Skaria Joseph vs Eliyamma Joseph

J.B. Koshy, J.—Petitioner in these revision petitions is the Plaintiff in O.S. No. 893 of 1992 on the file of the Principal Munsiff, Cherthala. In the suit Petitioner alleged that on 23rd March 1944 document No. 1117 was executed in favour of the father of the Defendants in the suit and in spite of the document, Petitioner has continued to be in possession of the property and effected valuable improvements therein and continued to reside in the building. The Defendants after the death of their father failed to recovery the property to the Plaintiff. Hence the suit was filed for declaration of his right over the plaint schedule property. I.A. No. 1802 of 1993 was filed by the Respondent C.R.P. No. 1581 of 1993 stating that over a portion of the plaint schedule property her deceased father had right and as such his legal heirs including the Petitioner in the I.A. (Respondent herein) have right over ten cents of property. The contention in the objection filed by the Petitioner/Plaintiff is that the right alleged by the Respondent/Petitioner in the I.A. over 10 cents of property forming part of the plaint schedule property is false. Learned Munsiff found that Respondent in the revision petition is a necessary party to the suit as she is claiming right over ten cents of property which is part of the 30 cents of land for which declaration is sought for. In I.A. No. 634 of 1993 also similar claim was raised regarding Anr. ten cents of land on the ground that their deceased father had obtained purchase certificate in respect of ten cents of property which is covered in the 30 cents of plaint schedule property and one of the legal heirs has filed a partition suit O.S. No. 259 of 1991 in respect of that property which is pending adjudication before the Sub Court, Cherthala. A copy of that plaint was also produced for evidence. Learned Munsiff found that they also should be impleaded since it is a suit for declaration of title in the plaint schedule property and Petitioners in the I.A. are claiming title over part of the property. Against the above order, C.R.P. No. 1582 of 1993 is filed. Since the issues are same they are heard together with the consent of parties.

It is contended on behalf of the Petitioner that impleadment of the Respondents in the civil revision petitions in the suit are illegal and against the provisions of Order 1, Rule 10. They are not necessary parties. Plaintiff/Petitioner is not seeking any relief against the Respondents who were impleaded. Therefore, their impleadment is illegal and without jurisdiction. It is also contended that they are not necessary parties and their presence is no way required for the effective adjudication of the dispute in question which the Plaintiff filed against the original Defendants in the suit. Therefore, the Petitioner prays that the impugned orders impleading the Respondents in both the revision petitions should be set aside.

In support of the contention Petitioner cited the decision of the Andhra Pradesh High Court in B. Somaiah and Anr. v. Smt. Amina Begum AIR 19 A.P. 182 where it was held that where a person applies to be made as a party to the suit, the Court should see whether there will be prejudice by his not being added as a party. The questions involved in the suit in Order 1, Rule 10 refer only to questions between the parties to the suit. They refer only to questions as between the Plaintiff and Defendant and not to questions which may arise between a party to the suit and a third party. The procedure under Order 1, Rule 10 should always be adopted where it is really necessary for a complete adjudication of the questions involved in the suit and to avoid multiplicity of suit. Order 1, Rule 10 cannot be resorted to where there is no need for adding new parties for adjudication upon the questions involved in the suit. Persons cannot be added as parties to the suit merely because it may save them the expenses of a separate suit for seeking adjudication on the claim made by them, which is not directly and substantially the subject-matter of the suit. In the above case, a Single Judge of the Andhra Pradesh High Court was considering a Civil Revision Petition against an order refusing to add the Petitioners therein as additional Defendants in the suit by the lower Court. The suit was filed to recover possession of land against the Government of Andhra Pradesh and the Praga Tools Corporation, a public limited company. Plaintiff claimed that her mother was the absolute owner of the suit property and after her death, being the sole heir, she became entitled to the property and she filed the suit to recover possession or in the alternative for compensation. According to the revision Petitioners in that case, there was an agreement with them and had a subsequent agreement of sale in their favour of the plaint schedule property. It was held in the above decision that since no relief is claimed against the Petitioners, the dispute between the Petitioners and Plaintiff need not be gone into before any relief can be granted in the present suit filed against the Government and the Praga Tools Corporation. It is not even the case of the Petitioners that the Plaintiff is likely to collude with the Government and the Praga Tools Corporation. Therefore, their presence is not necessary in the suit to protect their interest. Their remedy is to file a suit for specific performance. It was found that Petitioners cannot be added as parties merely on the ground that it may save them the expenses of a separate suit. The facts of that case are entirely different from here. Revision Petitioner in this case is the Plaintiff who filed the suit for declaration of title over 30 cents of land. It is claimed by the Respondents that part of the land are owned by them and therefore, Plaintiff is not entitled for declaration of title. Unlike the case considered by the Andhra Pradesh High Court, for deciding the matter Respondents were necessary parties and therefore, the lower Court allowed impleadment. Therefore, the case in hand is different from the facts of the case considered by the Andhra Pradesh High Court.

