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2023 DIGILAW 270 (HP)

Jit Singh v. Kirpal Singh

2023-05-16

SANDEEP SHARMA

body2023
JUDGMENT : (Sandeep Sharma, J.) 1. Being aggrieved and dissatisfied with order dated 17.1.2019, passed by the learned Senior Civil Judge, Una, District Una, H.P., whereby an application under Order 1 Rule 10 CPC read with Section 151 CPC, having been filed by the respondents-plaintiffs ( herein after referred to as “the plaintiffs”), came to be allowed, petitioner-defendant (herein after referred to as “the defendant”), has approached this Court in the instant proceedings filed under Article 227 of the Constitution of India, praying therein to set-aside aforesaid impugned order. 2. Precisely, the facts of the case, as emerge from the record are that, plaintiffs namely S/s Kirpal Singh, Kashmir Singh, Gian Chand, Smt. Lag Devi, Sh. Mohinder Singh and Saroj Kumari filed suit bearing No. 823/13 for declaration and permanent injunction under Sections 34 to 38 of the Specific Reliefs Act, averring therein that they alongwith defendant No.1-Jit Singh i.e. petitioner herein and proforma respondent No.7 i.e. Rumal Singh, are owner in possession of the total land measuring 1-25-33, being LRs of late Sh. Harnam Singh i.e. real brother of the plaintiff No.1, respondent No.4 and respondent No.7. Since aforesaid Harnam Singh died issueless, all his brothers, who are plaintiffs herein, filed suit as detailed herein above, however petitioner defendant Jeet Singh, who is nephew of deceased Harnam Singh claimed that he is entitled to entire property left by the Harnam Singh on the strength of will, whereby deceased Harnam Singh bequeathed his entire property in the name of petitioner-defendant. 3. Petitioner defendant filed written statement to the suit, wherein he besides refuting the claim of the plaintiff on merit specifically raised issue with regard to non-joinder of the parties. Petitioner defendant claimed that Smt. Satya Devi and LRs of two other sisters of deceased Harnam Singh namely Dharam Dei and Vidya Devi, are required to be arrayed as plaintiffs. In the replication to the written statement, respondent-plaintiff specifically denied that suit filed by them is bad for non-joinder of the parties. On the basis of pleadings adduced on record by the respective parties, court below framed various issues including issue with regard to non-joinder of the parties. In the replication to the written statement, respondent-plaintiff specifically denied that suit filed by them is bad for non-joinder of the parties. On the basis of pleadings adduced on record by the respective parties, court below framed various issues including issue with regard to non-joinder of the parties. After recording of statements of witnesses of both the parties, but before leading evidence, if any, on additional issue framed by the court, respondents-plaintiffs filed an application under Order 1 Rule 10 CPC, praying therein for impleadment of Smt. Satya Devi, sister of the deceased Harnam Singh. Aforesaid prayer made by the plaintiffs came to be resisted by the petitioner-defendant on the ground that there is inordinate delay in filing the application and now with the filing of the application, an attempt has been made by the plaintiff to delay the further proceedings. Apart from above, petitioner defendant also claimed that in case prayer made by the respondents-plaintiffs is allowed, it would change the entire complexion of the suit, however, fact remains that court below ignoring all the objections taken by the petitioner-defendant proceeded to allow the application, as a result of which, Smt. Satya Devi, came to be impleaded as one of the plaintiffs. Since two other sisters namely Dharam Dei and Vidya Devi had expired, their legal heirs were not brought on record as they were not entitled to property, if any, of the deceased Harnam Singh. In the aforesaid background, petitioner defendant has approached this Court in the instant proceedings, praying therein to set-aside aforesaid order. 4. Having heard learned counsel for the parties and perused material available on record vis-à-vis reasoning assigned in the order impugned in the instant proceedings, this court finds that objection with regard to non-joinder of the parties was taken by the defendant i.e. petitioner herein, at the first instance by filing written statement and at that time, such plea, set up by the petitioner defendant was refuted by the respondent plaintiff by way of filing replication, wherein it was stated that suit is not bad for non-joinder of the parties. It is not in dispute inter-se parties that Smt. Satya Devi was one of the sisters of deceased Harnam Singh, who died issueless. 5. Mr. It is not in dispute inter-se parties that Smt. Satya Devi was one of the sisters of deceased Harnam Singh, who died issueless. 