Smt. Devi vs Daya Ram and others

Jai Singh Sekhon, J.—The revision petition is directed against the order of the trial Court allowing the impleading of Respondents Nos. 2 to 9 as Defendants, on the allegation that these Respondents were also legal-heirs of Ram Nath original mortgagor.

In brief, the facts are that Ram Nath father of Smt. Devi Plaintiff-Petitioner mortgaged the property in dispute to Daya Ram. Ram Nath was not heard of for the last 20 years. His daughter, Smt. Devi filed a suit for redemption of the property against the mortgagee. During the pendency of the said suit, Respondents Nos. 2 to 9 depicting themselves to be the children of aforesaid Ram Nath and widow of Ram Nath filed an application for impleading them as Respondents as Defendants, which was allowed by the trial Court vide impugned order by holding that they are necessary parties.

The learned Counsel for the Petitioner contended that in a suit for redemption; the above-referred Respondents are not necessary parties, besides maintaining that it will change the nature of the suit to the one for declaration. Reliance in this regard was placed in Radha Kunwar v. Reoti Singh AIR 1916 P.C. 18, Banarsi Dass Durga Prashad Vs. Panna Lal Ram Richhpal Oswal and Others, and Brikh Bhan and Ors. v. Rajeshwar Parshad (1959) 61 P.L.R 832. The learned Counsel for the Respondents, on the other hand, maintained that in view of the provisions of Order 34 Rule 1 of the CPC and Section 91 of the Transfer of Property Act, 1882, any person having interest in the mortgage is a necessary party in a suit for redemption of mortgaged property, In this regard, the learned Counsel has relied upon a decision of the Andhara Pradesh High Court in Motilal v. Vasant and another AIR 1956 Hyd 172.

The legal controversy is now well settled that under the provisions of Sub-rule 2 of Rule 10 of Order 1 of the Code of Civil Procedure, a party can be allowed to be impleaded if it is a necessary party to the suit and that the necessary party is one in the absence of which the controversy in the suit cannot effectively be decided. In the present case, Mst. Devi depicting herself to be the daughter of Ram Nath presumed to be dead, had filed a suit for preemption of the property against Daya Ram, Defendant. Thus, the only controversy between the parties would be whether the Plaintiff is the legal-heir of Ram Nath mortgagor or that he had mortgaged the property is dispute with Daya Ram, mortgagor. Therefore, the impleading of Respondents Nos. 2 to 9 would not be necessary as the controvery can be disposed of in their absence. Certainly, the order of the trial Court in allowing these Respondents to be impleaded as Defendants in this suit on their allegation being legal-heirs of the mortgagor would convert the nature of the suit for redemption to the one for declaration The Plaintiff is the dominus litis, i.e., master of the suit and 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. This view is

supported from the findings of this Court in Banarsi Dass''s case (supra) as well as by Brikh Bhan''s case (supra), besides the findings of Privy Council in Radha Kunwar''s case (supra).

While interpreting the import of the provisions of Rule 1 of Order 34 of the CPC as well as of Section 91 of the Transfer of Property Act, this Court in Sham Lal v. Mst. Jagwanti and Ors. 1976 Rev, L.R. 79, held that a co-mortgagor is not a necessary party in a suit for redemption, as the provisions of Order 34, Rule 1 of the CPC are subject to the other provisions of the Code and that the provisions of Section 91 of the Transfer of Property Act also support the view that one of the co-mortgagors can redeem the entire mortgage without impleading the other co-mortgagors as parties to the suit.

The findings in Motilal''s case (supra) are of no help to the Respondents in the present petition as therein it was also held that any of the mortgagors is entitled to sue other for redemption of the whole property, because under Order 1 Rule 10 of the Code of Civil procedure, only those persons would be regarded as necessary parties without whose presence the matters in controversy could not be effectually and completely adjudicated upon.

For the foregoing reasons, the impugned order of the trial Court being not legally sustainable, is hereby set aside by accepting this revision petition. There is, however, no order as to costs