Sri Bajranglal More and Another vs Purbanchal Bank Ltd. and Another

B.P. Saraf, J.—This revision application is directed against the order dated 25.2.89 passed by the Assistent District Judge, Sibsagar in Title suit No. 79 of 1987 rejecting the petition filed by the Petitioners for impleading them as Defendant in the suit.

The suit was filed by the opposite party, Purbanchal Bank Limited against one Chiranjilal More describing him as the proprietor of M/s. Gobindram Ganeshnarayan. The Said suit was for recovery of a sum of Rs. 61,906 87 being the a amount of loan and interest and also for sale of mortgaged property described in the Schedule ''B'' to the plaint, the case was that the said Chiranjilal More had taken a loan from the Bank by mortgaging the property in question. An application was filed by the present Petitioners under Order 1 Rule 10 of the Code of Civil Procedure, 1908 (hereinafter the Code of Civil Procedure) for impleading them as party-Defendants on the ground that the business and property In question were not the individual property of Chiranjilal More but property of a Hindu Undivided Family (hereinafter ''HUP of which he happened to be the Karta. The Petitioners claiming themselves to be members of the H.U.F. wanted that they be impleaded as Defendants in the suit.

The learned Assistant District Judge, on consideration of the petition and hearing the learned Advocates for the parties, observed that as the loan had been taken by the Defendant describing himself as the proprietor of the business and the property in question, there was no necessity of impleading the Petitioners as Defendants and rejected the petition by the impugned order dated 25.2.89, which is the subject matter of challenge In the present revision petition.

Heard Mr. G.N. Sahewalla, learned Counsel for the Petitioners who submits that the Petitioners are necessary parties. The but loess and property In question being the property of HUF of which that Petitioners are coparceners along with the Defendant who is a Karta, their presence is necessary in order to enable the Court to effectually and completely adjudicate upon and settle the question Involved in the suit. Mr. B.K. Goswami, learned Counsel for the opposite party, on the other hand, submits that the suit can very well be decided in the absence of the Petitioners and they would in no way be affected by a decree passed in the suit. If the Petitioners by the decree are aggrieved, they may go for an independent suit or challenge the execution of the decree. In reply, Mr. Sahewalla submits that that will amount to multiplicity of proceeding which is intended to be avoided by Order 1 Rule 10 of Code of Civil Procedure. According to him, the Plaintiff will in no way be prejudiced by impleading the Petitioners as Defendants in the suit. On the other Stand, their presence would enable the Court to decide the dispute effectively.

I have considered the rival submissions of the learned Counsel of the parties Order 1 Rule 10(2) provides:

Court may strike out or add parties. - (2) 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 he 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 of 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.

From a plain reading of this rule it is clear that it empowers the Court to and a person as party to the suit if it is satisfied that (1) he ought to have been joined as Plaintiff or Defendant and bat not been joined or (2) his presence is necessary to enable the Court to make a complete adjudication upon the questions involved in the suit. Evidently, the power of the Court extends to addition of both "necessary" and ''''proper" parties. The words "ought to have been joined" apparently refer to "necessary parties" in the sense that the suit cannot be effectively disposed without the presence of such parties. For determining who is a necessary party the following two tests are well-accepted (i) there must be a right to some relief against such party in respect of the matter involved in the proceeding and (ii) it should not be possible to pass an effective decree in the absence of such a party, Benaras Bank v. Bhagawan AIR 1947 All 18 FB; approved by the Supreme Court in Deputy Commr., Hardoi, in charge Court of Wards, Bharawan Estate Vs. Rama Krishna Narain and Others, One of the tests for determining the effectiveness of a decree is whether the decree can be executed without the presence of the party proposed to be added as regards the property to be decreed in favour of the Plaintiff. The second expression "whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit", on the other hand, have reference to proper parties. The discretion of the Court in the matter of addition of such parties is quite wide and exercise thereof depends upon the satisfaction of the Court that the presence of such party would advance the total and satisfactory adjudcation of the sub matter of the suit. The expression all questions involved in the suit, cannot be given too restricted a meaning as the basic object of the provision is that the real dispute in the suit should be decided in the presence of all the parties interested in the dispute and for the purpose they should be brought before the Court. This expression therefore has to be given wider meaning. Avoidance of multiplicity of proceedings is also on of relevant considerations in exercising discretion in the matter. If by impleading a party, all controversies arising in a suit and issues arising thereunder may be finally determined and set at rest, thereby avoiding multiplcity of suits over a subject matter which could be decided in the pending suit itself, the Court should exercise its discretion and allow addition of the party.

These are some of the broad propositions that emerge from order 1 Rule 10(2). No test of universal application can be laid down in this regard. The determination of the question whether a party should be Added at a Plaintiff of Defendant or not will depend upon the facts of each individual case. However, the wide discretion vested in the courts-must be exercised judiciously with due care and caution-only with a view to achieving the object specified, in the statute. It should not be exercised as a matter of course without proper regard to the statutory requirement. But once the requisite circumstances are found to exist, the court cannot refuse to exercise the power singly because its exercise is loft to its discretion.

I now propose to examine the facts of the present case in the light of the law discussed above. The relief sought for in the suit is a decree for recovery of money and also for the sale of mortgaged property. The mortgaged property is claimed to be property of a HUF And not of the Defendant individually. The Petitioners claim to be coparceners of the said HUF and, as such, they claim to be necessary parties. The objection of the opposite parties is that the Defendant while mortgaging the property did not state this and described himself as a proprietor As, such, the Petitioners need not be Impleaded as parties

Evidently, the ownership of the suit property is in dispute. If the claim; of the Petitioners is found correct, no effective, decree for sale of the said property can be passed in the absence of the Petitioners. On the other hand, by impleading them as Defendants all controversies raised in the suit and all issues raised thereunder may be effectually and completely determined and set at rest. This will also avoid multiplicity of suit or proceedings over a subject matter which, can, be very well decided in the suit before the court itself. Under such circumstances, I do not find any reason why the prayer of the Petitioner�s for impleading them as Defendants should be turned down. In my opinion, this case squarely falls under Sub-rule (2) of Rule 10 of order 1 of CPC and the learned court below committed an error in rejecting the prayer.

In view of the aforesaid discussion the impugned order dated 25.2.89 passed by the learned Assistant District Judge, Sibsagar is set aside and he is directed to implead the Petitioners as Defendant No. 2 and 3 in Title Suit No. 79/87.

Mr. A.C. Sarma, learned Counsellor the Bank, submits that the Petitioners should be directed to furnish the names of all the coparceners or members of the HUF claiming any interest in the suit property which is subject matter of the suit to avoid any such further positions, I feel that this prayer may be made before the trial court who shall consider the matter in accordances with law and pass necessary orders.

In the result, the petition is allowed. No order is to costs.