Bhagwan Prasad v. Mata Prasad — 1977 DIGILAW 696 (ALL)

ORDER T.S. Misra, J. - The suit giving rise to this revision was filed by Ram Het, Paras Ram, Sangam Lai, Ram Harakh, Husaini Prasad and Ram Achhaibar against the opposite parties 1 to 5 for a permanent injunction restraining the defendants opposite parties not to interfere with the public passage in question and not to put any impediments in the user of that passage by the plaintiffs. Ram Het died after the institution of the suit and in his place Bhagwan Prasad, Ram Baran and Smt. Malti, the present petitioners 1 to 3, have been brought on the record. Ram Harakh is also dead and it was stated at the Bar that his legal representatives were not substituted. Husaini Prasad the plaintiff No. 5 is impleaded as opposite party No. 6 in this revision. 2. It appears that during the pendency of the suit Husaini Prasad entered into a compromise with the defendants substantially admitting the claim set up by the defendants. That compromise has not so far been verified and no decree has been passed in terms thereof. 3. The remaining plaintiffs filed an application before the trial court for striking out the name of Husaini Prasad from the array of the plaintiffs and transposing him to the array of the defendants. A consequential amendment to that effect was also sought for. This application was opposed by the defendants. The ground on which that application was moved was that Husaini Prasad having entered into a compromise should not be retained as plaintiff inasmuch as he has made statement of facts in the compromise petition which run counter to the averments made in the plaint. It seems from the order of the trial court that Husaini Prasad had stated before the trial court that he had never signed the plaint in which he was impleaded as plaintiff No. 5. He also said that he had filed the compromise and that the application moved by the plaintiffs for transposing him to the array of the defendants should be rejected. The defendants contested the application of the plaintiffs stating that it is no ground for transposing a person from the side of the plaintiffs to the array of the defendants that the person concerned has entered into a compromise with the defendants. The defendants contested the application of the plaintiffs stating that it is no ground for transposing a person from the side of the plaintiffs to the array of the defendants that the person concerned has entered into a compromise with the defendants. Further, it was stated that the remaining plaintiffs have no cause of action against Husaini Prasad, hence he should not be impleaded as one of the defendants. 4. The trial court while rejecting the application observed: "There is nothing in C/56 which can disclose what type of cause of action arose against plaintiff No. 5 to other plaintiff's 1 to 3 and 6. If plaintiff No. 5 filed compromise with defendants this only cannot be a ground for striking out his name from plaintiffs list and impleading him as defendant." Thus both the grounds on which the application was opposed by the defendants found favour with the trial court. Against that order, a revision was preferred before the learned District Judge who by his order dated 17th Nov. 1977 directed the applicants to present their memorandum of revision before this Court on 5th Dec. 1977. That is how this revision has been filed. 5. For the applicants it was urged that as Husaini Prasad had entered into a compromise with the defendants virtually admitting the case set up by the defendants and almost resiling from the facts stated in the plaint, it was fit and proper that he should have been transposed to the array of the defendants because if that was not done, the plaintiffs would be greatly prejudiced in the conduct of the suit, production of evidence and in cross-examination of the witnesses. It was also urged that Husaini Prasad had signed the plaint but was wrongly denying his signature on the plaint. On that ground also it was submitted that Husaini Prasad should now be transposed to the array of the defendants. 6. The case of the plaintiffs, as pointed out earlier, was, in brief, that the land in question was a public pathway used from time immemorial by the plaintiffs as a passage and the defendants had wrongfully put obstruction on that passage thereby interfering with the genuine user of that land by the plaintiffs and the persons claiming through them. These averments were set out in the plaint in which Husaini Prasad is shown as plaintiff No. 5. These averments were set out in the plaint in which Husaini Prasad is shown as plaintiff No. 5. The applicants before me say that Husaini Prasad had signed the plaint and this fact is now wrongly being denied by Husaini Prasad. At the same time Husaini Prasad has filed a compromise application in the suit accepting the case set up by the defendants in defence. It has, therefore, to be seen whether Husaini Prasad was "improperly joined." 