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2001 DIGILAW 1333 (PNJ)

Krishan Lal v. Rajinder Kumar

2001-11-28

BAKHSHISH KAUR

body2001
JUDGMENT Bakhshish Kaur, J. - An application under Order 1 Rule 10 CPC filed by Krishan Lal-petitioner was dismissed by the learned Additional Civil Judge, Senior Division, Rohtak, on 11.5.2001. Hence, this revision. 2. I have heard Mr. T.S. Dhindsa. learned counsel for the petitioner, Mr. K.L. Malhotra, learned counsel for respondent No. 1 and Mr. O.P. Goyal, Senior Advocate for respondent No. 2. 3. The parties to the suit and the present petitioner are real brothers. They are the sons of Hari Chand. Rajinder Kumar-plaintiff (now respondent) filed a suit for permanent prohibitory injunction restraining Vishal Dhingra from interfering and excluding the joint possession in the premises and also restraining him from making any deal on behalf of the firm without his permission. Krishan Lal filed an application under Order 1 Rule 10 CPC for his impleadment on the ground that he is owner and in joint possession of the entire machinery and in the business of Vishal Dhingra, the plaintiff is also owner and in joint possession of 1/4th share of the factory known as M/s Vishal Auto Industries, Hissar Road, Rohtak, and this fact is obviously mentioned in the suit titled as "Vishal Dhingra v. Hari Chand Dhingra and others" pending in the Court of Additional Civil Judge, Senor Division, Rohtak. In addition to this property, the applicant is also owner and in joint possession of the entire property which is the subject matter of the suit. Therefore, he is necessary party for the just decision of the case, he being the owner and in joint possession thereof. 4. The reasoning given by the trial Court in dismissing the application is two fold. Firstly, an application for appointment of Receiver was decided on 6.3.2000. A day earlier to the decision of this application, applicant was present but no such application under Order 1 Rule 10 CPC was filed. Secondly, the parties have a right to compromise and even costs of machinery and material have been assessed. It is, therefore, clear that the applicant wants to extract money from his two brothers. Thus, it was observed that the applicant is not a necessary party and that the suit can be adjudicated upon in his absence. 5. Mr. T.S. Dhindsa, learned counsel for the petitioner contended that the family of Hari Chand Dhingra comprises of his wife and son Rajinder Kumar, Krishan Lal and Vishal Dhingra. Thus, it was observed that the applicant is not a necessary party and that the suit can be adjudicated upon in his absence. 5. Mr. T.S. Dhindsa, learned counsel for the petitioner contended that the family of Hari Chand Dhingra comprises of his wife and son Rajinder Kumar, Krishan Lal and Vishal Dhingra. They are the members of Hindu undivided family (for short HUF) of Hari Chand Dhingra and he is the karta of the properties owned by the family and the business which is being run by the family as a whole. In the present case filed by Rajinder Kumar-plaintiff, though he is claiming injunction and appointment of Receiver, yet Vishal Dhingra-defendant has raised a specific plea in the written statement that the suit is bad for non joinder of necessary parties. He had also raised a plea that all the properties and business referred to in the land are joint. The parties had not separated from HUF and from their father. Copy of the written statement is Annexure P-2. 6. The defendant who was contesting the suit had taken up a specific plea that the suit was bad for non-joinder of necessary parties and cause of action would therefore imply that the other members of the HUF were also necessary parties to the suit. The petitioner who is one of the members of the HUF and brother of the parties, is staking his claim in the property in question. Can he be kept away from contesting the suit ? Is not the necessary and proper party to the suit ? Whether any effective decree can be passed in the absence of a proper and necessary party particularly in the case in hand where the parties to the suit had allegedly entered into a compromise ? 7. It is a fact that Vishal Dhingra-defendant has also filed a suit for possession by partition of HUF against his father Hari Chand Dhingra and brothers Rajinder Kumar and Krishan Lal-present applicant-petitioner and Smt. Lajwanti, his mother. The details of the property owned by joint Hindu family are fully detailed and described therein. 