Sreedhar Pani and ors. Vs. State of Orissa and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - before directing a party to be impleaded, the court must be satisfied about the genuineness of his interest in the litigation. ghanashyam, ilr (1963) cut 841: (air 1963 orissa 186), it was laid down that two tests must be satisfied before a third party can be impleaded under o, 1. rule 10 (2) code of civil procedure. 187);-two conditions must, however, be satisfied before a party is considered to be a necessary party.orderp.k. mohanti, j.1. this revisional application is directed against an order allowimg an application under order 1, rule 10 code of civil procedure filed by opposite parties 4 to 16 for being impleaded as defendants in the suit.2. the petitioners as plaintiffs brought title suit. no. 7 of 1977 against opposite parties 1 to 3 for declaration of title to the suit land and for a permanent injunction restraining them from interfering with their possession. it was alleged that by the alluvial action of the river paika there was accretion to the rayati holding of the plaintiffs to an extent of 17 acres and the plaintiffs are entitled to the accreted land as an increment to their tenure. opposite parties 4 to 16 filed an application under order 1, rule 10 code of civil procedure for being impleaded as parties to the suit alleging that they had taken temporary lease of the suit land from the tahasildar, kujang and after expiry of the lease they have been continuing in possession of the land and have also constructed a house thereon. the application was opposed by the plaintiffs. they denied the allegation that the opposite parties 4 to 16 were continuing possession of the lands after expiry of the annual lease in their favour.3. the learned munsif came to hold that the petitioners and opposite parties 4 to 16 have been quarrelling over the possession of the suit lands since last few years; that it was just and proper to decide the suit in presence of opposite parties 4 to 16 so as to avoid multiplicity of proceedings and that prima facie the opposite parties 4 to 16 are necessary parties to the suit. upon such findings, he directed the petitioners to implead opposite parties 4 to 16 as defendants in the suit.4. it is urged on behalf of the petitioners that opposite parties 4 to 16 have no semblance of title or interest in respect of the suit lands and they are neither necessary nor proper parties to the suit.5. sub-rule (2) of rule 10 of order 1, code of civil procedure provides as follows :--'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.''the sub-rule is applicable to two types of cases:--(i) where a person ought to have been joined as a plaintiff or defendant and is not so joined and(ii) where without his presence the question in the suit cannot be completely and effectually adjudicated upon.6. the sine qua non for any person being impleaded as a party to a suit is that he should have a direct or tangible interest in the subject matter. if the questions involved in the suit can be decided without the proposed party, the judicial discretion vested in the court to implead parties under order 1, rule 10(2) code of civil proceedure should not be exercised. before directing a party to be impleaded, the court must be satisfied about the genuineness of his interest in the litigation.7. in the case of narahari v. ghanashyam, ilr (1963) cut 841: (air 1963 orissa 186), it was laid down that two tests must be satisfied before a third party can be impleaded under o, 1. rule 10 (2) code of civil procedure. it. was laid down as follows (at p. 187);--'two conditions must, however, be satisfied before a party is considered to be a necessary party. they are : (i) there must be a right to some relief against the party not joined. this means that no decree can be passed without affecting the rights of the absentee-parties; and (ii) the presence of the absentee-party should be necessary in order to enable the court to effectually adjudicate upon and settle all questions involved in the suit. this concept includes the idea that no decree should be passed by court which would be rendered infructuous or would become ultimately inexecutable. if a case satisfies these tests, then the absentee-party is a necessary party and the suit cannot be effectually and completely adjudicated upon in respect of all questions involved without that party being impleaded in the suit.'8. in the instant case, the question involved in the suit is whether the suit land is an accretion to the rayati holding of the plaintiffs and whether they are entitled to possess the same as an increment to their tenure. the plaintiffs' contention is that they have been in continuous possession of the suit land as a part and parcel of their raiyati holding. the materials on the record show that there was a proceeding tinder section 145, code of criminal procedure between the petitioners and the opposite parties 4 to 16 and by the final order of the criminal court made on 28-7-1975, possession of the petitioners was declared. the petitioners have filed rent receipts and settlement parcha in proof of their possession of the suit lands. the opposite parties 4 to 16 contended that the suit land belongs to the government and they cultivated the same on the basis of an annual lease granted in their favour by the tahasildar, kujang, it was also contended that after expiry of the annual lease they have been continuing possession of the lands.9. as mentioned earlier, possession of the petitioners over the land in dispute was declared in a proceeding under section 145, code of criminal procedure on 28-7-1975. the contention of the opposite parties 4 to 16 that they have been continuing possession of the suit lands could not, therefore, be believed. if the question at issue between the petitioners and the state of orissa can be worked out without anyone else being brought in, a stranger should not be added as party.10. the plaintiffs have not asked forrecovery of possession. they claim to bein possession after termination of theproceeding under section 145 code ofcriminal procedure, the dispute regarding possession, if any, between the petitioners and opposite parties nos. 4 to 16need not be gone into before any reliefcan be granted to the plaintiffs in thepresent suit filed against the state oforissa and its officers. the decree that isto be passed against the defendantscannot be rendered infructuous or inexecutable if the opposite parties 4 to 16are not added as parties. merely becausethe opposite parties 4 to 16 allege thatthey are in possession of the land evenafter expiry of the annual lease, theycannot be considered to be proper ofnecessary parties. the court had, therefore, no jurisdiction to add them asparties to the suit.11. i am in respectful agreement with the observations made by sarkaria, j. in banarasi dass v. panna lal, air 1969 punj and har 57 that (at p. 60) :---'as a rule the court should not add a person as a defendant in a suit when the plaintiff is opposed to such addition. the reason is that the plaintiff is the dominus litis. he is the master of the suit. he cannot be compelled to fight against a person against whom he does not wish to fight and against whom he does not claim any relief'.12. in the result, the civil revision is allowed and the order of the court below directing the plaintiffs to add opposite parties 4 to 16 as defendants in the suit is set aside. in the circumstances of the case, i make no order as to costs.