7. Under O. 1 R. 10 (2) of the Civil P. C. the court may at any stage of the proceedings either on the application of any party or suo motu order the name of any party improperly joined whether as plaintiff or defendant to be struck out and 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 the questions involved in the suit be added. Striking out the name of a party in the suit may be made if he appears to the court at any stage of the proceedings that the party has been improperly joined, or in other words that the joining of that person in the suit shall not be proper. Again, a party may be added as a plaintiff or defendant in the suit if his presence before the court is necessary effectually and completely to adjudicate upon and settle all the questions involved in the suit. If the court finds that a person should be impleaded so that the dispute raised before the court may be decided effectually and completely, the court may either on the application of any party to the suit or of its own add that party. We have to apply these principles to the facts of the instant case. Husaini Prasad was joined in the suit as a plaintiff. His house abuts the passage in question. Initially he stated in the plaint that the land in dispute is a public passage. Now in the compromise petition he says to the contrary which obviously is not the case set up by the other plaintiffs. Husaini Prasad was joined in the suit as a plaintiff. His house abuts the passage in question. Initially he stated in the plaint that the land in dispute is a public passage. Now in the compromise petition he says to the contrary which obviously is not the case set up by the other plaintiffs. Joining of persons as plaintiffs would not be proper if one plaintiff makes averments contrary to the averments set up by the other plaintiffs or if one plaintiff sets up a title which is inconsistent with the title of other plaintiffs. Husaini Prasad has now set up a different story from what was alleged in the plaint in Which he is mentioned as plaintiff No. 5. The trial court has observed in its order that Husaini Prasad contended that he had never signed the plaint. This observation of the trial court seems to be erroneous. The learned counsel for the defendants 1 to 5 fairly brought to my notice that Husaini Prasad had not stated in his objections that he had not singed the plaint. The learned counsel also quite fairly produced before me a copy of the objections filed by Husaini Prasad before the trial court. I have gone through it. In paragraph 1 of the said objections it was stated by Husaini Prasad that he was wrongly impleaded as a plaintiff in the suit by other plaintiffs and that the other plaintiffs had obtained his signatures on the plaint by fraud. These averments in the objection raised by Husaini Prasad go to show that he was improperly joined as plaintiff in the suit. The question which now remains to be decided is as to whether the name of Husaini Prasad should be struck out from the array of the plaintiffs and whether he should be transposed to the array of the defendants. Since he has been improperly joined there is no question of retaining him in the array of the plaintiffs. Husaini Prasad himself says that he was wrongly impleaded as a co-plaintiff and that his signature was obtained by fraud on the plaint. His name from the array of the plaintiff should, therefore, have been struck out. Since he has been improperly joined there is no question of retaining him in the array of the plaintiffs. Husaini Prasad himself says that he was wrongly impleaded as a co-plaintiff and that his signature was obtained by fraud on the plaint. His name from the array of the plaintiff should, therefore, have been struck out. Whether he should be transposed to the array of the defendants would depend on the question as to whether his presence before the court is necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. Husaini Prasad has his house near the land claimed by the plaintiffs as public passage. He has now stated in his compromise that the said land is not a public passage. No doubt the other plaintiffs have not stated in their application that Husaini Prasad is also now obstructing them from using the land in question as public passage but it appears to me on the facts of this case as stated hereinabove, that the presence of Husaini Prasad in the suit would all the same be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. The transposition of a plaintiff to the array of the defendants may be made suo motu by the court either under O.1 R. 10 of the Civil P. C. or in its inherent jurisdiction. (See Saila Bala v. Nirmala Sundari Dassi, AIR 1958 SC 394 ). It seems that the suit cannot so conveniently be prosecuted unless the alteration is made. In Oates v. Mooney, (1905-2 Ch. 460) it was pointed out that the general rule is that where co-plaintiffs disagree the name of one is struck out as plaintiff and added as defendant. In Brown v. Sawer ((1841) 3 Beav. 598) one of the plaintiffs withdrew from the suit and forbade his solicitor from taking any further steps therein. The other co-plaintiff moved for liberty to amend by striking out the name of the co-plaintiff who had revoked his authority as plaintiff and adding it as defendant. That was objected to. The Master of the Rolls said: "I think I must make the order.......... The other co-plaintiff moved for liberty to amend