7. It is a fact that Vishal Dhingra-defendant has also filed a suit for possession by partition of HUF against his father Hari Chand Dhingra and brothers Rajinder Kumar and Krishan Lal-present applicant-petitioner and Smt. Lajwanti, his mother. The details of the property owned by joint Hindu family are fully detailed and described therein. Under para 4(D) reference is made to a residential plot measuring 210 square yards in Mansarowar Colony, Rohtak, having been purchased by the HUF from the joint Hindu family funds, similarly under para 4(G), reference is made to M/s Vishal Auto Industries as under : "Joint Family in 1995 purchased a plot measuring 536 square yards in the name of plaintiff and defendant No. 2 and had constructed factory over there. Site plan is attached as Annexure F." 8. Again in para 5, it is averred that all the properties as detailed in paras above were purchased with the investment of joint Hindu family funds. If the defendant to the suit is asserting his control over factory known as M/S Vishal Auto Industries, existing over the plot purchased by them and also that all the properties were purchased with the investment of joint Hindu family funds, then will it be proper to afford an opportunity to the applicant being one of the members of the HUF to contest and establish his claim especially when without associating the other members of the family the parties to the suit are effecting compromise in respect of the property mentioned therein. 9. Mr. O.P. Goyal, Senior Advocate, for respondent No. 2 contended that the property which is the subject matter of the suit is jointly owned by the plaintiff and defendant and it is not the property of the HUF nor it was purchased from the funds of the HUF. The matter has already been settled by virtue of compromise annexure R-8. It has also been given effect to vide Annexure R-9 as a sum of Rs. 3 lac has been paid. In fact, Vishal Dhingra along with his brother Rajinder Kumar had formed a partnership amongst themselves on 19.4.1995 to run the business in the name of M/s Vishal Auto Industries. He had already filed a civil suit for declaration against Rajinder Kumar-defendant. 10. It is further contended that M/s Vishal Auto Industries through its partners had taken a loan of Rs. He had already filed a civil suit for declaration against Rajinder Kumar-defendant. 10. It is further contended that M/s Vishal Auto Industries through its partners had taken a loan of Rs. 3 lacs from Punjab National Bank, Civil Lines, Rohtak. The original title deed is lying with the Bank and the certificate issued by the Bank is Annexure R-3. On the appointment of the Receiver under the orders of the Court. Vishal Dhingra had challenged the order by filing an appeal and it was dismissed on 31.5.2000 by the Additional District Judge, Rohtak. The civil revision preferred against that order was dismissed by this Court on 23.3.2001. Certified copy of the same is Annexure R-4. Thus, at no stage the applicant preferred to file an application for his impleadment as a party to the suit. The parties have arrived at a compromise particularly a sum of Rs. 1 lac has been paid to Rajinder Kumar-respondent No. 1 i.e. the plaintiff and Rs. 3 lacs were to be paid on 31.5.2000 and the balance on or before 30.7.2001 as per compromise Annexure R-8. The present application has been filed with malafide intention. Since he has got no interest, or right, in the property which is the subject matter of the suit, it cannot be said that no effective decree can be passed in his absence rather he is not a necessary party. 11. Mr. Goyal, learned counsel vehemently contended that the plaintiff is dominus litus. He cannot be compllied to contest against the party against whom no relief is claimed. The petitioner is neither in possession of the property nor any relief is claimed against him, therefore, his presence in the suit is not necessary. He has relied upon Harwant Singh v. Smt. Guro and others, 1999(2) PLJ 297, where it has been observed, that, there cannot be any straight jacket formula for determining such an application. Every case has to be dealt with on its own merits keeping in view the facts and circumstances of the case. The one basic principle for the applicant to succeed in such application is that he must be a necessary party to the proceedings and in whose absence, the Court cannot effectively decide and determine the matters in controversy. 