Sardul vs Param and Others

V.K. Mehrotra, Actg. C.J.

This revision u/s 115 CPC is directed against an order dated January 1,1988, passed by the Sub Judge 1st Class, Sundernagar, in a civil suit instituted by the applicant for possession over a piece of land on certain allegations. In the array of parties one Sehju was also impleaded as a Defendant, though all Defendants other than Parma, who is the first opposite party in this Court, were described as proforma Defendants. After sometime the Plaintiff, who says that he is a 80 year old person, discovered that Sehju was already dead when the suit was instituted. He made an application for bringing on record the heirs of Sehju as Defendants in the suit even before the first Defendant-opposite party No. 1 had filed his written statement. It is this application which was rejected by the trial court by its order of January 1, 1988, which is under challenge in the present revision petition.

Notice of the revision was directed to issue to the Respondents by this Court. The notice only said that they should show cause why revision should not be admitted. Defendant No. l (oppoiste party No. l in this revision) is represented by Shri K.D. Sood. Miss Ranjana Parmar has, according to the statement made before the Court, instructions to appear on behalf of other Defendants-opposite parties. As prayed by her, power of attorney may be filed on behalf of opposite parties 2 to 12 (except opposite party No. 7) within two weeks. When the revision came up for admission hearing, counsel for the Plaintiff-applicant and the contesting opposite party No. 1 prayed that it be disposed of finally at this stage. I have heard them at some length on that account and proceed to dispose of the revision finally.

A copy of the plaint has been shown to me by the learned Counsel for the parties. In it, the Plaintiff claims that he and the proforma Defendants were recorded as owners of the land in question and that though the proforma Defendants were recorded as owners of half share, through a family partition he was the exclusive owner thereof and was in possession till October 23, 1986. The Plaintiff describes himself as an old man of more than 80 years in age who was constantly ill for the past ten years and says that the first Defendant was his brother-in-law, being his sister''s husband, who forcibly occupied the land taking advantage of the advanced age and bad health of the applicant and got himself recorded as tenant of the land. In consequence of the entry, the first Defendant-opposite party was claiming proprietary rights by operation of law. The relief that the Plaintiff is seeking in this suit is that a decree for possession be passed in his favour and against the Defendant.

The trial Judge, while dealing with application under Order 1 Rule 10 CPC for impleading the heirs of deceased Sehju as Defendants in this suit, felt that, inasmuch as, Sehju was already dead when the suit was instituted, the suit could not proceed against him, being nullity. As such, his heirs could not be permitted to be brought on the record. He placed reliance on two decisions for the view that he has taken. The two decisions upon which reliance has been placed are reported in Jogindar Singh and Others Vs. Krishan Lal and Others, and Ali Mohd. Khan Vs. Vijay Tulsi, In the first of these cases the Punjab and Haryana High Court was concerned with the impleadment of the heirs of two mortgagees who had died prior to the institution of the proceedings before the Collector for the redemption of the mortgage under the provisions of the Redemption of Mortgages (Punjab) Act, 1913. They were necessary parties to the suit in which the Plaintiff had claimed a declaration that the order of the Collector, by which his application for redemption was rejected, was improper, against law and the provisions of the above Act. In the second of these decisions the Jammu and Kashmir High Court was dealing with a case where the sole Defendant in the suit had died prior to the institution thereof.

Order 1 Rule 10 Sub-rule (2) CPC reads thus:

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.

A perusal of this Sub-rule would show that apart from necessary parties, the court may implead a person as a Defendant in the suit who ought, in its opinion, to have been joined as such. The intendment of this provision clearly is that the Defendant, who may be a proper party to the suit, may also be directed to be impleaded as a Defendant by the court at any stage of the proceedings.

In paragarph 2 of the plaint the Plaintiff asserted that the proforma Defendants were recorded owners of half share but by way of family partition the Plaintiff was exclusive owner of the land. From this allegation it is clear that even though no relief has been sought by the Plaintiff against the proforma Defendants, the presence of these Defendants or their heirs would be proper in the sense that the Plaintiff''s claim in regard to sole ownership of the land should be examined in the light of the defence, if any, taken by these proforma Defendants.