by striking out the name of the co-plaintiff who had revoked his authority as plaintiff and adding it as defendant. That was objected to. The Master of the Rolls said: "I think I must make the order.......... The plaintiff who had, in this case, given written instructions to his solicitor, afterwards revokes the authority and prevents the other plaintiff going on with the suit. The case is within the words of the case of Attorney General v. Cooper ((1837) 3 My & Cr. 258, 261); the suit cannot be prosecuted unless the alteration is made and therefore justice will not be done unless the alteration is made." The Master of the Rolls made the order asked for. In the instant case Husaini Prasad came out with the allegation that he was wrongly impleaded as plaintiff and his signature was fraudulently obtained on the plaint. That being so, the other plaintiffs on the record have rightly asked for the alteration, i. e. for the striking out the name of Husaini Prasad as plaintiff No. 5 and for transposing him to the array of the defendants. I have already held above that the presence of Husaini Prasad is necessary for complete and effectual adjudication of all. 8. It was then urged by the learned counsel for the opposite-parties 1 to 5 that the revision petition itself is not maintainable inasmuch as the impugned order did not amount to "case decided." I am unable to accept the contention. A case may be said to be decided if the court adjudicates for the purpose of the suit some right or obligations of the parties in controversy (See Baldevdas Shivlal v. Filmistan Distributors (India) Pvt. Ltd. ( AIR 1970 SC 406 ). In S.S. Khanna v. F.J. Dillon ( AIR 1964 SC 497 ): (1963 All LJ 1068) it was laid down: "The expression "case" is a word of comprehensive import: it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceedings in a civil court. In S.S. Khanna v. F.J. Dillon ( AIR 1964 SC 497 ): (1963 All LJ 1068) it was laid down: "The expression "case" is a word of comprehensive import: it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceedings in a civil court. To interpret the expression "case" as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence to which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed and may result in the perpetration of gross injustice. The expression "case" includes a suit, but in ascertaining the limits of the jurisdiction of the High Court, there &would be no warrant for equating it with a suit alone. The power of the High Court under Section 115 is exercisable in respect of "any case which has been decided". The meaning of expression "case" must be sought in the nature of the jurisdiction conferred by S. 115 and the purpose for which the High Courts were invested with the power." In Atma Ram v. Beni Prasad ( AIR 1935 PC 185 ): 1935 All LJ 1124) it was held that where a Judge deals with an application to be added as party summarily and dismisses it, he acts with material irregularity. In the instant case the impugned order was passed on an application moved under O. 1 R. 10(2) of the Civil P. C. The plaintiffs allege that Husaini Prasad should no more remain joined with them as plaintiff and that he should now be transposed to the array of the defendants. The trial court has declined to grant the relief. This order is not of such a nature where it could be said that no right or obligation of the parties in controversy has been adjudicated upon. Whether a person should remain joined as a plaintiff with other persons is a matter which affects the right of a party to maintain a suit. An order disposing of such an application would, therefore, amount to a case decided and a revision from that order would, therefore be maintainable. 9. Whether a person should remain joined as a plaintiff with other persons is a matter which affects the right of a party to maintain a suit. An order disposing of such an application would, therefore, amount to a case decided and a revision from that order would, therefore be maintainable. 9. It was next urged that the trial court had the jurisdiction to pass the impugned order and there was nothing on the record to suggest that the order has been passed by the court acting illegally or with material irregularity in the exercise of its jurisdiction. I am not impressed by this argument as well. As pointed out in Atma Ram v. Beni Prasad (1935 All LJ 1124) (supra) the impugned order has been passed by the trial court in a manner not warranted by law. It has not applied its mind to the facts of the case. It has stated in its order that Husaini Prasad had denied his signature on the plaint whereas Husaini Prasad had in fact admitted his signature on the plaint and had stated that his signature was obtained by fraud. The case, therefore, falls within the ambit of cl. (C) of S. 115 of the Civil P. C. 10. No other point was urged. 11. In the result, the revision petition is allowed with costs. The order passed by the trial court is set aside. The application of the plaintiffs is allowed. The name of Husaini Prasad is struck out from the array of the plaintiffs and he is transposed to the array of the defendants. The amendment shall be effected in the plaint accordingly.