Smt. Kulwinder Kaur and Others vs Raghbir Singh and Others

V.S. Aggarwal, J.—The present revision petition is directed against the order passed by the learned Civil Judge (Jr. Division) Amritsar, dated 9.9.1997. By virtue of the impugned order the learned trial Court dismissed the application filed by the petitioners under Order 1, Rule 10 of the Code of Civil Procedure.

The petitioners are the wife and children of Dr. Jagir Singh. The respondents has filed a civil suit for specific performance against Dr. Jagir Singh. The report has been received that whereabouts of Dr. Jagir Singh were not known. At this stage, it is not out of place to mention here that whereabouts of Dr. Jagir Singh are not known since 20.1.1996. A police report dated 8.7.1996 in this regard has already been made.

The petitioners submitted the application under Order 1, Rule 10 CPC that Dr. Jagir Singh is missing, his whereabouts are not known and, therefore, petitioners may be impleaded as parties to the civil suit. Needless to state that the said application was contested. The learned trial Court relying upon section 108 of the Indian Evidence Act, held that since 7 years have not elapsed, it cannot be termed that Dr. Jagir Singh is a dead person. Since such a presumption could not be drawn, the petitioners were not taken to be necessary party. Their application was dismissed. Hence the present revision petition.

The short question that comes up for consideration in face of the facts narrated above is as to whether in the peculiar circumstances the petitioners should be arrayed as defendants in the suit filed by the respondents cannot? It is true that respondents'' counsel has drawn the attention of the court to the fact that petitioners are signatories to the agreement but that is a matter to be gone into by the trial court at the appropriate stage. The position as it stands today is that whereabouts of Dr. Jagir Singh the defendant in the suit are not known. A report has already been made that he is missing since 20.1.1996. In these circumstances, will the petitioners be taken as necessary and proper parties? The question is simplified and answer is provided by this Court in the case of Gurdeep Kaur Vs. Vinod Kumar Lamba and Another, . The facts were close to the facts of the present case. The whereabouts of the defendant in that case were also not known. An application was filed under Order 1, Rule 10, CPC and this Court allowed the same holding :-

"The fact that whereabouts of Pritam Singh were not known, as referred to above, were not even disputed by the respondent-landlord. In fact in his own application for serving Pritam Singh through substituted service it was clearly averred that his whereabouts were not known. Learned Rent Controller also in his order dated July 30, 1991 had mentioned that even though it was stated in para 2 of the application that some other persons were running the shop in place of Pritam Singh, no person had been impleaded as party in this case for the reasons best known to the petitioner.

Viewed, in the light of the events quoted above as also the pleadings of the parties as also provisions of the C.P.C. as referred to above and order of Rent Controller dated July 30, 1991, it could not be said that Gurdeep Kaur was neither a necessary nor a property party".

One finds in respectful agreement with the said view point because the presence of the petitioners in the peculiar facts becomes necessary in the nature of the suit filed by the respondent-plaintiffs.

For these reasons, the revision petition is allowed and the impugned order is set aside. The petitioners are directed to be arrayed as defendants in the civil suit. The parties are directed to appear before the learned trial Court on 29.10.1998.