his suit, is opposed to such move Otherwise also no person should normally be added as a party against the wishes of the plaintiff as it is he who seeks relief against a set of persons he has impleaded as parties. This, however, is not the absolute rule It is not that the Court is powerless and cannot add a person as a party to the suit when the plaintiff is opposed to it. The Court still retains the discretion to add any person as a party to the suit but such cases are normally very few The Court, in my view, retains jurisdiction to add a person as a party when it finds that the controversy in the suit cannot be completely and effectively decided between the parties in the absence of such person.

In the present case, a family settlement has been arrived at between the parties for partition of joint Hindu family property as detailed in the head note of the plaint in respect of which a collusive suit has been filed by Lachhaman Dass son of Dhira Mal against his cousins (father''s brother''s sons). Dhira Mal is already dead. He has left behind two sons Lachhman Dass and Hari Chand defendant No. 1. Thus the entire interest of the branch of Dhira Mal is represented by his two sons named above. Consequently, the entire interest of the branch to which the applicant belongs, he being the son of Hari Chand defendant No. J, is being represented by his father in an effective manner. It is not shown as to how the presence of the applicant Om Parkash is necessary in order to adjudicate the dispute between the parties in an effective manner. It is also not shown as to how he is either a necessary or a proper party. No interest of the petitioner is involved in the suit. Whatever his father gets, the petitioner will have his share therein if he is a co-parcenar. In Razia Begum v. Sahebzadi Anwar Begum A. I. R. 1958 S. C. 8867. it was held that question of addition of parties under Rule 10 of Order i of the Code of Civil Procedure, is generally not one of initial jurisdiction of the Court, but of a judicial discretion which 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 in the matter.

7 On consideration of the entire matter, I find that there is no merit in the contention of the learned counsel. Razia Begum''s case (supra) does not in any way help the petitioner because the petitioner has not been able to show any direct interest in the property nor has it been shown that the controversy between the parties cannot be effectively decided in his absence. Thus, in my view, the petitioner is neither a necessary nor a proper party to the suit and his application for being impleaded as a defendant in the suit has been rightly dismissed by the trial Court,

For the reasons aforesaid, the revision petition fails and is dismissed. No costs.