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2016 DIGILAW 150 (HP)

Rajinder Rustagi v. Johri Mal Rustagi

2016-02-29

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This petition is instituted against Order dated 15.7.2015 rendered by learned Civil Judge (Junior Division)-I, Dharamshala, District Kangra, Himachal Pradesh in application CIC No. 87 in CS No. 30/2010 2. “Key facts" necessary for the adjudication of the present petition are that respondent No. 1 has filed a suit for declaration before Civil Judge (Junior Division)-I, Dharamshala, District Kangra, claiming ownership of the land comprising in Khasra Nos. 920, 921, 922, 929, 930, and 941 Kita 6 of Khata No. 462, Khatauni No. 1184. Petitioner filed an application under Order 1 Rule 10 read with Section 151 CPC for impleading him as party in the civil suit No. 30/2010. Application was contested by the defendant Shri Johri Mal. According to the averments made in the reply, applicant was stranger to the suit land and he had no right, title or interest over the suit land and thus, he was not a necessary party. Application was dismissed by the learned Civil Judge (Junior Division)-I on 15.7.2015. Hence, this petition. 3. Civil suit was instituted in the year 2010. According to the averments made in the application under Order 1 Rule 10 CPC, he came to know about pendency of the suit only on 28.2.2015. Predecessor-in-interest of the applicant Shri Daulat Ram had purchased the land in open auction on 22.8.1958 in lot Nos. VI and VIII. Possession was delivered to Daulat Ram. He raised construction. He expired on 19.4.1975. It is also averred in the application that there is a common path in Khata No. 462. Learned Civil Judge (Junior Division) has rightly come to the conclusion that if plaintiff is not joined as a necessary or proper party to a suit, consequence will ensue and he will suffer. Application preferred by the petitioner has been opposed for impleadment under Order 1 Rule 10 CPC, thus, he would not be bound by the decree and would be free to question its legality/propriety in appropriate proceedings. 4. A party seeking impleadment to a suit is required to demonstrate that he has a direct and substantive interest in the subject matter and his interest would be affected directly by the decree that may be passed in the suit or that his presence is must for answering issues arising in the suit. 4. A party seeking impleadment to a suit is required to demonstrate that he has a direct and substantive interest in the subject matter and his interest would be affected directly by the decree that may be passed in the suit or that his presence is must for answering issues arising in the suit. Thus, there is neither any illegality nor any perversity in the orders passed by the Civil Judge (Junior Division). 5. The learned Single Judge of Madras High Court in Firm of Mahadeva Rice and Oil Mills and others v. Chennimalai Goundar reported in AIR 1968 Madras 287, has laid down following tests to be followed while adding parties: “(5) ….. I am of the opinion that the following tests may be formulated usefully as a guidance in the case of adding of parties under O. 1, R. 10, Civil P.C.: (1) if, for the adjudication of the “real controversy” between the parties on record, the presence of a third party is necessary, then he can be impleaded. (2) it is imperative to note that by such impleading of the proposed party, all controversies arising in the suit and all issues arising thereunder may be finally determined and set at rest, thereby avoiding multiplicity of suits over a subject-matter which could still have been decided in the pending suit itself; (3) The proposed party has a defined, subsisting, direct and substantive interest in the litigation, which interest is either legal or equitable and which right is cognisable in law; (4) Meticulous care should be taken to avoid the adding of a party if it is intended merely as a ruse to ventilate certain other grievances of one or the other of the parties on record which is neither necessary or expedient to be considered by the Court in the pending litigation; and (5) It should always be remembered that considerable prejudice would be caused to the opposite party when irrelevant matters are allowed to be considered by Courts by adding a new party whose interest has no nexus to the subject-matter of the suit….” 6. Their Lordships of the Hon'ble Supreme Court in Amit Kumar Shaw v. Farida Khatoon reported in (2005) 11 SCC 403 have held that a person may be added as a party to the suit in following two cases i.e. (1) when he ought to have been added as a plaintiff or defendant, and is not joined so, or (2) when, without his presence, question in suit can not be completely decided. There is neither any illegality nor any perversity in the order passed by the learned Civil Judge (Junior Division)-I, Dharamshala. 7. Accordingly, there is no merit in the present petition and the same is dismissed, so also the pending applications, if any.