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2023 DIGILAW 304 (HP)

Surinder Pal v. Joginder Singh

2023-05-25

AJAY MOHAN GOEL

body2023
JUDGMENT : Ajay Mohan Goel, J. By way of this petition, filed under Article 227 of the Constitution of India, the petitioner has challenged order dated 09.09.2021, passed by the Court of learned Senior Civil Judge, Nadaun, District Hamirpur, H.P. in CMA Registration No.279 of 2021, in terms whereof, an application filed under Order 1, Rule 10 of the Civil Procedure Code by the respondent for impleading the present petitioner as defendant No.2 in the Civil Suit filed by the present respondent has been dismissed. 2. Brief facts necessary for the adjudication of the present petition are that the respondent/plaintiff (hereinafter to be referred as the ‘plaintiff’) filed a suit for declaration that he was owner in possession of the suit property and the mutation attested in favour of Surinder Pal on the basis of a Will executed on 19.05.2003 by late father of the parties was bad in law, as Will dated 19.05.2003 was not the last Will of their late father and the same was superseded by another Will of their late father which was executed on 03.04.2008. A perusal of the memo of parties, as it finds mentioned in the Civil Suit, demonstrates that Surinder Pal son of Shri Durga Singh, resident of Village Mandu, Mauja Saproh, Tehsil Nadaun, District Hamirpur, H.P. was impleaded as defendant through his General Power of Attorney Smt. Aasha Devi. 3. After her service in the written statement which was filed by Aasha Devi, copy whereof is on record as Annexure P2, it was mentioned therein that the suit was not maintainable against the wife of Surinder Pal, who was residing abroad and the filing of the suit through the wife of Surinder Pal, who had no authority to appear on behalf of Surinder Pal, as she was not authorized by Surinder Pal by way of any document or execution of Attorney to represent her, was bad in law. The Civil Suit was filed in the year 2012. 4. The Court stands informed that after the exchange of pleadings, issues were framed and even the evidence of the parties was recorded. Thereafter, the plaintiff filed an application under Order 23, Rule 1 (3) of the Civil Procedure Code, seeking leave of the Court to withdraw the suit with liberty to file a fresh suit on the same cause, on the ground that there was a formal defect in the plaint. Thereafter, the plaintiff filed an application under Order 23, Rule 1 (3) of the Civil Procedure Code, seeking leave of the Court to withdraw the suit with liberty to file a fresh suit on the same cause, on the ground that there was a formal defect in the plaint. This application was, however, rejected by the learned Trial Court and the order passed by the learned Court below was upheld in CMPMO No.161 of 2018, titled as Joginder Singh Versus Surinder Pal, decided on 29.09.2020. 5. Thereafter, an application was filed under Order 1, Rule 10 of the Civil Procedure Code by the plaintiff to implead Surinder Pal son of Shri Durga Singh, resident of Village Mandu, Mauja Saproh, Tehsil Nadaum, District Hamirpur, H.P. as defendant No.2, in which it was averred that the plaintiff had filed a suit for declaration that he and proposed defendant were cosharers in joint possession of the suit land and that deceased Durga Singh, predecessor-in-interest of the parties had executed a Will on 19.05.2023, which was replaced by Will dated 03.04.2008. The plaintiff had filed an application under Order 23, Rule 1(3) of the Civil Procedure Code in the Civil Suit for withdrawal of the same which was dismissed and in the petition preferred before the High Court, the Court directed the plaintiff that if the plaintiff intended to file any application for impleadment then the same be decided by the learned Court as per law. Hence, the application was being filed for impleadment of Shri Surinder Pal as defendant No.2 as he was a very clever person and serving abroad, who used to come to his native place occasionally and serving whom was extremely tough, because of which he was earlier impleaded as a party defendant through his wife. It was further mentioned in the application that as on account of the act and conduct of the proposed defendant, the applicant was unable to serve him and implead him as a party, therefore, defendant No.2 was now being impleaded as a party as he was a necessary party. 6. The application was resisted by the proposed defendant, who denied all the allegations made in the application as well as reasoning assigned therein, seeking his impleadment as defendant No.2. In terms of the impugned order, dated 09.09.2021, the application has been allowed by assigning the following reasons: “I have heard ld. 6. The application was resisted by the proposed defendant, who denied all the allegations made in the application as well as reasoning assigned therein, seeking his impleadment as defendant No.2. In terms of the impugned order, dated 09.09.2021, the application has been allowed by assigning the following reasons: “I have heard ld. counsel for both the parties and have gone through the case file with minute care and caution. The plaintiff has filed a suit against the proposed defendant No 2 Surinder Pal through his wife Smt Asha Devi declaring himself to be owner in possession of the suit land as mentioned in the head note of the plaint as per Will dated 03.04.2008 By moving application in hand, the plaintiff intends to implead Surinder Pal as defendant No 2 against whom he has already filed the present suit through his wife Smt. Asha Devi. It has been averred in the application that proposed defendant No 2 Surinder Pal resides abroad and his whereabouts were not known/not disclosed by the opposite party, due to which in order to avoid delay in his service, he chose to file the suit against Surinder Pai through his wife rather than impleading him in person. I have perused the entire record alongwith order passed by Hon'ble High Court of HP. in revision preferred by the plaintiff against order of this court dated 18.04.2018 passed on an application under Order 23 Rule 1 (3) CPC The Hon'ble High Court of H.P. has categorically referred such mistake of the applicant as merely technical defect which can be cured by filing appropriate application for impleadment of the parties or by way of amendment of the plaint. As observed above, the name of proposed defendant No.2 Surinder Pal is already mentioned in th list of parties, though he has been made a party through his wife rather than in person. If, in case, application in hand is not allowed, the case would fail on this very sole ground and will not be decided on merit and the entire purpose of justice will fail. Merely technical defect cannot be allowed to come on the way in imparting justice and delay can definitely be compensated by imposing costs. Accordingly application is allowed, subject to costs of Rs 2000/Application accordingly disposed of which after due completion, be tagged with case file.” 7. Merely technical defect cannot be allowed to come on the way in imparting justice and delay can definitely be compensated by imposing costs. Accordingly application is allowed, subject to costs of Rs 2000/Application accordingly disposed of which after due completion, be tagged with case file.” 7. Having heard learned counsel for the parties and having carefully gone through the pleadings as well as the documents appended therewith, this Court is of the considered view that in the backdrop of peculiar circumstances of the present case, learned Court has gravely erred in allowing the application. 