Revision Petitioner also relied on the decisions in P.V. George v. Bank of Madurai Ltd. 1986 KLT 406 and in National Spices v. Andhra Bank 1987 (2) KLT 132. In both the above cases suit was filed for realisation of amounts advanced under various heads of loans. The advance was guaranteed by the Export Credit Guarantee Corporation (E.C.G.C.). Therefore it was contended that they are necessary parties. Application for impleading them was opposed by the Plaintiff as well as E.C.G.C. In the above circumstances it was held by the Court that E.C.G.C. is not a necessary party in the suit. The transaction between E.C.G.C. and Defendant are entirely different and unconnected with the plaint transaction. Plaintiff had not made any claim against E.C.G.C. Plaintiff does not want to implead the Corporation or ask for any relief. The transaction between the Plaintiff and E.C.G.C. was independent of the plaint transaction and Defendants are exclusively liable. Therefore, liability of the Defendants towards Plaintiff was independent of the plaint and claim of the Plaintiff against E.C.G.C. and independent claim of the Defendant. Therefore, it was held that E.C.G.C. is not a necessary party. Plaintiff cannot be compelled by the Defendants to enlarge the scope of the litigation and complicate the same by adding new parties. E.C.G.C. was not at all interested in the cause of action in the suit. The above case will not help the Petitioner herein in any manner. In paragraph 8 of the decision reported in 1987 (2) KLT 132 it was held as follows:

It is open to the Court to implead a new party as Defendant even against the consent of the Plaintiff and in spite of his opposition in a fit and proper case. In such cases the test is not whether it is according to the wishes of the Plaintiff or any investigation into a question not arising out of the cause of action alleged by the Plaintiff becomes necessary. The test is whether the relief claimed by the Plaintiff will directly affect the person to be impleaded in the enjoyment of his rights. Persons whose interests are likely to be; affected by the decision in the suit are entitled to come in to protect their interests especially when it is likely to be jeopardised by the persons already on record. Any how the persons sought to be added should have a direct interest as distinguished from a commercial interest in the subject-matter of the litigation.

It was also held by Their Lordship that Plaintiff in that case does not want any relief against E.C.G.C. in the suit and E.C.G.C. also does not want to come in as a Defendant. If at all anybody other than the parties will be affected by the suit it is only E.C.G.C. who is not interested. Here, the position is entirely different. Respondents herein wanted themselves to be impleaded as additional parties as according to them, part of the plaint schedule property belongs to them and declaration of title cannot be granted to the Plaintiff/Petitioner. For considering whether declaration of title can be granted to the Plaintiff, Respondents are necessary parties and they themselves wanted to got themselves impleaded as parties. Therefore, case in hand is different from the above two cases.

Petitioner also cited the decision in Jacob and Ors. v. Jose and Ors. ILR 1996 Ker 192. In that case, suit was filed by three persons as Plaintiffs. The suit was for a decree for a permanent prohibitory injunction restraining the Defendants from trespassing into the plaint schedule properties and widening a pathway across the same. An interlocutory application was filed by Plaintiffs 1 and 2 to withdraw from the suit with leave to file a fresh suit, if so required and that petition was allowed. Subsequently, they filed an impleading petition to implead them as additional Plaintiffs because, according to them, their attempt to make a settlement failed. It was found by the Court that the suit property belonged to the third Plaintiff alone. Over the plaint schedule property the Petitioners who wanted to get themselves impleaded, i.e., original first and second Plaintiffs, have no manner of right or connection. Since in the plaint schedule property they have no right and only the third Plaintiff has right, they cannot be impleaded, in view of the provisions of Order 1, Rule 10(2). This case, according to me, is not helpful to the Petitioner as herein Respondents alleges that they have got title over part of the plaint schedule property and therefore, in the declaratory suit for title they are necessary parties.