5. Mr. Sanjeev K. Suri, learned counsel for the petitioner defendant vehemently argued that since factum with regard to non-joinder of the parties had come to the knowledge of the plaintiffs-respondents immediately after filing of the written statement, there was no occasion for the court below to allow such prayer after an inordinate delay. Otherwise also, application under Order 1 Rule 10 CPC having been filed by the petitioner defendant was not maintainable as same was filed after closure of the evidence of both the parties. In support of his aforesaid submissions, he placed reliance upon judgment dated 20.9.2019 in CMPMO No. 324 of 2019, Rohit Thakur v. Santosh Kaur and judgment dated 2.6.2020, in CMPMO No. 550 of 2017 (alongwith connected matters), passed by this Court and coordinate Bench of this Court respectively, wherein it has been specifically held that since defendant had raised objection at the very first opportunity with regard to non-joinder of the parties, action, if any, taken by the respondent-plaintiffs to implead/array the party necessary for adjudication at subsequent stage of suit, especially before pronouncement of judgment, would mean to have been filed with the intention to delay the trial. 6. Mr. Y.P.Sood, learned counsel for the respondents-plaintiffs while inviting attention of this Court to the provision contained under Order 1 Rule 10 CPC, contended that application for impleadment of parties can be filed at any stage, before pronouncement of judgment. He stated that though objection with regard to non-joinder of the parties was taken by the petitioner-defendant at the first instance, but at that relevant time, respondent-plaintiff failed to take steps, but perusal of provision contained in Order 1 Rule 10 CPC casts duty upon the court to see the requirement of impleadment and deletion of the party, which may or may not be necessary for adjudication of the case. Mr. Sood further argued that in case prayer made by respondents-plaintiffs for impleadment of Smt. Satya Devi is not accepted, great prejudice shall be caused to the plaintiffs as well as person Smt. Satya Devi, because in that event, there would be multiplicity of the litigation. Mr. Sood further argued that in case prayer made by respondents-plaintiffs for impleadment of Smt. Satya Devi is not accepted, great prejudice shall be caused to the plaintiffs as well as person Smt. Satya Devi, because in that event, there would be multiplicity of the litigation. He further submitted that judgment pressed into service by the petitioner though lays down that when preliminary objection is taken by the defendant qua impleadment of the necessary parties, at the first instance, application, if any, for impleadment of necessary party at subsequent stage of the suit cannot be allowed because very object of Order 1 Rule 10 CPC is to discourage contests on technical grounds and to save honest and bona-fide claimants from being non-suited, but same is not applicable in the facts and circumstances of the present case because in that case, person sought to be arrayed was defendant, who after being arrayed as defendant was required to be provided opportunity to file written statement or lead the evidence, however, in the instant case, Smt. Satya Devi has been sought to be arrayed as plaintiff. 7. He also invited attention of this court to Section 21 of the Limitation Act to state that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith, it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. 8. Before ascertaining correctness and genuineness of the afore rival contentions raised by the learned counsel for the parties, it would be apt to reproduce provisions contained in Order 1 Rule 10 CPC herein below: “10. Suit in name of wrong plaintiff.-(1)Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) Court may strike out or add parties- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or 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, be added. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (4) Where defendant added, plaint to be amended—Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copes of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.” 9. Careful perusal of Order 1 Rule 10 CPC reveals that it casts duties upon the court to implead a person as plaintiff or defendant if he or she is necessary for adjudication of the case. Similarly, aforesaid provision further empowers the court to order deletion of the name of the party, which may not be necessary for adjudication of the case. Though provision contained under Order10 (2) empowers the party to the litigation to file application seeking impleadment or deletion of name of the person but aforesaid provision also casts duty upon the court to order impleadment or deletion of the party, who may or may not be necessary for adjudication of the controversy inter-se parties. Though provision contained under Order10 (2) empowers the party to the litigation to file application seeking impleadment or deletion of name of the person but aforesaid provision also casts duty upon the court to order impleadment or deletion of the party, who may or may not be necessary for adjudication of the controversy inter-se parties. No doubt, in the case at hand, objection with regard to non-joinder of Smt. Satya Devi, wife of the deceased Harnam Singh was taken at the first instance by filing the written statement, but once it is not in dispute that Smt. Satya Devi being sister of Harnam Singh has also right in property of late Harnam Singh, adjudication of the rights of the LRs of deceased Harnam Singh qua the property left by Harnam Singh in the absence of Smt. Satya Devi, would not adversely affect the rights of Satya Devi, but would lead to multiplicity of litigation. Entire suit filed by the respondents-plaintiffs