Judgment:
ORDER

P.K. Mohanti, J.

1. This revisional application is directed against an order allowimg an application under Order 1, Rule 10 Code of Civil Procedure filed by opposite parties 4 to 16 for being impleaded as defendants in the suit.

2. The petitioners as plaintiffs brought Title Suit. No. 7 of 1977 against opposite parties 1 to 3 for declaration of title to the suit land and for a permanent injunction restraining them from interfering with their possession. It was alleged that by the alluvial action of the river Paika there was accretion to the rayati holding of the plaintiffs to an extent of 17 acres and the plaintiffs are entitled to the accreted land as an increment to their tenure. Opposite parties 4 to 16 filed an application under Order 1, Rule 10 Code of Civil Procedure for being impleaded as parties to the suit alleging that they had taken temporary lease of the suit land from the Tahasildar, Kujang and after expiry of the lease they have been continuing in possession of the land and have also constructed a house thereon. The application was opposed by the plaintiffs. They denied the allegation that the opposite parties 4 to 16 were continuing possession of the lands after expiry of the annual lease in their favour.

3. The learned Munsif came to hold that the petitioners and opposite parties 4 to 16 have been quarrelling over the possession of the suit lands since last few years; that it was just and proper to decide the suit in presence of opposite parties 4 to 16 so as to avoid multiplicity of proceedings and that prima facie the opposite parties 4 to 16 are necessary parties to the suit. Upon such findings, he directed the petitioners to implead opposite parties 4 to 16 as defendants in the suit.

4. It is urged on behalf of the petitioners that opposite parties 4 to 16 have no semblance of title or interest in respect of the suit lands and they are neither necessary nor proper parties to the suit.

5. Sub-rule (2) of Rule 10 of Order 1, Code of Civil Procedure provides as follows :--

'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.''

