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2004 DIGILAW 1030 (ALL)

Kali Charan v. B. Dwarka Dass

2004-05-12

TARUN AGARWALA

body2004
ORDER Tarun Agarwala, J.—The plaintiff has challenged the order dated 1.11.1989 in the present revision filed under Section 115 of the Code of Civil Procedure, allowing the impleadment application of Baba Brij Nandan Das for being impleaded as defendant No. 2 in place of the deceased defendant No. 2, late Mahant Ram Priya Das. 2. Briefly stated, the facts of the case are, that the plaintiff filed a suit under Section 92 of the Code of Civil Procedure praying for a decree of the removal of the defendants as trustees and for rendition of accounts. In the said suit Sri Dwarika Das was arrayed as defendant No. 1 and Sri Ram Priya Das was arrayed as defendant No. 2. It was alleged that the suit was in respect of a public charitable waqf in which the defendant Nos. 1 and 2 were the trustees and the relief claimed was for the removal of the trustees of a public trust. It was also stated, that, in the proceedings initiated under Section 3 of the Charitable and Religious Trust Act, 1920, the Additional District Judge, Bareilly by its judgment and order dated 6.1.1979 held that the property in dispute was a public trust and not a private trust. 3. The plaintiff alleged that the defendant No. 2, Ram Priya Das died on 15.2.1985 and since the suit was for the removal of defendant No. 2 as a trustee of a public charitable waqf, the cause of action did not survive any longer against the said defendant No. 2, and, accordingly, the plaintiff moved an application praying that the name of Sri Ram Priya Das, defendant No. 2 be struck off from the array of parties. The plaintiff also prayed for amending the plaint by adding paragraph 18 (A) in which it was asserted, that Ram Priya Das, the defendant No. 2 had died on 15.2.1985 and that the cause of action did not survive on his heirs. This application was resisted by Baba Brij Nandan Das, who asserted that the property in question was a private trust and not a public trust and that a Will was executed by the defendant No. 2 in his favour and that he is the heir of the deceased and has a right to inherit the property in question. This application was resisted by Baba Brij Nandan Das, who asserted that the property in question was a private trust and not a public trust and that a Will was executed by the defendant No. 2 in his favour and that he is the heir of the deceased and has a right to inherit the property in question. Baba Brij Nandan Das contended that the name of defendant No. 2 should not be deleted and that his name should be substituted as the legal heir and representative of the deceased defendant Ram Priya Das. The court below vide order dated 24.5.1985, allowed the application of the plaintiff for deleting the name of defendant No. 2, Ram Priya Das from the array of parties in the plaint and rejected the objection of Baba Brij Nandan Das. Pursuant to the aforesaid order dated 24.5.1985 the name of defendant No. 2 was deleted from the array of parties. 4. It transpires that subsequently, Baba Brij Nandan Das filed an application under Order I, Rule 10, C.P.C. praying that he should be impleaded as a defendant as he is an heir of the deceased defendant No. 2, alleging that he is liable to inherit the property as per the Will executed by late Ram Priya Das in his favour, Baba Brij Nandan Das stated that the property in question is a private trust and that he has become the owner pursuant to the alleged Will and therefore, he is a necessary party and was liable to be impleaded as a defendant. The plaintiff objected to the aforesaid application and submitted that the application is barred in view of the fact that similar objection of Baba Brij Nandan Das was rejected by the Court by order dated 24.5.1985. 5. The trial court by order dated 1.11.1989 allowed the application and directed the plaintiff to move a proper amendment application for impleading Baba Brij Nandan Das as defendant No. 2. 6. Aggrieved by the aforesaid order, the plaintiff has filed the present revision. 7. Heard Sri Ashutosh Srivastava, the learned counsel for the applicant and Sri R. C. Singh, the learned counsel for the opposite parties. 8. In my view, the revision is liable to be allowed and the impugned order dated 1.11.1989 is liable to be set aside. 6. Aggrieved by the aforesaid order, the plaintiff has filed the present revision. 7. Heard Sri Ashutosh Srivastava, the learned counsel for the applicant and Sri R. C. Singh, the learned counsel for the opposite parties. 8. In my view, the revision is liable to be allowed and the impugned order dated 1.11.1989 is liable to be set aside. The impugned order nullifies the earlier order dated 24.5.1985, which cannot be done, as the said order dated 24.5.1985 had become final. The trial court after dealing with the objection of Baba Brij Nandan Das by order dated 24.5.1985 allowed the application of the plaintiff and directed him to delete the name of defendant No. 2 from the array of parties. The trial court rejected the objection of Baba Brij Nandan Das that the said property was a private trust and not a public trust. Once an order has been passed deleting the name of defendant No. 2 and the said order has been acted upon and the name of defendant No. 2 has been deleted from the array of the parties in the plaint, the question of now impleading Baba Brij Nandan Das in place of defendant No. 2 does not arise, inasmuch as there is no defendant No. 2 in the suit. No relief has been claimed in respect of Brij Nandan Das to implead him as necessary party and, therefore, he was not a necessary party and was not liable to be impleaded. The application of Baba Brij Nandan Das for impleadment under Order I, Rule 10, C.P.C. was purely mala fide and was filed only to circumvent the earlier order dated 24.5.1985 passed by the court below. 9. It may be stated here that the plaintiff is a dominus litis. He is the best Judge of his own interest and it should be left to the plaintiff to choose his opponent from whom he wants the relief. If a plaintiff seeks a relief against a particular person, it is not open for the Court to investigate and see whether the relief could be claimed against any other person. Further, the Court should not add a person as a defendant when the plaintiff is opposing such addition. 10. If a plaintiff seeks a relief against a particular person, it is not open for the Court to investigate and see whether the relief could be claimed against any other person. Further, the Court should not add a person as a defendant when the plaintiff is opposing such addition. 10. In view of the aforesaid, the court below committed material irregularity and exceeded its jurisdiction in allowing the impleadment application and directing the plaintiff to implead Brij Nandan Das as defendant No. 2. 11. In view of the aforesaid, the revision is allowed and the impugned order dated 1.11.1989 passed by the IVth Additional District Judge in Original Suit No. 30 of 1975 is set aside. In the circumstances of the case, there shall be no order as to cost.