8. It was the plaintiff who filed the suit for declaration and in his wisdom, he impleaded Surinder Pal as defendant No.1 through his wife Smt. Aasha Devi. In the written statement which was filed by Aasha Devi, a categorical stand was taken by her that the suit was not maintainable, as she had no legal right to represent Surinder Pal, as she had not been authorized by Surinder Pal to do. Yet, no remedial measures were taken by the plaintiff and he opted to proceed with the case in the teeth of the objections taken by Aasha Devi with regard to the maintainability of the suit. Thereafter, issues were framed and evidence was also led. The application filed under Order 23, Rule 1 (3) of the Civil Procedure Code, seeking withdrawal of the suit with liberty to file a fresh one on the same cause was dismissed and thereafter, the application was filed under Order 1, Rule 10 of the Civil Procedure Code for impleadment of Surinder Pal as defendant No.2 is his own capacity on the basis of the reasoning assigned in the application. 9. In fact, the reasoning which has been assigned in the application for impleading Surinder Pal as defendant No.2 is cryptic and in fact the same does not even makes any sense. No cogent explanation has been given by the plaintiff in the application as to why the said defendant was not properly sued initially as defendant No.1. 10. 9. In fact, the reasoning which has been assigned in the application for impleading Surinder Pal as defendant No.2 is cryptic and in fact the same does not even makes any sense. No cogent explanation has been given by the plaintiff in the application as to why the said defendant was not properly sued initially as defendant No.1. 10. Order 1, Rule 10 of the Civil Procedure Code, inter alia, provides that 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 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. In fact the provisions of Order 1, Rule 9 of the Civil Procedure Code categorically provide that no suit shall be defeated by reason of the misjoinder or nonjoinder of the parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it, provided that nothing in this Section shall apply to non-joinder of a necessary party. This means that in the event of the non-joinder of a necessary party, a suit can be defeated. 11. This means that in the event of the non-joinder of a necessary party, a suit can be defeated. 11. When one applies this principle on the factual matrix involved in the present case, one finds that after the suit was filed in the manner as already stands elaborated hereinabove, by arraying Surinder Pal as defendant through his wife and when objection was taken with regard to the maintainability of the suit by way of written statement, which was filed by the wife of Surinder Pal, the plaintiff was made aware by the other side with regard to incorrect impleadment of Surinder Pal, yet, even after this caveat, the plaintiff continued to pursue the matter and it was at a very late stage when even the application under Order 23, Rule 1 (3) of the Civil Procedure Code, seeking leave of the Court to withdraw the suit was dismissed, that the application under Order 1, Rule 10 of the Civil Procedure Code stood filed. In fact, it can be held without any fear or contradiction that this application was filed only when it became imminent to the plaintiff that the suit was liable to be dismissed for non-impleadment of necessary party. 12. Learned Trial Court while allowing the application has nowhere dealt with all these issues and has allowed the application in a mechanical manner by observing that this Court in the order passed in the proceedings under Order 23, Rule 1 (3) of the Civil Procedure Code had referred to such mistake of the applicant as a technical defect which could be cured by filing application for impleadment of party by way of amendment of plaint, without appreciating that this Court in fact had just made an observation in this regard and had thereafter categorically held that if an application is filed for impleadment/amendment, then the learned Trial Court was bound to decide the same in accordance with law. However, rather than deciding the application in accordance with law, learned Trial Court took the observations made by this Court in the previous litigation between the parties as a cue to allow the application. However, rather than deciding the application in accordance with law, learned Trial Court took the observations made by this Court in the previous litigation between the parties as a cue to allow the application. Besides this, learned Trial Court also erred in not appreciating that the defect in impleadment was not merely a technical defect, but it was a defect which was to go to the root of the maintainability of the suit per se and at a later stage, the plaintiff could not have been permitted to use the procedural law to circumvent a right which stood crystallized upon the present petitioner on account of the acts of omission and commission of the plaintiff himself. 13. Accordingly, in view of the observations made hereinabove, as this Court finds order dated 09.09.2021, passed by the learned Trial Court, in terms whereof, the application filed by the respondent, under Order 1, Rule 10 of the Civil Procedure Code was allowed, to be bad in law, the present petition is allowed and impugned order dated 09.09.2021, passed by the Court of learned Senior Civil Judge, Nadaun, District Hamirpur, H.P., in CMA No.279/2021, in Civil Suit No.180/2012, Registration No.929/2017, in terms whereof, an application filed under Order 1, Rule 10 of the Civil Procedure Code by the respondent for impleading the present petitioner as defendant No.2 was allowed, is quashed and set aside. 14. Petition stands disposed of, so also the pending miscellaneous applications, if any. Interim orders, if any, stand vacated.