Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 489 (ALL)

Raghvendra Datta Ram Pandey v. Geeta Pandey

2014-02-12

ANIL KUMAR

body2014
JUDGMENT Anil Kumar, J. 1. Heard Sri Q.M. Haque, learned Counsel for the revisionist and Sri Indrajeet Shukla, learned Counsel for the respondents. Facts, in brief, as submitted by learned Counsel for the revisionist are that respondent No. 1/Smt. Geeta Pandey has filed a regular suit for declaration, registered as Regular Suit No. 43 of 1980 (Smt. Geeta Pandey v. Sri Pratap Bhan Pandey and others). 2. In the said matter on behalf of the revisionist/Sri Raghvendra Datta Ram Pandey an application under Order I, Rule 10(2), C.P.C. has been moved for impleadment as respondent on the ground that on 10.7.1998 one Sri Indra Bhan Dutt Pandey during his life time had made an unregistered will in his favour his "Nati" Sri Raghvendra Dutt Ram Pandey in respect of his share in the property for which a suit for declaration and on 20.8.2010 he has got knowledge in respect to the pendency of suit registered as paper No. 309-C. 3. After hearing learned Counsel for the parties and taking into consideration the material facts on record, learned Court below by order dated 11.1.2012, rejected the same with the following directions: 4. Aggrieved by the said order, present revision has been filed before this Court under section 115 C.P.C. 5. Sri Q.M. Haque, learned Counsel for the revisionist while challenging the impugned order submits that the findings given by the Court below that the Will on the basis of which revisionist wants to be impleaded as party has got no probate, as per the provisions of section 213(1) of the Indian Succession Act, 1925. In this regard, he has placed reliance on the judgment given by the Hon'ble Apex Court in the case of Clarence Pais and others v. Union of India , 2001 (43) ALR 249. He further submits that the impugned order passed by the Court below thereby rejecting the application moved by the revisionist for impleading as defendant in suit for declaration is contrary to the provisions as provided under Order I, Rule 10(2), C.P.C. In support of his arguments he has placed reliance on the Judgment given by Division Bench of this Court in the case of Dr. Shyam Chandra Srivastava v. Estate of Padmasri Smt. Savitri Sahni , 2010 (82) ALR 198 , accordingly he submits that there is illegality or infirmity in the impugned order, liable to be set aside. 6. Shyam Chandra Srivastava v. Estate of Padmasri Smt. Savitri Sahni , 2010 (82) ALR 198 , accordingly he submits that there is illegality or infirmity in the impugned order, liable to be set aside. 6. Learned Counsel for the respondents white supporting the impugned judgment submits that revisionist neither placing any appropriate judgment to decide the controversy involved in suit for declaration filed by Smt Geeta Pandey. He further submits that if the findings given by Court below, revisionist has any grievance in respect to the property in dispute on the basis of alleged unregistered Will dated 10.7.1998 then in order to claim his right on the basis of said documents he can file suit so the revision filed by the revisionist lacks merit, liable to be dismissed. 7. In order to decide the controversy, it will be appropriate to go through the scope and object of Order I, Rule 10(2), C.P.C. which covers two types of cases : (a) of a party who ought to have been joined but not joined and is a necessary party, and (b) of a party without whose presence the question involved in the case cannot be completely decided. 8. The former is called a necessary party and the latter a proper party. Sub-rule (2) of Order I, Rule 10, therefore, is attracted when the question is covered by one of the above. A party seeking such a joinder as a proper party will have to prima facie establish that such a party has interest in the subject-matter of the litigation and as such should be before the Court. 9. The simple test in such controversy would be as to whether the presence of such a party is appropriate in view of the subject-matter in adjudication. If the answer be in the affirmative, joinder can be permitted. By reason of direct interest in the subject-matter or even by reason of eventual reliefs sought, such a test would be answered. Power being there, it is all a matter of appreciation of the controversy in issue and its possible ramifications. 