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2001 DIGILAW 697 (ALL)

K. S. M. BASHEER MOHAMMAD v. RAM BALI SINGH

2001-07-17

I.M.QUDDUSI

body2001
I. M. QUDDUSI, J. ( 1 ) HEARD learned counsel for the revisionist Srj N. K. Seth and Sri R. K. Agarwal learned counsel appearing for respondent No. 2, i. e. , Masonic Temple Lodge Independence, Lucknow. ( 2 ) ON 7. 9. 2000 while admitting this revision, this Court directed to issue notice to respondent no. 1. According to stamp reporter, the notice has been served on Ram Bali Singh opposite party no. 1 personally on 30. 9. 2000 as per report of Process Server. Today, this case has been listed at sl. No. 6 of the cause list, Case called out. No one responded for respondent No. 1. Therefore, this Court has no option except to proceed further even in the absence of opposite party No. 1. ( 3 ) THIS revision has been filed against the order dated 7. 8. 2000 passed in Regular Suit No. 593 of 1999, Masonic Temple Lodge v. Lucknow Development Authority and others, by which application of opposite party No. 1 for his impleadment as party has been allowed, inter alia, on the ground that opposite party No. 1 had filed a Suit No. 341 of 1985 against Masonic Temple lodge for permanent Injunction and, therefore, he should be impleaded as defendant In the suit in question, i. e. , Regular Suit No. 593 of 1999. ( 4 ) IT appears that opposite party No. 1 Ram Bali Singh had filed a suit against Masonic Temple lodge for permanent injunction alleging that he has lawful occupation of nursery situated within the premises of 12, Ram Tirath Marg at the rate of Rs. 250 per month ; and on 18. 10. 1985, the defendant threatened the plaintiff to vacate the Nursery within 2 days otherwise they will be forcibly removed. The prayer made in the suit confined to a decree of permanent injunction restraining the defendants not to dispossess the plaintiff from the Nursery. The suit in question, i. e. , Regular Suit No. 593 of 1999 has been filed by Masonic Temple Lodge against Lucknow development Authority, M/s. K. S. M. Bashir Mohd. and Sons and Nazool Officer, Lucknow, with the following prayers : " (a) a decree for permanent injunction, restraining the defendants from interfering with plaintiffs possession of land and property mentioned in para 3 of the plaintiff in any manner whatsoever. and Sons and Nazool Officer, Lucknow, with the following prayers : " (a) a decree for permanent injunction, restraining the defendants from interfering with plaintiffs possession of land and property mentioned in para 3 of the plaintiff in any manner whatsoever. (b) a decree for permanent injunction, restraining the defendants from raising any construction over the land mentioned in para 4 of the plaint or changing Its status or situations ; (c) a decree for mandatory injunction against the defendants commanding them to open the passage to the Masonic temple building mentioned in para 3 of the plaint ; (d) a decree for possession of land mentioned in para 4 of the plaint ; (e) a decree for Rs. 10,000 as damages caused of the suit be also decreed ; (f) any other relief may also be decreed for which the plaintiff is found entitled in the circumstances of the case. " ( 5 ) THE opposite party No. 1 filed application for impleadment of himself as defendant, inter alia, on the allegation that due to forcible dispossession which took place on 31. 3. 1999, directly affected the interest adversely. ( 6 ) NOW the question for consideration is whether in the facts and circumstances mentioned above, opposite party No. 1 was liable to be impleaded as defendant in the suit on the ground that he has already filed a suit for permanent injunction against his landlord, i. e. , Masonic temple Lodge who is the plaintiff in the suit in question filed against the Lucknow Development authority and the instant revisionist. In my opinion, the dispute of tenant and landlord has no concern with the suit in question which has been filed by the landlord of opposite party No. 1, i. e. , Masonic Temple Lodge against the Lucknow Development Authority and the Instant revisionist. ( 7 ) SRI R. K. Agrawal, first of all, had raised an objection that the revision is not maintainable against the order by which opposite party No. 1 has been impleaded as defendant in the suit In question. His contention is that there is no jurisdictional error committed by the court below in allowing the application for impleadment. In this regard it is necessary to peruse the provisions of Section 115, C. P. C. which are quoted as under : "115. His contention is that there is no jurisdictional error committed by the court below in allowing the application for impleadment. In this regard it is necessary to peruse the provisions of Section 115, C. P. C. which are quoted as under : "115. Revision.-- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears : (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted In, the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit : provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where : (a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable Injury to the party against whom it was made. (2) The High Court shall not under this Section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. Explanation--In this Section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding. " ( 8 ) A perusal of provisions of Section 115 (1) (c), C. P. C. would show that the revisional jurisdiction of High Court is not confined only for mere interference with the subordinate courts order. If that Court exercises a jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested in it, the High Court can exercise its revisional powers in case the subordinate court has acted in exercise of its jurisdiction illegally or with material irregularity. If that Court exercises a jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested in it, the High Court can exercise its revisional powers in case the subordinate court has acted in exercise of its jurisdiction illegally or with material irregularity. In the matter of Bhagwan Prasad and others V. Mata Prasad, 1977 All LJ 894, this Court has held that 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 and as such, an order disposing of such an application would, therefore, amount to a case decided and a revision from that order would, therefore, be maintainable. In view of this, in case the subordinate court has impleaded a party which is not a necessary party In the suit, certainly it cannot be denied that the subordinate court has acted in exercise of its jurisdiction illegally or with material Irregularity. Therefore, this court has jurisdiction to exercise its revisional powers to see whether while allowing impleadment application, the subordinate court has acted in exercise of its jurisdiction, illegally or with material irregularity. ( 9 ) THE next contention of Sri R. K. Agrawal is that the court below has exercised its jurisdiction in accordance with the provisions of Order I, Rule 10 (2 ). C. P. C. In this regard the provisions of order I, Rule 10 (2 ). C. P. C. are quoted below : "order I, Rule 10 (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 effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. " ( 10 ) IN the above-quoted rule, the relevant words for the purpose of instant matter are "the name of any person who ought to have been joined whether as plaintiff or defendant" and further "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. " ( 11 ) IN view of the above, it is the duty of the Court to see whether the name of any person ought to have been joined or whether the presence of a person before the Court is necessary in order to enable the Court to effectually and completely adjudicate upon and to settle all questions which are involved in the suit. In case, a separate suit has been filed by a tenant against his landlord for permanent injunction and the landlord files a suit against other persons for permanent injunction and possession, the cause of action would be entirely different in such cases and the Court would have to see whether merely due to filing a suit by a tenant, it would be necessary to implead him as a defendant in the other suit which has no concern with the tenant and has been filed for a different cause of action and in such circumstances, the presence of the tenant would be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit filed by the landlord against different persons for different cause of action. ( 12 ) IN the impugned order, learned court below has nowhere observed that the presence of Ram bali Singh opposite party No. 1 is necessary before the Court in order to enable the Court effectually and completely to adjudicate upon and to settle all the questions involved in the suit. ( 13 ) THE learned court below has allowed the impleadment application mainly on the ground that in other Civil Suit No. 341 of 1985 same disputed property has been described which has been mentioned in the suit in question, i. e. , Regular Suit No. 593 of 1999 on this ground. ( 13 ) THE learned court below has allowed the impleadment application mainly on the ground that in other Civil Suit No. 341 of 1985 same disputed property has been described which has been mentioned in the suit in question, i. e. , Regular Suit No. 593 of 1999 on this ground. In the absence of any observation of the court below that in the suit in question, i. e. , Regular Suit No. 593 of 1999, the presence of opposite party No. 1 Ram Bali Singh is necessary before the Court, the application for impleadment was not liable to be allowed. ( 14 ) IN Order I, Rule 10 (2), C. P. C. , satisfaction of the Court to the effect 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, is necessary as this clause of Rule 10 does not permit impleadment of a party on any other circumstance. ( 15 ) IN the instant matter, I do not find any reasoning in the order passed by the court below either indicating the necessity to join the tenant as a party in the suit in question or any observation that the presence of opposite party No. 1 before the Court may be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit. ( 16 ) THEREFORE, in the above mentioned circumstances, this Court is of the view that the learned court below has acted in exercise of its jurisdiction illegally and with material irregularity in allowing the application for impleadment of opposite party No. 1. In view of the above premises, the revision is liable to be allowed. ( 17 ) IN the result, the revision is allowed. The impugned order dated 7. 8. 2000 passed by the court below on the application No. Ga-29 in Regular Suit No. 593 of 1999, is set aside. The application for impleadment of opposite party No. 1 stands dismissed. The learned court below is directed to proceed further in accordance with law in the suit and decide the same expeditiously. .