(Piuns) Kantimohan and Others vs Ramballabh Das

Fazl Ali, J.—These three applications arise out of a mortgage suit which is pending before the Subordinate Judge, Second Court at Arrah. Two of these applications have been preferred by the plaintiff and one by defendants 3 and 4. The mortgage bond which is the subject-matter of the suit was executed by defendants 1 and 2, fathers of defendants 3 and 4 (who are minors) as kartas of their family in favour of one Gobind Ram in 1928. In 1931 the plaintiff brought the mortgage suit alleging to be a son of Gobind Ram.

There were six principal defendants in the suit besides a number of pro forma defendants. Two written statements were filed one by defendants 1 and 2 and the other on behalf of the minor defendants 3 and 4 in August 1931, but nothing was stated in either of them to indicate that the defendants intended to challenge the allegation of the plaintiff that he was the son of Gobind Ram. This matter was also not made the subject matter of any of the issues which were framed on 11th December 1931. Subsequently however the Court was persuaded to appoint one Pandit Ram Narain Choubey as the guardian of the minors, and on 15th August 1933 in a supplementary written statement filed by the newly appointed guardian, the locus standi of the plaintiff to bring the suit was challenged.

Thereupon the plaintiff served an interrogatory upon the guardian to find out what the allegation exactly meant and it was elicited then that what the defendants meant to assert was that, so far as they had ascertained by inquiry, the plaintiff was not the son of Gobind Ram, deceased. Till that stage however no documents were filed by the defendants in support of their assertion, but two documents, namely a trust deed and a copy of a certain school register, were filed subsequently on 17th and 18th November 1933 after the evidence for the defendants had been closed.

The plaintiff thereupon asked the Court to give him an opportunity to rebut these documents but that opportunity was refused and hence the plaintiff has filed his two applications to this Court which are the subject matter of Civil Revisions 642 and 643. The subject-matter of Civil Revision 613 which has been filed on behalf of defendants 3 and 4 is an order passed by the Subordinate Judge by which he has allowed one Mt. Chando who alleges to be the widow of Gobind Ram and the mother of plaintiff, to be impleaded as a co-plaintiff upon her application dated 20th November 1933.

This application was filed after the entire oral evidence, except that of a formal witness had been recorded and when certain witnesses cited by the defendants were being examined on commission. The application had been opposed by the defendants but the learned Subordinate Judge overruled their objection and the grievance of the defendants is that not only has the Subordinate Judge acted improperly in impleading Mt. Chando as a co-plaintiff at a late stage of the proceeding, but also that he had no jurisdiction to do so under Order 1, Rule 10. Now, so far as the two applications preferred by the plaintiff are concerned they were not opposed by Mr. P.R. Das who appeared for the defendants and they must be allowed.

Mr. Rai Guru Saran Prasad who appeared to reply to the arguments advanced on behalf of the plaintiff suggested that the plaintiff had no right to adduce any evidence in rebuttal of the evidence adduced on behalf of the defendants. Ordinarily that will be so, but having regard to the peculiar circumstance of the case, and keeping in view the fact that the plea of the defendants, that the plaintiff is not the son of Gobind Ram, was introduced at a late stage and that the two documents were sprung upon them without any previous notice, it appears to me to be only fair that the plaintiff should have an opportunity to meet those documents.

I would therefore set aside the order of the Subordinate Judge against which Civil Revisions Nos. 642 and 643 are directed and direct that the plaintiff be given an opportunity to adduce such evidence as he considers necessary to explain and rebut the two documents, namely the trust deed and the copy of the school register filed on behalf of the defendants.

The question raised in Civil Revision No. 613 is however not free from difficulty. Mr. P.R. Das contends that the object of Order 1, Rule 10 is merely to enable the Court to bring before it all such persons as are either necessary or proper parties. The first part of the rule is said to contemplate among other things those cases in which the right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist in the alternative.

