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2014 DIGILAW 1054 (HP)

Rashpal Singh v. Sher Singh

2014-08-06

DHARAM CHAND CHAUDHARY

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JUDGMENT : - Dharam Chand Chaudhary, J. (Oral). Challenge herein is to the order (Annexure P-6) passed by learned Civil Judge (Junior Division), Court No.II, Amb, District Una, in an application registered as CMA No.303 of 2010 in Civil Suit No.128 of 2005, whereby the application under Order 1 Rule 10 of the Code of Civil Procedure has been dismissed and the prayer made therein by the petitioners herein for their impleadment in the main suit declined. 2. The subject matter of dispute in the lis is Shamlat land situated in village Sidh Chalehar, Tehsil Amb, District Una. One Sher Singh and 21 others have filed a suit against defendant No.1, the State of Himachal Pradesh for the relief of declaration to the effect that the suit land being Shamlat Deh is Malkiat of the plaintiffs and proforma defendants No.2 and 3 and that defendant No.1 has no right, title or interest therein. The revenue entries showing the suit land in the name of defendant No.1 in the capacity of owner have been sought to be declared as null and void and not binding on the plaintiffs. The suit presently is at its initial stage as only written statement on behalf of defendant No.1 is filed. The petitioners in the meanwhile, however, have filed the application aforesaid with the prayer to implead them as proforma defendants in the suit. They claim themselves to be the persons similarly situated to the plaintiffs being proprietors of the suit land, which is Shamlat in the capacity of the residents of the same village where the suit land is situated. The suit land to the extent of their shares allegedly is under their use and possession since the time immemorial. They further claimed that they are in cultivating possession of the suit land in the capacity of co-shares prior to 26.1.1950 and have ancestral abadis as well as landed property in the village, i.e., Sidh Chalehar. 3. The plaintiffs have resisted the application on the grounds that the petitioners-applicants are not proprietors of the village, having no right, title or interest in the suit land. It is further submitted that they are not in cultivating possession nor having their abadis in the village. 4. 3. The plaintiffs have resisted the application on the grounds that the petitioners-applicants are not proprietors of the village, having no right, title or interest in the suit land. It is further submitted that they are not in cultivating possession nor having their abadis in the village. 4. Learned trial Court after having taken into consideration the rival submissions, has dismissed the application with the following observations: “It needs no emphasis that plaintiff is dominus litis and is at liberty to choose the persons against whom he wishes to continue his claim. If it is found on merits that applicants have claim in the suit land and are necessary parties in the suit law will take its own course. If plaintiff takes calculated risk and does not implead necessary party he has to face music as per law. For their rights if any applicants may have separate remedy as per law. In view of discussions above there appears no merit in the application and necessity of impleading the applicants at this stage. Accordingly, application being devoid of merits is dismissed. Be listed for consideration on 23.9.13.” 5. It is this order, which is under challenge before this Court in the present petition. There is no denial to the fact that the petitioners-applicants are residents of village Sidh Chalehar. Learned Counsel has pointed out from the copy of Jamabandi Annexure P-7 to this petition that like Sher Singh etc. (plaintiffs), the predecessors-in-interest of the petitioners-applicants whose names reflected against Khewat No.24 to 26 and 106 min, were also recoded in possession of the suit land. True it is that the case so set out by the petitioners needs proof and to produce the same they can be called upon at an appropriate stage and at this stage when it is an application for impleadment under consideration, such entries and the submissions made by learned Counsel have to be prima facie considered and made basis for deciding the petition. Be it stated that the plaintiff being dominus litis, no doubt is at liberty to choose as to who is the person against whom the claim is to be instituted, however, in the event of a person come forward for his impleadment in the suit at some later stage and satisfy the necessity of his impleadment, the Court can always pass an order qua impleadment of such person as party in the suit. 6. For arriving at such findings, support can be drawn from the judgment of the Apex Court in Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and others, (2010) 7 SCC 417 . In this judgment, the Apex Court has discussed the scope of Order 1 Rule 10 of the Code of Civil Procedure, particularly sub-rule 2 of Rule 10 and also the principles set out by the Apex Court in various judicial pronouncements and has concluded as under: “24. We may now give some illustrations regarding exercise of discretion under the said sub-rule. 24.1 If a plaintiff makes an application for impleading a person as a defendant on the ground that he is a necessary party, the court may implead him having regard to the provisions of Rules 9 and 10(2) of Order I. If the claim against such a person is barred by limitation, it may refuse to add him as a party and even dismiss the suit for non-joinder of a necessary party. 24.2 If the owner of a tenanted property enters into an agreement for sale of such property without physical possession, in a suit for specific performance by the purchaser, the tenant would not be a necessary party. But if the suit for specific performance is filed with an additional prayer for delivery of physical possession from the tenant in possession, then the tenant will be a necessary party in so far as the prayer for actual possession. 