12. Learned counsel for the respondent also placed reliance on Jasdeep Singh v. M.S. Sandhu and another, 2001 PLJ 31. The one basic principle for the applicant to succeed in such application is that he must be a necessary party to the proceedings and in whose absence, the Court cannot effectively decide and determine the matters in controversy. 12. Learned counsel for the respondent also placed reliance on Jasdeep Singh v. M.S. Sandhu and another, 2001 PLJ 31. I have gone through the facts of this case. It is not applicable to the case is hand as it was the case where an application under Order 1 Rule 10 CPC read with Section 151 CPC was filed in the regular second appeal. The appeal was dismissed by this Court on 23.11.1998. Thus, it was observed that once the dispute is over and the Court had decided the matter, thus, an application under Order 1 Rule 10 CPC cannot be maintainable. In the present case, the suit is still pending before the trial Court. Therefore, it cannot be said that the dispute between the parties is over. May be that a compromise has been reduced into writing but this fact itself will not create any hurdle in the way of the applicant from becoming party to the proceedings because the suit has not been disposed of on the basis of the compromise, if any. 13. Mr. T.S. Dhindsa, learned counsel for the petitioner on the contrary has relied on Gurdip Kaur and another v. Dalip Singh and others, 1999(1) PLR 77. In this case, Dalip Singh filed a suit claiming the property as Joint Hindu Family as it was purchased out of the joint funds of the Joint Hindu Family property and Harnam Kaur was only benamidar and the real owner was the Joint Hindu Family. It was, however, observed that even if the property was treated as Joint Hindu Family Property, the daughters are the heirs with regard to their share in the property which will fall to the share between the father and the sons. The daughters are necessary parties to the litigation. 14. No doubt, in the case in hand, nature of the property is not to be determined but the facts indicated above would go a long way to show that the petitioners presence is necessary for the just decision of the case. My attention has also been drawn to G.P. Garhi v. Dharamvir and others, 1998(1) PLR 809. 14. No doubt, in the case in hand, nature of the property is not to be determined but the facts indicated above would go a long way to show that the petitioners presence is necessary for the just decision of the case. My attention has also been drawn to G.P. Garhi v. Dharamvir and others, 1998(1) PLR 809. It was observed that the true owner of the property cannot be said to be a stranger to the suit and the Court would be called upon to decide as to who is the true/original owner of the property. 15. Rupan Deol Bajaj v. Sukhwant Kaur, 2000(3) PLR 410 cited by the learned counsel for the respondent stands on different footing. It was a case where Sukhwant Kaur who was ordered to be impleaded as a party to the suit by the trial Court in revision was found to be not a necessary party for her impleadment because she had already been impleaded as a legal representative of Runaq Singh and being legal representative of Raunaq Singh, she could easily safeguard her interest. Therefore, this case is of no avail to the respondent. 16. In the given case in hand, the litigation is going on between the members of the HUF as is evident from one suit filed by Rajinder Kumar against Vishal Dhingra, and another suit filed by Vishal Dhingra against Hari Chand Dhingra, his father, mother and other brothers and also that Vishal Dhingra has already taken up a preliminary objection that the suit is bad for non joinder of the parties. Then the applicant has certainly got an interest in the property and he cannot be ousted or he cannot be stopped from joining the litigation. In fact, his impleadment to the suit appears to be necessary for proper adjudication of the case. Any adjudication in his absence may adversely affect his right. Though this Court is not to decide whether the property in dispute is a Joint Hindu Family property or that it is exclusively owned by the plaintiff and defendant to the suit, yet for passing of effective decree, presence of the applicant is necessary. For the aforesaid reasons, this revision is allowed. The impugned order is set aside and the application under Order 1 Rule 10 CPC filed by Krishan Lal- applicant-petitioner for his impleadment as a party to the suit is hereby allowed. Revision allowed.