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2000 DIGILAW 622 (KAR)

Lakshmamma v. Venugopal

2000-09-05

H.N.TILHARI

body2000
ORDER Hari Nath Tilhari, J.—This Revision Petition arises from the judgment and order dated 19.11.1999, whereby the Trial Court rejected the revision-Petitioners' application for impleadment as a party in Original Suit O.S. No. 87 of 1999. 2. The facts of the case in nutshell are: that, the Plaintiff-Venugopal filed a suit for partition claiming 1/4th share, in that suit, Plaintiff impleaded his father and three brothers as the parties. Plaintiff claimed 1/4th share. During pendency of the suit, the revision-Petitioners, who are the sisters of the Plaintiff, and Defendant-Respondent Nos. 3 and 4, and daughters of Defendant-Respondent No. 2, filed the application under Order 1, Rule 10 of the Code of Civil Procedure with the allegations to the effect that they are the daughters of Sri Lakkegowda, the 1st Defendant and sisters of Venugopal, Venugopal is the Plaintiff in the suit. The applicants further submitted that Plaintiff has not impleaded them as parties, though the applicants have got interest in the matter, and also have been entitled to share in the properties. 3. The learned Counsel for the revision Petitioners contended that, as the applicants claimed they are entitled to share, in the suit properties and they should have been given opportunity to place their case by being impleaded as parties, and the Court below acted illegally in rejecting the application for impleadment. Learned Counsel contended that the applicants were necessary, and atleast the proper parties for final determination of the matter in the partition suit, as to: Whether what are the shares of applicants in the properties, and whether the applicants are entitled to share or not? Learned Counsel for the revision Petitioners contended, that as such the Court below illegally exercised the jurisdiction vested in it under Order 1, Rule 10 by rejecting their application. This contention of the revision Petitioners has hotly been contested on behalf of the Respondents by Sri B.G. Sridharan assisted by Miss. Veena. Sri B.G. Sridharan, contended that applicants are the married daughters, and they are not entitled to any share prima facie, and therefore the Court below, learned Counsel contended did not commit any error in rejecting the application. 4. I have applied my mind to the contentions made by the learned Counsel for the parties. Veena. Sri B.G. Sridharan, contended that applicants are the married daughters, and they are not entitled to any share prima facie, and therefore the Court below, learned Counsel contended did not commit any error in rejecting the application. 4. I have applied my mind to the contentions made by the learned Counsel for the parties. Principle under Order 1, Rule 10, is that if the presence of a party is either necessary, as a necessary party or the proper party before the Court, and is required for final determination of the matter between the parties and dispute between the parties, the Court has got power to implead, so it may effectually and completely consider and determine the matter, and settle the questions involved in the suit. Order 1, Rule 10(2) reads as under: 2) Court may strike out or add parties. 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 be 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 or Defendant, or whose presence before the Court may be necessary in order to enable the Court to effectually and completely, to adjudicate upon and settle all the questions involved in the suit, be added. 5. The basic criteria to determine; Whether the parties are necessary party or a proper has well been explained by their Lordships of Supreme Court in the case of Razia Vs. Anwar Begum, AIR 1958 SC 806, which has been followed by their Lordships of Supreme Court subsequently in Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others, (1992) 94 BOMLR 853, and in the case of Savitri Devi Vs. District Judge, Gorakhpur and Others, AIR 1999 SC 976 , wherein para 8, their Lordships observe as follows: The plea raised by Respondents 3 to 5 that they were bona fide transferors is for value in good faith may have to be decided before it can be held that the sales in their favour created no interest in the property. District Judge, Gorakhpur and Others, AIR 1999 SC 976 , wherein para 8, their Lordships observe as follows: The plea raised by Respondents 3 to 5 that they were bona fide transferors is for value in good faith may have to be decided before it can be held that the sales in their favour created no interest in the property. The aforesaid questions have to be decided by the Court either in the suit or in the application filed by Respondents 3 to 5 for impleadment in the suit. If the application for impleadment is thrown out without a decision on the aforesaid questions, Respondents 3 to 5 will certainly come up with a separate suit to enforce their alleged rights which means multiplicity of proceedings. In such circumstances, it cannot be said that Respondents 3 to 5 are neither necessary nor proper parties to the suit. 9. Order 1, Rule 10 Code of Civil Procedure, enables the Court to add any person as party at any stage of the proceedings if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision in the Code. 10. In Khemchand Shankar Choudhari and Another Vs. Vishnu Hari Patil and Others, AIR 1983 SC 124 , this Court held that a transferee pendente lite of an interest in an immovable property which is the subject-matter of suit is a representative in interest of the party from whom he has acquired that interest and has a right to be impleaded as a party to the proceedings. The Court has taken note of the provisions of Section 52 of the Transfer of Property Act as well as the provisions of Rule 10 of Order XXII, Code of Civil Procedure. The Court said: ... It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard he has got to be so impleaded and heard... 11. In Ramesh Hirachand Kundanmal Vs. The Court said: ... It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard he has got to be so impleaded and heard... 