10. Order I, Rule 10(2), C.P. Code gives a very wide discretion to the Court to deal with any such situation which may result in prejudicing the interest of affected party if not impleaded in the suit and where the impleadment of the said, party is necessary and vital for the decision of the suit. 10. Order I, Rule 10(2), C.P. Code gives a very wide discretion to the Court to deal with any such situation which may result in prejudicing the interest of affected party if not impleaded in the suit and where the impleadment of the said, party is necessary and vital for the decision of the suit. It is true that the discretion has to be exercised judicially but at the same time the concerned civil or Appellate Court where the suit on appeal is pending has also to take into consideration that the party which is necessary to be impleaded will be put to a greater difficulty if not impleaded by the plaintiff who may have ulterior motives of not impleading such party and if the decision is given which may affect the interest of the said party greater prejudice would be caused to the said party as a result of not impleading while no prejudice or loss would be caused to the plaintiff because he will have full opportunity to defend his rights and interest as against aggrieved party who has been impleaded as a party to the suit. The important aspect which should be looked into by the Civil Courts while deciding the applications under Order I, Rule10(2), C.P.C. is to avoid multiplicity of litigation and also conflicting decisions being passed in different suits which will be safeguarded as a result of allowing necessary party to be impleaded in the suit (See Baijnath v. Ganga Devi , AIR 1998 Raj. 125 ). 11. The expression "to settle all questions involved" used in Order I, Rule 10(2), is susceptive of liberal and wide interpretation so as to adjudicate all the questions pertaining to the subject-matter thereof. 12. The Parliament in its wisdom while framing this rule must be held to have thought that all the material questions common to the parties to the suit and to the third parties should be tried once for all and the Court is clothed with the power to secure the aforesaid result with judicious discretion to add parties, including third parties (See Abdul Jaleel v. Aishabi , AIR 1992 Karn. 380 : (1992) 2 Karn. LJ 277). 13. 380 : (1992) 2 Karn. LJ 277). 13. The word "At any stage" in Order I, Rule 10(2), C.P.C. means that there is no requirement of law that an application for addition of a party as defendant must be made at any particular stage of the trial though in a given case delay in moving an application might be one of the considerations for the decision (See Gurmauj Saran v. Joyce C. Salim , AIR 1990 Del. 13 (DB)), 14. The use of the expression "at any stage of proceedings" in Order I, Rule 10(2) shows that the power vested in the Court under it can be exercised only when the proceedings before it are alive and still pending. Once the adjudication itself of all the disputes in the case is over, this provision cannot be made use of by any party (See Sardar Ali Khan v. Special Deputy Collector , AIR 1973 AP 298 (DB)), 15. Thus, under Order I, Rule 10(2), C.P.C. the power to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. But the question to be considered whether the right of the said person may be affected if he is not added as a party. Such right, however, Will include necessarily an enforceable legal right. 16. In this regard Hon'ble the Apex Court in the case of Savitri Devi v. District Judge, Gorakhpur , 1999 (36) ALR 93, after considering the provisions of Order I, Rule 10, C.P.C and the other law on the point in issue, namely, Khemchand Shankar Choudhari and another v. Vishnu Hari Patil and others, 1983 (1) SCC 18 , Ramesh Hirachand Kundanmal v. Municipal Corpn. of Greater Bombay , 1992 (2) SCC 524 held as under: Order I, Rule 10, C.P.C. enables the Court to add any person as party at any stage of the proceedings if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision in the Code. 10. Avoidance of multiplicity of proceedings is also one of the objects of the said provision in the Code. 10. In Khemchand Shankar Choudhari and another v. Vishnu Hari Patil and others , (1983)1 SCR 898 this Court held that a transferee pendente lite of ah interest in an immovable property which is the subject-matter of suit is, a representative in interest of the party from whom he has acquired that interest and has a right to be impleaded as a party to the proceedings. The Court has taken note of the provisions of section 52 of the Transferred Property Act as well as the provisions of Rule 10 of Order XXII, C.P.C. The Court said: ...It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard he has got to be so impleaded and heard.... 