Rohi Ram and Others vs Mukhtiar Kaur and Others

S.S. Sodhi, J.

1.Challenged in revision here is the order relating to the impleading of parties to the suit.

The Plaintiff Rohi Ram-filed a suit for declaration that he was the owner in possession of the land in suit. This case was founded upon the will said to have been executed in his favour by the last holder Kartar Singh on January 12, 1976 According to this will, Rohi Ram was required to pay a sum of Rs. 40,000/- to Mukhtiar Kaur, the widow of Kartar Singh failing which Mukhtiar Kaur to be given 1/5th share of the land in suit. The said Kartar Singh died in 1977 and mutation of his entire property came to be sanctioned in the name of his widow Mukhtiar Kaur on November 30, 1980. The Plaintiff Rohi Ram thereafter filed the present suit for declaration in October, 1984. About two months after the filing of the suit and on the day on which Mukhtiar Kaur filed her written statement, Gurbachan Singh and Karnail Singh, nephews of Kartar Singh deceased, filed an application under Order 1 Rule 10 of the CPC praying that they be impleaded as party to the suit. This was opposed by the Plaintiff. The trial court, however, allowed this application and directed that they be impleaded as Defendants. This is indeed an order that cannot be sustained.

The law is well-settled that the Plaintiff is the dominus litis and as a result, therefore, no person should be impleaded as a party to the suit whom the Plaintiff opposes. Reference may, in this behalf, be made to the judgment of this Court in Banarsi Dass Durga Prashad Vs. Panna Lal Ram Richhpal Oswal and Others, , where Sarkaria, J observed "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 dominus litis. 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. -----> 4. Mr. R. K. Aggarwal, counsel for the Respondents sought to contend that it was not the invariable rule that the mere fact that the Plaintiff had opposed the application for pleading of parties that such an application must be dismissed Each case, be argued, must be considered on its own facts and if the circumstances so warrant, it could indeed be allowed despite the opposition of the Plaintiffs. He referred in this behalf to Major Singh v. Naranjan Singh (1983) 85 P. L. R. 435. In this suit the sons filed a suit for injunction against their father seeking to restrain him from alienating the property in suit on the ground that it belonged to the Hindu Undivided Family and that the intending alienations were not for legal necessity. Before the suit had been filed, the father had entered into two agreements for the sale of two parcels of land. The intending vendees, when they learnt of the suit, applied for being impleaded as parties thereto. The trial court allowed this application and this order was later challenged in revision in this Court and was upheld The Court holding that the agreements for the sale of part of the land in suit entered into by the father, were indirectly under attack and the character of the suit would not, therefore be altered by the intending vendees being impleaded as parties as their defence would be confined to the two material points raised in the suit, namely; whether the suit property including the land mentioned in the agreement belonged to the Undivided Hindu Family and whether there was legal necessity for the sale thereof.

It will be seen that the authority cited is distinguishable on facts from the present case. The case, as filed by the Plaintiffs, being founded upon a will said to have been executed in their favour, whereas the nephews of Kartar Singh deceased base their case upon their relationship with the deceased and so claim a superior right of succession. It would be apparent, therefore, that by impleading the nephews as parties, it would bring in a new cause of action for the Court to adjudicate upon The present was thus clearly rot a case where the trial court could be said to have been justified in impleading parties to the suit despite the opposition thereto of the Plaintiffs.

The impugned order of the trial court is accordingly hereby set aside and this revision petition is thus accepted. Costs of this petition shall be costs in the suit. Counsel fee Rs. 300/-.