24.3 If a person makes an application for being impleaded contending that he is a necessary party, and if the court finds that he is a necessary party, it can implead him. If the plaintiff opposes such impleadment, then instead of impleading such a party, who is found to be a necessary party, the court may proceed to dismiss the suit by holding that the applicant was a necessary party and in his absence the plaintiff was not entitled to any relief in the suit. 24.4 If an application is made by a plaintiff for impleading someone as a proper party, subject to limitation, bonfides etc., the court will normally implead him, if he is found to be a proper party. 24.4 If an application is made by a plaintiff for impleading someone as a proper party, subject to limitation, bonfides etc., the court will normally implead him, if he is found to be a proper party. On the other hand, if a non-party makes an application seeking impleadment as a proper party and court finds him to be a proper party, the court may direct his addition as a defendant; but if the court finds that his addition will alter the nature of the suit or introduce a new cause of action, it may dismiss the application even if he is found to be a proper party, if it does not want to widen the scope of the specific performance suit; or the court may direct such applicant to be impleaded as a proper party, either unconditionally or subject to terms. For example, if ‘D’ claiming to be a co-owner of a suit property, enters into an agreement for sale of his share in favour of ‘P’ representing that he is the co-owner with half share, and ‘P’ files a suit for specific performance of the said agreement of sale in respect of the undivided half share, the court may permit the other co-owner who contends that ‘D’ has only one-fourth share, to be impleaded as an additional defendant as a proper party, and may examine the issue whether the plaintiff is entitled to specific performance of the agreement in respect of half a share or only one-fourth share; alternatively the court may refuse to implead the other co-owner and leave open the question in regard to the extent of share of the vendor-defendant to be decided in an independent proceeding by the other co-owner, or the plaintiff; alternatively the court may implead him but subject to the term that the dispute, if any, between the impleaded co-owner and the original defendant in regard to the extent of the share will not be the subject matter of the suit for specific performance, and that it will decide in the suit, only the issues relating to specific performance, that is whether the defendant executed the agreement /contract and whether such contract should be specifically enforced. 25. 25. In other words, the court has the discretion to either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party.” 7. Therefore, as per the ratio of the judgment supra, if a person makes an application for impleadment and the Court finds that he is a necessary party, such person can be ordered to be impleaded in the suit. It has further been held in this judgment that in the event of opposition to such impleadment as party on behalf of the plaintiff, the Court instead of impleading such person as party may proceed to dismiss the suit itself being bad for want of necessary parties. 8. The Apex Court in Sumtibai and other v. Paras Finance Co. Regd. Partnership Firm, (2007) 10 SCC 82 , has held that in the event of there being a fair semblance of title and interest of a person seeking impleadment, the request so made should be allowed in order to avoid multiplicity of litigation and other legal complications. The law laid down by the larger Bench of the Apex Court in Kasturi v. Iyyamperumal, (2005) 6 SCC 733 has also been discussed by the Apex Court in the judgment supra and was found to be distinguished on facts. In Kasturi’s case supra, the Apex Court has held that in a suit for specific performance of the contract for sale of property a stranger or a third party to the contract cannot be added as defendant in the suit. Anyhow these are not the facts in the case in hand before this Court. 9. On the other hand, prima facie there is semblance of right, title and interest at par with that of the plaintiffs because the petitioners also belong to the same village where the land in dispute is situated. Prima facie, they have their abadis in the same village. Record available at this stage also, demonstrates that their predecessors-in-interest were in cultivating possession of the land in dispute to the extent of their shares. Therefore, in the considered opinion of this Court, the petitioners are necessary parties in the suit. Prima facie, they have their abadis in the same village. Record available at this stage also, demonstrates that their predecessors-in-interest were in cultivating possession of the land in dispute to the extent of their shares. Therefore, in the considered opinion of this Court, the petitioners are necessary parties in the suit. As a matter of fact, no enforceable and executable decree can be passed in their absence nor the point in issue can be adjudicated upon judiciously and effectively. The refusal to implead them as party in the suit may rather result in multiplicity of litigation and other legal complications. I am, therefore, not in agreement with the order passed by learned trial Court. The same, therefore, is set aside. Consequently, the application filed by the petitioners for their impleadment succeeds and the same is accordingly allowed. They are ordered to be impleaded as proforma defendants in the suit. The trial Court is directed to carry out necessary corrections in the record accordingly. Parties through learned Counsel representing them are directed to appear before the trial Court on 23rd August, 2014. The record be sent back forthwith so as to reach well before the next date. The petition stands accordingly disposed of, so also all pending applications.