11. In Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others, (1992) 94 BOMLR 853, this Court discussed the matter at length and held that though the Plaintiff is a 'dominus litis' and not bound to sue every possible adverse claimant in the same suit, the Court may at any stage of the suit direct addition of parties and generally it is a matter of judicial discretion which is to be exercised in view of the facts and circumstances of a particular case. The Court said (Para 8 of AIR): The case really turns on the true construction of the rule in particular the meaning of the words "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". The Court is empowered to join a person whose presence is necessary for the prescribed purpose and cannot under the rule direct the addition of a person whose presence is not necessary for that purpose. If the intervener has a cause of action against the Plaintiff relating to the subject-matter of the existing action, the Court has power to join the intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions. The Court also observed that though prevention of multiplicity of actions cannot be said to be main object of the rule, it is a desirable consequence of the rule. The test for impleading parties prescribed in Razia Begum Vs. Sahebzadi Anwar Begum and Others, AIR 1958 SC 886 , that the person concerned must be having a direct interest in the action was reiterated by the Bench. 6. It will be appropriate to refer to the following observations of the Hon'ble Supreme Court in context of Order 1, Rule 10(2) Code of Civil Procedure in the case of Razia Begum Vs. 6. It will be appropriate to refer to the following observations of the Hon'ble Supreme Court in context of Order 1, Rule 10(2) Code of Civil Procedure in the case of Razia Begum Vs. Sahebzadi Anwar Begum and Others, AIR 1958 SC 886 : There cannot be the least doubt that it is the firmly established as a result of judicial decisions that in order that person may be impleaded as a party to a suit he should have a direct interest in the subject-matter of litigation whether it raises questions relating to movable or immovable property. Their Lordships further observes: To such a suit for mere declaration, any person denying or interested to deny existence of any legal character or alleged right to any property would be necessary party. Their Lordship laid it down that: Where subject matter of a litigation is declaration of status or legal character, the rule of direct or present interest may be relaxed and suitable cases where Court is of the opinion that by adding that party it would be in better position to effectually and completely adjudicate upon the controversy. Their Lordships interpreted the expression: Who ought to have been joined' used in earlier part of Rule 10(2) of Order 1 of the Code and observed that, these expressions, apparently have reference to necessary parties in the sense that suit cannot effectively be disposed of without their presence on the record. In the present case the applicants, i.e. revision Petitioners claimed themselves to daughters of Lakegowda and to be Class I heirs and entitled to their shares in their own right in suit properties for the partition and separate possession of which suit had been filed by Plaintiff-Respondent No. 1. 7. Whether the person claiming to be made a party finally fails to establish the right or interest is a different matter, that has to be considered finally after the impleadment of that party, after his or her being given opportunity of pleading his or her case, what right he or she claims. 7. Whether the person claiming to be made a party finally fails to establish the right or interest is a different matter, that has to be considered finally after the impleadment of that party, after his or her being given opportunity of pleading his or her case, what right he or she claims. That, as in the present case if the claim of certain interest or right is made by the applicant, and it is established, then, it will have any effect on determination of his/her share and on that of others in the property finally and effectively and all the questions as right of parties in suit properties cannot be decided and determined finally without presence of the applicants. In this view of the matter, the applicants-revision Petitioners ought to have been considered, and do appear to be or atleast proper parties for the decision of the matter. 8. Any of the above observations should not be taken, to be holding that the applicants have got a right or share in the property or they have not got any share. Whether applicants establish their claim of right or share in suit property as mentioned above will have to be decided by the Trial Court after impleadment of the applicants as the parties, and they are being allowed to file their written statement. 9. In my opinion, Trial Court acted illegally in rejecting the application for impleadment made by the revision Petitioners, who are none-else, but the daughters of Defendant-Respondent No. 2, and sisters of Plaintiff, and Defendants 2 and 3, about which position there is no dispute amongst the parties. 10. In this view of the matter, as I am of the opinion, Court below illegally refused to implead the applicant as a party, and its refusal would have resulted in multiplicity of legal proceedings. The revision petition, as such has to be allowed. 11. The revision petition is allowed. The order passed by the Trial Court rejecting the application under Order 1, Rule 10, moved by the revision Petitioners is set aside. The application under Order 1, Rule 10, moved by the revision-Petitioners/applicants, for being impleaded as Defendants in the suit, as such is hereby allowed. 12. Let the applicants be impleaded, and their names be incorporated in the plaint or the suit, as Defendants 4 and 5. The application under Order 1, Rule 10, moved by the revision-Petitioners/applicants, for being impleaded as Defendants in the suit, as such is hereby allowed. 12. Let the applicants be impleaded, and their names be incorporated in the plaint or the suit, as Defendants 4 and 5. The Plaintiff is directed to incorporate the names of present revision Petitioners, as Defendants 4 and 5. The Plaintiff will supply copies of two sets of the plaint, as modified and corrected to the revision Petitioner's Counsel in the Court below, and thereafter the Trial Court will fix a date for the newly added Defendants to file before it, their written statements. The Plaintiff will also be given opportunity if there arises any need or request is made for being permitted to file any additional pleadings by way of replication, and thereafter if any new issues arise from the pleadings may be framed and thereafter parties shall be permitted, to lead the evidence as well and then, suit shall be decided accordingly. Thus revision is allowed. Costs made easy.