Research › Browse › Judgment

Karnataka High Court · body

1999 DIGILAW 381 (KAR)

Thimmanna v. B. T. Sharada

1999-07-24

H.N.TILHARI

body1999
ORDER Hari Nath Tilhari, J.—This revision petition arises from the order dated 23rd July 1996 passes by the Second Additional Civil Judge, Bangalore Rural District, Bangalore, in O.S. No. 258 of 1992 on I.A.3 allowing the Plaintiff's (1st Respondent herein) application filed under Order 1, Rule 10 read with Section 151 of the Code of Civil Procedure for permission to add or implead the proposed additional Defendants as Defendants 2 to 9. The applicant asserted that the proposed Defendants were necessary and proper parties for final adjudication of the matter. 2. The said application was contested by the proposed Defendants 1 to 7 contending that they have not executed any agreement in favour of the Plaintiff, nor they authorised Defendant-1 to enter into such contract. So they are not necessary parties. 3. The trial Court considered those contentions and opined that for final determination of the controversy between the parties, the proposed Defendants were necessary and proper parties and allowed the application for impleading of the proposed additional Defendants. 4. Feeling aggrieved from the said order of the II Additional Civil Judge, Bangalore Rural District, Bangalore dated 23rd, July 1996, the proposed additional Defendants have come up before this Court in revision under Section 115 of the Code of Civil Procedure. 5. A preliminary objection had been raised by the learned Counsel for the Respondents to the maintainability of the revision petition contending that by this order no rights of the parties have been decided, only the proposed additional Defendants have been allowed to be impleaded as parties in the case, so that there may be final adjudication of the matter and particularly to the effect whether Defendant-1 had executed the agreement to sell for himself and on behalf of other Defendants and other heirs of late Smt. Kempamma. The learned Counsel contended that Defendants believe that they have not executed the agreement nor authorised Defendant-1 to enter into the contract of sale or agreement in favour of the Plaintiff, that question has to be decided and that is why they have been impleaded, or that they may contest and answer the Plaintiff's case before any decree is passed against the Plaintiff. For the present, no rights of the parties has been decided. Impleadment has only been allowed for final determination of the suit or dispute in the suit. For the present, no rights of the parties has been decided. Impleadment has only been allowed for final determination of the suit or dispute in the suit. The learned Counsel contended that the order impugned does not amount to a case decided. That the order directing the impleadment of the parties for the proper determination, cannot be said to amount to a case decided. 6. I have applied my mind to the above contentions. 7. Firstly the order appears to be interlocutory order and it is with respect to the final determination of the matter and in the progress of the suit with the object that the additional proposed Defendants may also be heard in the matter and if they want to challenge the Plaintiff's claim or deny the authority of Defendant No. 1 to execute the deed either on his behalf or on behalf of the proposed additional Defendants they may do so and that question is yet to be decided. But the order allowing the impleadment cannot be said to amount to a case decided. The expression "order" has been defined under Sub-section (14) of Section 2 of the Code of Civil Procedure indicating that "order" means the formal expression of any decision of a Civil Court which is not a decree. The expression used in the definition of order show and reveal that order is nothing but formal expression of any decision of a Civil Court. The decision of some rights of the parties made in relation to the proceedings of the suit. Here no right has been decided and only they have been allowed to be impleaded as the Court exercising its judicial discretion considered it proper and necessary to implead them that controversy involved or dispute involved may be effectively decided and to avoid multiplicity of legal proceedings. 8. The learned Counsel for the revision Petitioners made reference to certain decisions of the Chief Court of Oudh. I called upon the learned Counsel for the revision Petitioners to satisfy as to how the order impugned in this revision amounts to a case decided. 9. The learned Counsel for the revision Petitioners submitted that no doubt the suit was pending and the case has not been decided. Later on he submitted that the Defendants had not executed any deed and so they are not necessary parties. That may be so. 9. The learned Counsel for the revision Petitioners submitted that no doubt the suit was pending and the case has not been decided. Later on he submitted that the Defendants had not executed any deed and so they are not necessary parties. That may be so. I don't express any opinion, but the plea of the Plaintiff has been that the Defendants have executed the agreement in his favour and he has acted, according to them, for the family. This plea had to be decided after giving opportunity to necessary parties to participate or to put their case. In my view, the order impugned in this revision i.e., allowing impleadment application of the proposed Defendants cannot be said to amount to a case decided. When I so opine, I find support for my view from the decision of the Division Bench of the Chief Court of Oudh in the case of Thakur Chandra Pratap Singh Vs. Thakur Bindeshwari Prasad Singh and Anr. AIR 1942 Oudh 340. The Division Bench of the Oudh Chief Court observed that "where a distinction ought to be drawn between a case, where a person applies to a Court to be made a party and his application is refused and a case where the application granted. When the application is refused, a case is decided, so far as that party is concerned, but not to whom he is made a party. Their Lordships held that the word adding alone did not amount to a case decided and therefore the revision has not been maintainable. 10. In an earlier Division Bench decision viz., Brij Manohar and Ors. Vs. Ramanand and Anr, AIR 1939 Oudh 102, the Division Bench consisting of Chief Justice Thomas and Yorkh, J. observed as under: In the first place, we are of opinion that the order making Bhaipa Hari Saran Das a party is not appealable as it could only be appealable as an order and an order under Order 1, Rule 10 is not appealable as it does not find a place in Order 43, Rule 1. It is also not one which can be assailed in revision, because it is clearly an interlocutory order. 11. Their Lordships held that the interlocutory order does not amount to a case decided. It is also not one which can be assailed in revision, because it is clearly an interlocutory order. 11. Their Lordships held that the interlocutory order does not amount to a case decided. No doubt an order refusing to make a person as Defendant has been held amounting to a case decided, but the order allowing amendment or impleadment of a person has to be held as not amounting to a case decided. The revision under Section 115 of the Code of Civil Procedure lies from the order amounting to a case decided and not otherwise. It is the first essential condition that the order challenged by way of revision should be shown to be amounting to a case decided. If the order is only interlocutory order and it does not affect the rights of the parties, but is only for the progress of the case so as to reach final determination. The order does not amount to a case decided. The order being not a case decided the civil revision is not maintainable. 12. The Civil revision petition, as such is hereby dismissed as not maintainable. 13. Further the order impugned it is allowed to stand. No irreparable loss and injury would be nor is likely to cause to the present revision Petitioners, it only extend the benefit to the Defendants that they may have opportunity to contest the claim of the Plaintiff (Respondent-1 herein). 14. Thus, considered, the civil revision petition being misconceived and not maintainable has to be dismissed and it is hereby dismissed. 15. The parties to bear their respective costs.