11. In Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and others , (1992) 2 SCR 1 this Court discussed the matter at length and held that though the plaintiff is a 'dominus litis' and not bound to sue every possible adverse claimant in the same suit, the Court may at any stage of the suit direct addition of parties and generally it is a matter of judicial discretion which is to be exercised in view of the facts and circumstances of a particular case. The Court said: The case really turns on the true construction of the rule in particular the meaning of the words "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." The Court is empowered to Join a person whose presence is necessary for the prescribed purpose and cannot under the rule direct, the addition of a person whose presence is not necessary for that purpose. If the intervener has a cause of action against the plaintiff relating to the subject-matter of the existing action, the Court has power to join the intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions. If the intervener has a cause of action against the plaintiff relating to the subject-matter of the existing action, the Court has power to join the intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions. The Court also observed that though prevention of actions cannot be said to be main object of the rule, it is a desirable consequence of the rule. The test for impleading parties prescribed in Razia Begum v. Anwar Begum, (1959) 3 SCR 1111 that the person concerned must be having a direct interest in the action was reiterated by the Bench. 17. In the case of Vidur Impex and Traders Private Limited and others v. Tosh Apartments Private Limited and others , 2012 (94) ALR 718 : 2012 (117) RD 568 : , 2012 (118) AIC 236, Hon'ble the Supreme Court after considering the various law on the subject under consideration and after placing reliance on the judgment of Vinod Seth v. Devinder Bajaj , 2010 (82) ALR 335 (SC) and Bibi Zubaida Khatoon v. Nabi Hassan Saheb , 2003 (53) ALR 837 (SC) has held in para No. 41 quoted herein below: 41. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are: 41.1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit. 41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court. 41.3. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made. 41.4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff. 41.5. 41.4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff. 41.5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment. 18. In the instant matter while rejecting the revisionist's application for impleadment by order dated 11.1.2012 under challenge in the present revision, the Court below after taking into consideration the application moved by Sri Raghvendra putt Ram Pandey for impleadment as party/defendant in the suit for declaration filed by Smt. Geeta Pandey in the Will dated 10.7.1998 (paper No. 313 Ga), and from the perusal of the said documents, had categorically mentioned that in the Will of Sri Indra Bhan Dutt Ram Pandey, it has mentioned that he is the resident of village Dhaneypur whereas in his death certificate dated 19.7.1998 residence is mentioned as Gauraiya. In this regard, the Court below further given a finding that in the application moved by Sri Indra Bhan Dutt Ram Pandey for grant of armed license, he has put his signature in 'Urdu' whereas in the Will, his signature is in Hindi, so keeping in view the said material facts it has been held by the Court below that the will is a forged document and on the basis of which Sri Regivendra/revisionist cannot be impleaded as party. 19. In addition to above said findings, the Court below while rejecting the application for impleadment held that there is no ground/justification whatsoever to implead him as defendant in the suit because if he has any grievance in respect of property in question then in that circumstances he has got a remedy to file a suit for the said purpose. 20. In addition to above said findings, the Court below while rejecting the application for impleadment held that there is no ground/justification whatsoever to implead him as defendant in the suit because if he has any grievance in respect of property in question then in that circumstances he has got a remedy to file a suit for the said purpose. 20. Further, the Court below has also given a finding while rejecting the application for impleadment that the same is moved in the year 2010 wherein the suit has been filed in the year 1980 so the same is filed only to linger on the matter. The said finding has been given by the Court below is well within the ambit and scope of the Order I, Rule 10, C.P.C., so learned Counsel for the revisionist cannot derive any benefit from the law as sited by him in the case of Clarence Pais and others (Supra) and Dr. Shyam Chandra Srivastava. (supra). 21. In view of the facts stated herein above, the impugned order dated 11.1.2012 passed by Court below/Civil Judge (Senior Division) Gonda is perfectly valid and no interference is required. For the foregoing reasons, the revision is dismissed.