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2008 DIGILAW 322 (CHH)

MOHD. SALIM v. AYASHA BEE.

2008-11-10

SATISH K.AGNIHOTRI

body2008
JUDGMENT 1. By this petition, the petitioners impugn the legality and validity of the order dated 25-4-2005 (Annexure-PI4) passed by the 7th Civil Judge, Class-II, Durg, in an application filed under Order I Rule 3 & 10 of the Code of Civil Procedure, 1908 (for short "the CPC') in pending civil suit No.81-A/2002 (Smt. Ayasha Bee & Another Vs. Dau-Bahadur Singh Gupta & Another), whereby the learned Civil Judge after holding that the petitioners are proper parties declined to array them as defendants. 2. The indisputable facts, in nutshell, for adjudication of the case are that th9petitioners are the legal heirs of Abdul Salam, they were defendants in the civil suit No.58-A/1976 (Dau Bahadur Singh Gupta Vs. Mohd. Abbas & Others) with regard to the same property i.e. the plaint schedule land in civil suit No.81-A/ 2002 also. Abdul Salam, predecessor of the petitioners herein, was the defendant No.2. After the death of Abdul Salam, the present petitioners were impleaded as the defendants. The civil suit No.58-A/1976 was decreed on 25-3-1980 (Annexure-P/5). The petitioners continued to be in possession of the plaint schedule land. 3. In the present civil suit filed by the respondents No.1 & 2 herein for declaration and mandatory injunction, the petitioners filed an application under Order I Rule 3 & 10 of the CPC (Annexure-P/2) to implead the petitioners being legal heirs of the deceased namely, Abdul Salam as defendants on the ground that they were the defendants in the earlier suit in respect of the same land. The petitioners are in possession of the plaint schedule land. 4. Learned Civil Judge after considering the objections raised by the plaintiff and the defendants held that though the petitioners were proper parties, but not necessary parties to the civil suit No.81-A/2002 and the suit can be disposed of without impleading the petitioners as parties to the suit. Accordingly, by order dated 25-4-2005 (Annexure-PI4) rejected the application of the petitioners. 5. This Court by order dated 7-11-2005 directed the trial Court to proceed with the trial, but no final judgment should be passed until further orders. 6. It is informed, at the bar, that the suit is still pending consideration. Shri Tamaskar, learned counsel appearing on behalf of the petitioners, would submit that the legal heirs of Late Abdul Salam, are in exclusive possession of the suit property with effect from 25-3-1980. 6. It is informed, at the bar, that the suit is still pending consideration. Shri Tamaskar, learned counsel appearing on behalf of the petitioners, would submit that the legal heirs of Late Abdul Salam, are in exclusive possession of the suit property with effect from 25-3-1980. The civil suit bearing No.81-A/2002 pending before the in Civil Judge relates to the same property, which was the subject matter of the civil suit No.58-A/1976. Since the civil suit No.81-A/2002 relates to the same property, the petitioners filed an application under Order 1 Rule 3 & 10 of the CPC to implead them as necessary parties in the said civil suit. The learned Civil Judge without appreciating the facts and circumstances of the case in its true perspective rejected the application of the petitioners. 7. Despite service of notice, none appears on behalf of the respondents. However, return on behalf of the respondent No.1 is on record. Case of the respondent No.1 is that the petitioners were the defendant No.2 in civil suit No.58A/1976. A compromise decree was passed on 1-3-1983. The respondent No.1 was in possession of a portion of the suit property for which suit No.81-A/2002 was filed on 28-2-1995. The objectors/petitioners filed an application on 17-4-1995, which was barred by limitation. The application of the petitioner was dismissed as being barred by limitation. The respondent No.1 has not denied the averments, made by the petitioners. 8. I have heard learned counsel appearing for the petitioners, perused the pleadings and the documents appended thereto. 9. It is well settled principle of law that to avoid multiplicity of suit it would be appropriate to implead proper parties in the suit. Apart from the fact that there must be a right to some relief against such party in respect of the controversies involved in the proceedings and no effective decree can be passed in the absence of such party. (See Kasturi Vs. lyyamperumal and others). 10. In the case of this nature where the petitioners were defendants in the earlier suit where the rights of the parties were decided, it cannot be held that they are not necessary parties in the present suit with respect to the same property. 11. Subsequently, while distinguishing the case of Kasturil (supra), the Hon'ble Supreme Court in the matter of Sumtibai and others Vs. Paras Finance Co. Regd. 11. Subsequently, while distinguishing the case of Kasturil (supra), the Hon'ble Supreme Court in the matter of Sumtibai and others Vs. Paras Finance Co. Regd. Partnership Firm Beawer (Raj.) through Mankanwar (Smt.) W/o Parasmal Chordia (Dead) and other~.2, observed as under: "14. In view of the aforesaid decisions we are of the opinion that Kroturi easel is clearly distinguishable. In our opinion it cannot be laid down as an absolute proposition that whenever a suit for specific perfonnance is filed by A against B, a third party C can never be impleaded in that suit. In our opinion, if C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced." 12. On perusal of the impugned order it appears that the application of the petitioners was not rejected on the ground of being barred by limitation, but on the ground that though they were proper parties, but not necessary parties and the suit can be disposed of without impleading the petitioners as parties to the suit. Thus, the averments made by the respondent No.1 in her return is rejected. 13. Applying the well settled principles of law to the facts of the present case where it is the case of the petitioners that they are in possession of the plaint schedule land and they were the defendants in the earlier suit No.58-A/1976 and further it has been held by the Court below that they are the proper parties, it is expedient to implead them as defendants. 14. In the result, without expressing any opinion on the facts of the case, the petition deserves to be allowed and is accordingly allowed. No order as to costs. The trial Court may proceed with the civil suit No.81-A/2002 in the light of this decision and in accordance with law. Petition Allowed.