It is settled that in case of a necessary party the Court is under an obligation to ensure that he is impleaded in the suit. In the case of a proper party the matter is one of discretion. The discretion is, however, to be exercised having regard to the relevant circumstances of the case. When a prayer for bringing on record a proper party is made, it should be examined by the trial Judge with reference to the plea taken by the Plaintiff in respect of such a Defendant. In the instant case, as is clear from the order under challenge, the trial Judge has not examined the problem from this angle at all. He has chosen to refuse the prayer made by the Plaintiff solely on the ground that Sehju was already dead when the suit had been instituted and the prayer for bringing his heirs on record could not be entertained under Order 1 Rule 10(2) CPC To quote the words of the learned Judge "it is well settled law that where a suit is filed against a dead person, it is a nullity and Plaintiff cannot be allowed subsequently to amend the suit and substitute the legal representatives in place of the Defendant and as such, the application Under Order 1 Rule 10(2) CPC is dismissed as devoid of force."

The plea which was emphatically pressed by Shri K.D. Sood, appearing for the first Defendant, before me was two fold.

Firstly, that the order passed by the trial Judge did not amount to a ''case decided'' within the meaning of that term in Section 115 CPC Reliance was placed by Shri Sood upon the observations made by a Division Bench of this Court in Ram Dass v. Smt. Subash Bakshi (ILR 1976 H.P. 111) where speaking through R.S Pathak C.J. (as he then was), this Court said that "a case is decided when there is an adjudication on the rights or obligations of the parties in controversy. Such adjudication may be in the nature of a decision expressly

deciding those rights or obligations....Or the adjudication may be such as to have the necessary effect of deciding those rights...Earlier to this observation the Court dealt with the question as to what would amount to ''a case decided''. In that connection it made observations in paragraphs 10 and 11 of the report which, far from limiting the scope of the word case decided'', as canvassed by Shri Sood, show that the word ''case decided'' has, by now,acquired an extended meaning. It is not necessary to refer in detail to the decision of the Supreme Court in Major S.S. Khanna Vs. Brig. F.J. Dillon, which clearly lays down that the word "case decided" is not confined to a decision touching the merits of the suit alone. The view expressed by the Supreme Court now finds statutory recognition in the form of an Explanation to Section 115 CPC which says that in the Section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceedings. When as in the present case, the trial court takes the view that it is not necessary to implead a proper party whose presence, in the circumstances of a case, may be justified on account of the allegations contained in the plaint, the decision undoubtedly amounts to a case decided" for the purposes of Section 115 Code of Civil Procedure.

The second submission of Shri Sood was that in the case of a party which is not a necessary party and is only a proper party for the purposes of suit, the trial Judge has the discretion to direct his impleadment or not as a Defendant in the suit. Exercise of discretion either way cannot be made subject to a revision u/s 115 CPC Reliance in this respect was placed by Shri Sood upon the decisions in AIR 1941 16 (Federal Court) Surinder Kumr and Anr. v. Raj Kumar Sehgal and Ors. 1978 PLR 472 and Sarup Chand Vs. Nagar Palika, Sangrur and Others, .

It is true that where an order can be made by a court in its discretion, normally it is not to be interfered with by the revisional court in exercise of powers u/s 115 CPC Whether the discretion can be interfered with in certain circumstances or not need not be examined in the present case for it is not necessary to do so. As mentioned earlier, the trial Judge has not founded his decision on the ground that, in the circumstances of the case he was not exercising discretion in favour of the impleadment of the heirs of deceased Sehju, who was impleaded as a proforma Defendant in the suit and had died before the institution thereof. In fact the learned Judge had not gone into the question whether Sehju was a proper or a necessary party for the purposes of the decision of the controversy raised in this suit. The learned Judge, as seen earlier, has based his decision solely on the ground that Sehju having died before, the institution of the suit, proceedings against him were nullity and in those circumstances his heirs could not be permitted to be brought on the record. In this situation the plea that this Court should not interfere with the exercise of discretion by the trial Judge in the matter really does not arise. When the trial Judge proceeds to examine the matter of impleadment or otherwise of the heirs of the deceased Sehju as Defendants in the suit on a legally erroneous consideration, namely, that Sehju being dead proceedings against him were nullity and there-is no examination of the problem with reference to the question whether it would be proper or not to bring his heirs on the record, the order would clearly amount to failure on his part to exercise the jurisdiction vested in him in law. In the present case, therefore, the order cannot be justified on the principle put forward by Shri Sood.

The impugned order deserves to be and is set aside. The matter is remanded to the trial Judge for consideration afresh in accordance with law. Since the record of the suit has not been summoned, it is appropriate that the trial Judge should, after hearing counsel for the parties, take a decision on the application made by the Plaintiff under Order 1 Rule 10 CPC expeditiously, as far as possible, within two weeks of the date when the parties appear before him with a certified copy of this order. As suggested by the learned Counsel for the parties, let the parties apear before the trial Judge on June 14, 1988.

Costs on parties.

A copy of judgmentmay be made availbleto the learned Counsel within a week from todayon the paymentof usual charges.