The sub-rule is applicable to two types of cases:--

(i) where a person ought to have been joined as a plaintiff or defendant and is not so joined and

(ii) where without his presence the question in the suit cannot be completely and effectually adjudicated upon.

6. The sine qua non for any person being impleaded as a party to a suit is that he should have a direct or tangible interest in the subject matter. If the questions involved in the suit can be decided without the proposed party, the judicial discretion vested in the court to implead parties under Order 1, Rule 10(2) Code of Civil Proceedure should not be exercised. Before directing a party to be impleaded, the court must be satisfied about the genuineness of his interest in the litigation.

7. In the case of Narahari v. Ghanashyam, ILR (1963) Cut 841: (AIR 1963 Orissa 186), it was laid down that two tests must be satisfied before a third party can be impleaded under O, 1. Rule 10 (2) Code of Civil Procedure. It. was laid down as follows (at p. 187);--

'Two conditions must, however, be satisfied before a party is considered to be a necessary party. They are : (i) there must be a right to some relief against the party not joined. This means that no decree can be passed without affecting the rights of the absentee-parties; and (ii) the presence of the absentee-party should be necessary in order to enable the Court to effectually adjudicate upon and settle all questions involved in the suit. This concept includes the idea that no decree should be passed by Court which would be rendered infructuous or would become ultimately inexecutable. If a case satisfies these tests, then the absentee-party is a necessary party and the suit cannot be effectually and completely adjudicated upon in respect of all questions involved without that party being impleaded in the suit.'

8. In the instant case, the question involved in the suit is whether the suit land is an accretion to the rayati holding of the plaintiffs and whether they are entitled to possess the same as an increment to their tenure. The plaintiffs' contention is that they have been in continuous possession of the suit land as a part and parcel of their raiyati holding. The materials on the record show that there was a proceeding tinder Section 145, Code of Criminal Procedure between the petitioners and the opposite parties 4 to 16 and by the final order of the criminal court made on 28-7-1975, possession of the petitioners was declared. The petitioners have filed rent receipts and settlement parcha in proof of their possession of the suit lands. The opposite parties 4 to 16 contended that the suit land belongs to the Government and they cultivated the same on the basis of an annual lease granted in their favour by the Tahasildar, Kujang, It was also contended that after expiry of the annual lease they have been continuing possession of the lands.

9. As mentioned earlier, possession of the petitioners over the land in dispute was declared in a proceeding under Section 145, Code of Criminal Procedure on 28-7-1975. The contention of the opposite parties 4 to 16 that they have been continuing possession of the suit lands could not, therefore, be believed. If the question at issue between the petitioners and the State of Orissa can be worked out without anyone else being brought in, a stranger should not be added as party.

10. The plaintiffs have not asked forrecovery of possession. They claim to beIn possession after termination of theproceeding under Section 145 Code ofCriminal Procedure, The dispute regarding possession, if any, between the petitioners and opposite parties Nos. 4 to 16need not be gone into before any reliefcan be granted to the plaintiffs in thepresent suit filed against the State ofOrissa and its officers. The decree that isto be passed against the defendantscannot be rendered infructuous or inexecutable if the opposite parties 4 to 16are not added as parties. Merely becausethe opposite parties 4 to 16 allege thatthey are in possession of the land evenafter expiry of the annual lease, theycannot be considered to be proper ofnecessary parties. The court had, therefore, no jurisdiction to add them asparties to the suit.

11. I am in respectful agreement with the observations made by Sarkaria, J. in Banarasi Dass v. Panna Lal, AIR 1969 Punj and Har 57 that (at p. 60) :---

'As a rule the Court should not add a person as a defendant in a suit when the plaintiff is opposed to such addition. The reason is that the plaintiff is the dominus litis. He is the master of the suit. He cannot be compelled to fight against a person against whom he does not wish to fight and against whom he does not claim any relief'.

12. In the result, the civil revision is allowed and the order of the court below directing the plaintiffs to add opposite parties 4 to 16 as defendants in the suit is set aside. In the circumstances of the case, I make no order as to costs.