is with regard to property left by the deceased Harnam Singh. Since deceased Harnam Singh died issueless, his LRs i.e. respondent-plaintiffs and petitioner-defendant are claiming their right over the same. Respondents-plaintiffs being LRs are claiming property of the deceased Harnam Singh, whereas petitioner defendant has set up a case that he is entitled to the property left out by the Harnam Singh on the strength of will allegedly executed in his favour by the deceased Harnam Singh. Since suit has been filed by the respondents claiming themselves to be his LRs, it was incumbent upon them to implead Smt. Satya Devi as well as other two sisters, who now have expired because in the event of their suit being allowed, all the LRs of Harnam Singh would be entitled to property, but since Smt. Satya Devi, who is also one of the legal heirs was not made party, suit filed by the respondents-plaintiffs can be dismissed for non-joinder of the parties. 10. Though it has been vehemently argued by Mr. Sanjeev K. Suri, learned counsel for the petitioner-defendant that an attempt has been made by the respondent-plaintiffs to fill up a lacuna, by way of filing application for impleadment of Satya Devi and her impleadment would cause further delay in adjudication of the case, however, this Court is not impressed with the aforesaid submission of Mr. Sanjeev K. Suri, learned counsel for the petitioner-defendant that an attempt has been made by the respondent-plaintiffs to fill up a lacuna, by way of filing application for impleadment of Satya Devi and her impleadment would cause further delay in adjudication of the case, however, this Court is not impressed with the aforesaid submission of Mr. Suri for the reason that Smt. Satya Devi has not been ordered to be impleaded as defendant, rather she has been ordered to be impleaded as plaintiff, meaning thereby, her interest would be similar to the interest of the plaintiffs, who have not only filed pleadings but have also led evidence. Mr. Y.P. Sood, learned counsel for the respondents-plaintiffs also stated before this Court that no adjournment shall be sought by the newly impleaded Satya Devi and case can be decided by the court below on the basis of pleadings as well as evidence already led on record. His statement is taken on record. 11. Division Bench of this Court in Smt. Shyampati v. Munshi Ram and Ors, 2002 (1) Shim. L.C. 328, has categorically held that so far as the proviso of Order 1 Rule 10 (1) and (2) is concerned, it is to help the honest plaintiff who by committing bona fide mistake has not added the necessary parties. Most importantly, in the aforesaid judgment, Division Bench of this Court has held that duty is cast upon the court to ensure impleadment of necessary parties so that there is no multiplication of litigation at subsequent stage. Relevant para of the aforesaid judgment, reads as under: “21. So far the proviso of Order 1 Rule 10(1) and (2) is concerned, it is to help the honest plaintiff who by committing bona fide mistake has not added the necessary parties and who is ready and willing to amend his suit as and when the defect is pointed out. Relevant para of the aforesaid judgment, reads as under: “21. So far the proviso of Order 1 Rule 10(1) and (2) is concerned, it is to help the honest plaintiff who by committing bona fide mistake has not added the necessary parties and who is ready and willing to amend his suit as and when the defect is pointed out. Though, the Court has a wide discretion in the matter of joinder of necessary or proper party, it must be exercised in a reasonable manner so as not to cause inconvenience or embarassment to the plaintiff who is the dominus litis and in exceptional cases, where the Court is satisfied that the presence of a particular person is absolutely necessary to effectively and completely adjudicate upon and settle all the points involved in the suit, it can implead that party as a defendant notwithstanding the objection of the plaintiff. But this power should be exercised so as not to introduce a new cause of action or alter the nature of the suit. It should be exercised at the stage of trial and avoided to be exercised at the appeal stage, more so, if despite objections at the earliest the plaintiff fails to implead the necessary parties.” 12. Hon’ble Apex Court in Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and Ors., 1992 (2) SCC 524 has held that Sub-rule (2) of Rule 10 gives wide discretion to the Court to meet every case of defect of parties and is not affected by the inaction of the plaintiff to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touch stone of Order I Rule 10 which provides that only a necessary or a proper party may be added. Relevant paras of the aforesaid judgment read as under: “It was argued that the Court cannot direct addition of parties against the wishes of the plaintiff who cannot be compelled to proceed against a person against whom he does not claim any relief. Plaintiff is no doubt dominus litis and is not bound to sue every possible adverse claimant in the same suit. Plaintiff is no doubt dominus litis and is not bound to sue every possible adverse claimant in the same suit. He may choose to implead only those persons as defendants against whom he wishes to proceed though under Order I Rule 3, to avoid multiplicity of suit and needless expenses, all persons against whom the right to relief is alleged to exist may be joined as defendants. However, the Court may at any stage of the suit direct addition of parties. A party can be joined as defendent even though the plaintiff does not think that he has any cause of action against him. Rule 10 specifically provides that it is open to the Court to add at any stage of the suit a necessary party or a person whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. 