Shanti Lal vs Laxminarain and Another

Shiv Kumar Sharma, J.—The questions that fall for consideration in this revision is as to whether the plaintiff can be compelled to fight against some other litigant not of his own choice? and whether the provisions of Order 1 Rule 10 CPC can be read as requiring all persons who choose to lay claim to any sort of right, title or interest in respect of the subject of a suit to be made a party?

These questions emerge in the following circumstances:

(a) The plaintiff petitioner (for short the plaintiff) instituted a suit for eviction with respect of property in question against the defendant non-petitioner Laxmi Narain (for short the defendant) in the trial Court, in the month of November, 1993. The defendant submitted written statement stating therein that the plaintiff executed agreement to sell in favour of Ram Kishore Malhotra on September, 17, 1993 in respect of the property in question and the defendant on October, 9, 1993 handed over possession of the said property to Ram Kishore Malhotra as per the directions of the plaintiff. Therefore, the plaintiff unnecessarily instituted the suit against the defendant whereas Ram Kishore Malhotra was the necessary party in the suit.

(b) Ram Kishore Malhotra thereafter moved an application under Order 1 Rule 10 CPC with the allegations that he took the possession of the shop in question from Laxmi Narain on October 9, 1993 in pursuance of the agreement to sell dated September 17, 1993 executed by the plaintiff. For the specific performance of the said agreement he already instituted a suit against the plaintiff in the Court of Additional District Judge No. 4, Jaipur City. Though the plaintiff had knowledge of the said suit yet the plaintiff did not implead him as party in the suit. If he is not impleaded as party, his rights would be affected by the decree to be passed in, the suit. He was a necessary party in the suit therefore he be allowed to join as defendant in the suit.

(c) The learned trial Court allowed the application and impleaded Ram Kishore Malhotra as defendant in the suit vide order dated December 6, 1995. The said order has been questioned by the plaintiff by filing this revision.

Mr. M.M. Ranjan, learned Counsel vehemently contended that the trial Court committed jurisdictional error in allowing the application of Ram Kishore Malhotra moved under Order 1 Rule 10 CPC. Suit for eviction cannot be converted as suit for declaration of title. The scope of eviction suit can not be enlarged. Reliance was place on the following authorities, (i) Lakshmi Narain Vs. The District Judge, Fatehpur and others, (ii) Achalal v. Surendra Kumar RLW 1988 (2) Raj 314(iii) Barkat Ali v. Smt. Rukhsana 1992 WLN (UC) 607).

Mr. Z.A. Naqvi, learned Counsel for the non-petitioner, on the other hand supported the order of the court below and placed reliance on Smt. Dhan Bai v. Pheroz Shah RLW 1970 94.

It is well settled that the plaintiff being dominus litus cannot be compelled to fight against some other litigant not of his own choice. Order 1 Rule 10(2) is applicable to two classes of cases only, one class is where he ought to have been joined as a plaintiff or a defendant and is not so joined. That is a case of a necessary party. The other class is where without the presence the questions in the suit cannot be effectually and completely decided. The Court has no power to join as a party who claims to belong to this class unless it is prima facie satisfied about the plausibility of his claim. Rule 10(2) cannot be read as requiring all persons who choose to lay claim to any sort of right, title or interest in respect of subject of a suit to be made a party. (Emphasis supplied)

It is in this legal background that I proceed to scan the order impugned. Few dates are necessary to be looked into:

September 17, 1993-Alleged Agreement to sell said to have been executed by plaintiff in favour of Ram Kishore Malhotra.

October 9, 1993-Possession of the property in question was handed over by the defendant tenant Laxmi Narain to Ram Kishore Malhotra.

November, 1993 - Suit was filed by the plaintiff against the defendant Laxmi Narain seeking possession of property in dispute.

Indisputably, the so called agreement to sell was executed prior to filing of civil suit by the plaintiff. The defendant also admitted in the written statement that he already handed over the possession of the property in dispute to Ram Kishore Malhotra on October 9, 1993, in pursuance to the directions of the plaintiff. Ram Kishore Malhotra also instituted suit for specific performance of the said agreement to sell against the plaintiff in the Court of Additional District Judge No. 4 Jaipur City. In view of all these facts the learned trial court was prima facie satisfied about the plausibility of the claim of Ram Kishore Malhotra.

I am not impressed by the arguments advanced by the learned Counsel for the petitioner. In the peculiar circumstances of the case it cannot be said that scope of the suit shall be enlarged if Ram Kishore Malhotra is impleaded as party in the suit. As admitted by the defendant tenant in his written statement that possession of the property in question is with Ram Kishore Malhotra and therefore questions in the suit in absence of Ram Kishore Malhotra cannot be effectually and completely decided. No doubt that the plaintiff being dominus litus, cannot be compelled to fight against some other litigant not of his own choice but Ram Kishore Malhotra, in the instant case is not some other litigant, may be not of the choice of the plaintiff.

There is yet another aspect of the case. If for a while I assume that Ram Kishore Malhotra is not a necessary party and ultimately decree is passed against the defendant Laxmi Narain then in that event Ram Kishore Malhotra can raise, objections under Order 21 Rule 97 CPC before the executing court that the decree is inexecutable against him. And the executing court shall have to try the objections as a civil suit again. Therefore after the decision of Babulal Vs. Raj Kumar and Others, which has allowed the third person (not party in the decree) to raise objection under Order 21 Rule 97 CPC. The courts should construe the provisions contained in Order 1 Rule 10 liberally so as to prevent second inning of the litigation before the executing Court. (Emphasis Sapplied)

I have already referred the principles deducible from the authorities cited at bar in the earlier part of this judgment, therefore it is not necessary to repeat them again.

The result of foregoing discussions is that no jurisdictional error has been committed by the learned trial Court in passing the impugned order and if it is allowed to stand it would not occasion failure of justice.

Consequently, the revision falls and is hereby dismissed; Costs easy.