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1983 DIGILAW 172 (ALL)

Manmohan Singh v. State of Uttar Pradesh

1983-02-24

I.B.SINGH

body1983
JUDGMENT I.B. Singh, Member. - This is a plaintiff's revision against order dated February 7, 1978 passed by trial court ordering Bhimsen to be impleaded as defendant and against order dated March 29, 1978 passed by learned Additional Commissioner, Jhansi Division, Jhansi, dismissing revision No. 23 of 1977-78/Banda. 2. Plaintiff filed the suit on October 29, 1975. Bhimsen moved application on April 30, 1976 for being impleaded as disputed plot No. 164 was joint with his plot No. 163 and he was in possession. Objection was filed. Khasra extract Fasli issued on September 22, 1976 was filed by Bhimsen in which plot No. 164 is recorded to be Samil in plot No. 163 and Bhimsen is recorded to be in possession in remarks column. Another Khasra extract of that Fasli issued on November 10, 1975 was filed by plaintiff in which no such entry exists. 3. I have heard the learned counsel for the parties and have perused the record. 4. It has bee argued relying 1972 R.D. 42 and A.I.R. 1975 Punjab 184; that no prima facie case by Bhimsen was made out for being impleaded as a defendant and the plaintiff cannot be burdened for litigating with him whose entry is without date, diary number or P.A. 10 in the Khasra extract filed by him; that learned Additional Commissioner wrongly relied on A.I.R. 1971 Orissa 44 in which principles were laid down as to who can be pleaded under order 1 rule 10 of the C.P.C. and the other ruling cited by the lower appellate court does not exist. 5. It has been argued in reply that the plaintiff himself is not recorded over the disputed land and seeks relief of declaration and relief for being recorded over the disputed land. The discretion applied by both the courts below in favour of Bhimsen requires no interference as the case is at the initial stage which not the case with the case of 1972 R.D. page 432 that the claim of the defendant based on Khasra entry is better than the claim of the plaintiff who is not recorded at all and the multiplicity of suit has been avoided by the courts below that the order is interlocutory. 6. 6. It has been held in Ram Chhor v. Bhagwandas, 1972 R.D. 432 as follows:- "An application was filed on behalf of a third person to the effect that certain person be impleaded as one of the defendants. This prayer was granted by the trial court. Under order 1 Rule 10 sub-rule 1972 R.D. 432 courts have been given the power to implead any person as plaintiff or defendant who ought to have joined or whose presence before the court may be necessary to enable the court to decide the matter completely and effectively. But to exercise jurisdiction in this regard very carefully so that a plaintiff may not be forced to fight his case against all and sundry against whom he may have claimed no relief. In this particular case the proceedings had almost come to an end when the trial court passed the impugned order. It has, therefore, acted improperly in the exercise of its jurisdiction by ordering that the opposite-party by impleaded as defendants. The words 'questions involved in the suit, occurring in O.I, R.10(2) can have only one meaning, that is, question arising from the pleadings of the parties, and not the questions arising from the claims of any third person. Any hesitation on the part of a court to proceed with a case on the ground that somebody has not been joined or whose the pleadings of the parties will not be justifiable in law. The courts enjoy limited power under Order 1, Rule, 10 sub-rule (2) limited in the sense that they can implead those parties the joinder of which appears necessary from the pleadings of the parties actually before them. Hence in the instant case the trial court has acted without jurisdiction in impleading the opposite party in this case." 7. It has been held in Arjan Singh v. Kartar Singh and others A.I.R. 1975 Punj. and Harayana 184 as follows:- "O. 1, R. 10(2) gives wide discretion to the court to meet every case of defect of parties, but the power must be exercised on judicial principles and not arbitrarily. One of the well-known principles is that the person to be added must be necessary to effectually and completely adjudicate upon and settle all the points in the suit and that a party should not be added merely to avoid multiplicity of suits. One of the well-known principles is that the person to be added must be necessary to effectually and completely adjudicate upon and settle all the points in the suit and that a party should not be added merely to avoid multiplicity of suits. A party is a necessary part to a suit in whose absence the suit cannot legally proceed. Another principle is that the discretion should be exercised in a reasonable manner so as not to cause inconvenience or embarrassment to any of the parties. Before directing a party to be impleaded, the court can insist that it should be prima facie satisfied about the bona fides of the applicant, the plausibility of the applicant's claim and the genuineness of his/her interest in the litigation." 8. It has been held in Raitari Prasad Naik and others v. Nuakant Nayak and others, A.I.R. 1971 Orissa 44 as follows:- "The expression "question involved in the suit" in O. 1, R. 10(2) need not be confined only to questions as between the parties to the litigation. Third parties are also entitled to be impleaded under the rule, as parties to the suit provided (i) there must be a right to some relief against the party not should be necessary in order to enable the court to be effectually adjudicated upon and settle all questions involved in the suit. It cannot therefore be said that a triangular duel is wholly out of the purview of O. 1, R. 10." 9. The order passed by the trial court does not amount to introductory order. It si such an order that a party has been ordered to be impleaded who has not even established any prima facie title except entry in the recent Khasra of Shamil number which was obtained after the suit was filed and no such entry existed on November 10, 1975 when Khasra extract was issued to the plaintiff. The Khasra extract filed by Bhimsen is dated September 25, 1976 in which Shamil number and possession of Bhimsen in this plot has been written abruptly, therefore, it is not such a case that he has claimed right based on even prima facie evidence. In such cases ordering impleadment just to avoid multiplicity have been depricated by Hon'ble High Court. The Khasra extract filed by Bhimsen is dated September 25, 1976 in which Shamil number and possession of Bhimsen in this plot has been written abruptly, therefore, it is not such a case that he has claimed right based on even prima facie evidence. In such cases ordering impleadment just to avoid multiplicity have been depricated by Hon'ble High Court. It is true that the plaintiff also is not recorded and had claimed relief from the basis of long possession but only if such impleadment is allowed then it may happen that several other persons may come and claim right on the basis of possession only and if they are also added the plaintiff will be harassed to litigate as the matter would become very much complicated. 10. No relief against Bhimsen was asked in the present case and Bhimsen was not a necessary party. In the circumstances of the case as the case was liable to be decided even without impleading Bhimsen, therefore, Bhimsen does not come under the category of necessary party. Therefore, the orders passed by both the courts below are highly erroneous. The rulings of Orrisa (supra) does not squarely apply to the present claimed title and interest against contesting plaintiff and defendant. His claim was based on proper prima facie case which is not the case at present. 11. In view of the matter the application of Bhimsen for being impleaded as the basis of unreliable Khasra entry of recent year is liable to be rejected and the orders passed by both the courts below are liable to be set aside and this revision is liable to be allowed. 12. In view of the above, this revision application is allowed. The orders passed by both the courts below are set aside and the application of Bhimsen dated April 20, 1976 for being a party is rejected. 13. Let the trial court's record be sent to it for expeditious disposal of the case.