Order 1, Rule 10(2) of the CPC provides that the Court may at any stage of the proceedings, either upon or without application of either party, and on such terms as may appear to the Court to be just, order 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 questions involved in the suit, be added as party to the suit. Therefore, parties who are impleaded under Order 1, Rule 10 should be necessary parties. As decided by the Supreme Court in Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar, a necessary party is one without whom no decree can be made effectively. A person may be impleaded as a Defendant in a suit, though no relief may be claimed against him, if his presence is necessary for a complete and final adjudication of the questions involved in the suit. Normally the questions involved in a suit are those which arise between the parties to the suit. Only a person who has direct interest in the subject matter of the litigation, whether it raises questions relating to moveable or immovable property, can however be impleaded as a party. The Court had no jurisdiction to add a person as a parity to the litigation if he had no legal interest in the issue involved in the case. The matter was elaborately dealt with by Devlin, J. (as then a Judge in the Queen''s Bench Division) in Amon v. Raphael Tuck and Sons Ltd. (1956) 1 All. ER. 273 and held that it was not enough that the intervener was commercially or indirectly interested, he must be directly or legally interested. A person is legally interested in the question involved in the suit only if he can say that it may lead to a result that may affect him legally, that is by curtailing his legal rights. Here it is a question of declaration of title over suit schedule property and the Respondents herein claimed that part of the suit schedule property belonged to them. If the suit is decreed their rights would be affected. Therefore, they are necessary parties for a correct adjudication of the dispute. Therefore, I am of the opinion that lower Court has correctly allowed them to get themselves impleaded.

In Razia Begum v. Sahebzadi Anwar Begum and Ors. AIR 1958 S.C. 286 it was held by the Supreme Court as follows:

As a result of these considerations, we have arrived at the following conclusions:

(1) That the question of addition of parties under Rule 10 of Order 1 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; but in some cases, it may raise controversies as to the power of the Court, in contradistinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in Section 115 of the Code;

(2) That in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject-matter of the litigation;

(3) Where the subject-matter of a litigation, is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the Court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy;....

In this case, the Respondents are necessary parties. Suit relates to declaration of title to the property and Respondents claim that they have got right over part of the property. So they have got a direct interest as distinguished from a commercial interest in the subject-matter of the litigation and therefore, they are necessary parties. Therefore, I cannot say that the exercise of the discretion exercised by the Court in impleading them under Order 1, Rule 10 is incorrect. In view of the decision of the Supreme Court quoted above, the lower Court has rightly allowed the Respondents to got themselves impleaded in the suit.

In the decision P.R. Nallathambi Goundan Vs. Vijaya Raghavan and Others, a Division Bench, of the Madras High Court held that persons whose interests will be affected by the litigation are entitled to come on record to protect their interests when those are jeopardised by the persons already on record. In Girija Devi v. Hormis Thaliathp 1983 KLT 732 this Court held that all persons who have a direct interest in the subject-matter of the suit can be impleaded in spite of the opposition by Plaintiff.

From the above discussions it can be concluded that in a suit for declaration of title, persons who claim title over part of the suit schedule property and are not original parties to the suit are necessary parties and they can be impleaded to protect their interests. On the facts of the case there cannot be any doubt that the Respondents have direct interest in the subject-matter. The Court has got discretion to implead them if they are necessary party or their presence before Court is necessary to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit. Once the trial Court exercise the jurisdiction under Order 1, Rule 10(2) and give valid reasons for the same, ''this Court cannot interfere with the judicial discretion exercised by the trial Court in a revision petition filed u/s 115 of the Code of Civil Procedure. Lower Court has rightly impleaded the Respondents as parties to the suit for valid reasons. I see no infirmity in the order.

Therefore, there is no merit in the Civil Revision Petition and accordingly, it is dismissed. No costs.