Mr. P.R. Das in support of his contention places great reliance upon Abdul Gafur and Others Vs. Ali Miah, Sub-Registrar, . That was a suit for rent and it was pointed out in that case that the parties cannot be added so as to alter the nature of the suit although the question of title may be incidentally investigated in a suit for arrears of rent, for example, where a tenant defendant disputes the extent of the title of the plaintiff to the arrears demanded. In their judgment the learned Judges who decided the case observed as follows:

It is further plain that a person may be added as a party to a suit only in two cases: first, when he ought to have been joined and has not been so joined; or secondly, when without his presence the question in the suit cannot be completely decided.

This case supports to some extent the contention of Mr. P.R. Das, and it must be conceded that the proposition he contends for certainly provides a good working rule or formula. As I read the section however I find that Clause (2) is couched in fairly wide terms and it will be difficult to enumerate with any degree of finality or exhaustively all the cases to which alone the discretion vested in the Court under this rule would apply. The discretion given to the Court is a wide one and each case will have to be decided on its own merits. Besides even though it may appear in a particular case that the discretion was not properly exercised it does not necessarily follow that the Court could not exercise any discretion at all in the matter. The present case has peculiar features of its own, and although I have been greatly impressed by some of the arguments advanced on behalf of the petitioner to which I shall refer presently, I am unable to hold that the Court below has acted without jurisdiction.

The argument which greatly weighed with me was this. Mt. Chando Kuer''s own case is that the plaintiff is the son of Gobind Ram and if that is so, there was no occasion for her being a co-plaintiff. At the same time the matter cannot be dealt with, without having regard to the peculiar circumstances under which Chando Kuer came forward with an application to be impleaded as a party. The defendants had challenged the locus standi of the plaintiff at a late stage and had taken every care not to disclose their plea until they were pressed. They had also suddenly sprung upon the plaintiff two documents which the Court would not allow him to meet.

In these circumstances Mt. Chando might well have apprehended that the Court might give effect to the plea of the defendant with regard to the locus standi of the plaintiff. At the same time it was manifest that if the plaintiff was not the son of Gobind Ram and could not maintain the suit for that reason Mt. Chando Kuer could maintain it in the absence of a son as the widow of Gobind Ram. It is not conceded by the defendants that she is the widow of Gobind Ram nor have the defendants clearly stated whether Gobind Ram died in a state of jointness or separation with his reversioners; but in any case unless it was proved that Mt. Chando was not the widow of Gobind Ram or that the latter died in a state of jointness with his reversioners, there can be no doubt that Chando Kuer would be competent to maintain the suit if in fact Gobind Ram had no son.

Now the position created was undoubtedly a difficult one and Mt. Chando could not either assume or assert in her application that the plaintiff was not the son of Gobind Ram but if the application is carefully read it is capable of one construction only and that is that she alleged herself to be entitled to sue if Gobind Ram for some reason or other was held not to be the father of the plaintiff. If in these circumstances the discretion vested in the Court under Sub-rule (2), Order 1 Rule 10 which as I have already stated is couched in fairly wide terms was exercised by the Court in her favour, I am not prepared to say that the Court could or should not have exercised such a discretion especially when it is clear that the Court acted in aid of justice to prevent the suit being defeated upon a more or less technical ground.

On any count I am not prepared to exercise the discretionary jurisdiction which is vested in this Court for interfering with the order of the Court below u/s 115, Civil P.C. At the same time in fairness to the defendants I must point out to the learned Subordinate Judge that the defendants should be given an opportunity of filing an additional written statement which may include the pleas which were suggested in the course of the argument in this Court, namely that Mt. Chando is not the widow of Gobind Earn and that Gobind Ram died in a state of jointness with his reversioners.

It is needless to add that in case such a supplementary written statement is filed by the defendants the Subordinate Judge will frame such issue or issues as will then arise between the parties and give an opportunity to the parties to adduce such evidence as they may consider necessary to enable the Court to decide those issues. With these observations Civil Revision 613 is dismissed and Civil Revisions Nos. 642 and 643 are allowed. In the circumstances of the case there will be no order as to costs. As to the costs in the Court below, the new plaintiff will have to pay such costs as may be incurred by the defendants in resisting her plaint and plaintiff 1 will be similarly entitled to such costs as may be incurred by him in meeting the two document filed by the defendants on 17th and 18th November. The stay order is vacated and the record is to be sent down at once.