6. Sub-rule(2) of Rule 10 gives a wide discretion to the Court to meet every case of defect of parties and is not affected by the inaction of the plaintiff to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touch stone of Order I Rule 10 which provides that only a necessary or a proper party may be added. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. The addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case.” 13. In case titled Savitri Devi v. District Judge, Gorakhpur and Ors, 1999 (2) SCC 577 , Hon’ble Apex Court held that under Order I Rule 10 C.P.C., court at any stage can add 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. Most importantly, Hon’ble Apex Court in the aforesaid judgment held that avoidance of multiplicity of proceedings is also one of the objects of the said provision in the Code. Relevant para of the aforesaid judgment reads as under: “9. 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.” 14. In Pankajbhai Rameshbhai Zalavadiya v. Jethabhai Kalabhai Zalavadiya (deceased) through Legal Representatvies and Ors, 2017 (9) SCC 700 , Hon’ble Apex Court has again reiterated that Order 1 Rule 10 of the Code enables the Court to add any person as a party at any stage of the proceedings, if the person whose presence in Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Relevant para of the aforesaid judgment reads as under: “10.Order 1 Rule 10 of the Code enables the Court to add any person as a party at any stage of the proceedings, if the person whose presence in 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. Order 1 Rule 10 of the Code empowers the Court to substitute a party in the suit who is a wrong person with a right person. If the Court is satisfied that the suit has been instituted through a bona fide mistake, and also that it is necessary for the determination of the real matter in controversy to substitute a party in the suit, it may direct it to be done. When the Court finds that in the absence of the persons sought to be impleaded as a party to the suit, the controversy raised in the suit cannot be effectively and completely settled, the Court would do justice by impleading such persons. When the Court finds that in the absence of the persons sought to be impleaded as a party to the suit, the controversy raised in the suit cannot be effectively and completely settled, the Court would do justice by impleading such persons. Order 1 Rule 10(2) of the Code gives wide discretion to the Court to deal with such a situation which may result in prejudicing the interests of the 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.” 15. Having perused aforesaid exposition of law laid down by the Hon’ble Apex Court as well as this Court, it can be safely inferred that though party to the litigation can file application, seeking therein impleadment and deletion of the party arrayed as plaintiff or defendant but provision contained in Order 1 Rule 10 CPC also casts duty upon the court to ensure impleadment and deletion of the party, which may or may not be necessary for adjudication of the case. No doubt, in the case at hand, application under Order 1 Rule 10 CPC came to be filed by the respondents- plaintiffs after recording of the evidence, but before pronouncement of the judgment. Since respondents-plaintiffs filed suit for declaration that they are entitled to property of the deceased Harnam Singh being his LRs coupled with the fact that objection with regard to non-joinder of necessary party had come on record with the filing of written statement, it was duty of the court to invoke provisions contained under Order 1 Rule 10 CPC to order impleadment of all the LRs of the deceased Harnam Singh. No doubt, provisions of Order 1 Rule 10 CPC cannot be permitted to be invoked for filling up lacuna, if any, but definitely such provision is required to be invoked by the court to ensure that there is no multiplicity of litigation subsequently on account of non-impleadment of the party, which is necessary for adjudication of the controversy before it. 16. Consequently, in view of the detailed discussion made herein above as well as law taken into consideration, this Court finds no illegality and infirmity in the impugned order and as such, same is upheld, accordingly, present petition is dismissed being devoid of any merits. 16. Consequently, in view of the detailed discussion made herein above as well as law taken into consideration, this Court finds no illegality and infirmity in the impugned order and as such, same is upheld, accordingly, present petition is dismissed being devoid of any merits. However, costs quantified by the court below while passing impugned order is enhanced from Rs. 3500/- to Rs. 10,000/- being on lower side. As such, present petition is disposed of alongwith pending applications, if any.