Khushi Ram Vs. Lal Man and ors. - Court Judgment

Sultan Singh, J.

(1) The question for decision in this civil revision under section 115 of the Code of Civil Procedure is : whether Gaon Sabha Khera Delhi through its Pradhan (respondent No. 9) should be imp leaded as a deantant the suit filed by the petitioner against respondent No. 1 to 8?

(2) Briefly the facts arc that the petitioner/plaintiff on 24.1.1978 filed a suit against respondents No. 1 to 8 for permanent injunction restraining them from interfering in his possession of the Gher in suit alleging that he and the defendants were members of the Proprietory body of the village Khera Kalan, Delhi, that a plot of land belonging to him in the abad' Deh of the said village decended to him from his ancestors and that the same was and is being used as a 'Gher' by his ancestors for storing their agricultural products and tethering of their catties, that the Gher was bound by a boundry wall of about 8 feet with a Gate which could be locked and that there has been a well at a distance of about 4 feet from the said Gher which wag made over to the public for public usage. It is further alleged that there are thoroughfares on all sides of said Gher, that defendants No. 1 to 4 have their houses on the Eastern side while defendants No. 4 to 8 have their houses on the Western side of his Gher. The plaintiff alleges that defendant No. 5, a sub-Inspector in police joined hands with other defendants with a view to divert him from the said Gher, that defendants influenced the Pradhan of the Gaon Sabha to take steps against him and thereforee, the Pradhan interferred with the plaintiffs possession with the result that the plaintiff in July 1977 filed a suit for injunction against the Gaon Sabha Kera Kalan, Delhi. The Pradhan of that Gaon Sabha accepted the factual possession and ownership of the plaintiff. On the statement of the Gaon Sabha that it would not interfere in the plaintiff's possession, the previous suit of the plaintiff against Gaon Sabha was disposed of on 20.9.77 by the Subordinate Judge, Delhi. The plaintiff further alleges that as Gaon Sabha did not act according to the wishes of the defendants, they on the night intervening 23/24th December, 1977 demolished the boundary wall of the Gher and removed articles belonging to him and thus they interferred in his possession. A report was lodged but on account of the influence of the defendant No. 5 who is a Sub-Inspector in the police, no action was taken. The plaintiff thereforee, alleges that he is owner in possession of the Gher and that the defendants have no right or interest to interfere with his possession, that they are under an obligation not to disturb his peaceful possession.

(3) The defendants in their written statement allege that there is no Gher in existence as alleged by the plaintiff, that Gaon Sabha is a necessary party besides other defenses. Various issues were framed by the trial Court on 12-10-78. Issues No. 1, 2 and 3 are as follows :

(1)Whether the suit is not maintainable for non-joining of necessary parties (2) Whether the plaintiff is the owner in possession of the Gher in dispute (3) Whether there existed no cause of action in favor of the plaimiff due to the non-existence of Gher/plot in dispute ?

(4) On 24-10-79 Gaon Sabha Khera Kalan made an application under Order I Rule 10 of the Code of Civil Procedure for being imp leaded as a defendant alleging that the site in question is a common thoroughfare, that it belongs to the Gaon Sabha, that the plaintiff in collusion with the village Pradhan in 1977 filed a suit in which the Pradhan consented to the decree being passed against Gaon Sabha, that the Court dismissed the earlier suit of the plaintiff against Gaon Sabha on its undertaking. It is further alleged that the previous suit was a collusive one and that Gaon Sabha has a right to retain it as a thoroughfare. The trial Court by the impugned order dated 28-8-81 directed the plaintiff to implead Gaon Sabha as defendant No. 9 in the case holding that there are disputes of ownership, possession and nature of the land in question, that Gaon Sabha is a necessary party and that Gaon Sabha would be prejudiced if it was not made a party to the suit. The plaintiff has filed this revision. His contention is that the impugned order is without jurisdiction and auffers from material irregularity and illegality in the exercise of jurisdiction. His submission is that the trial Court has no jurisdiction to implead a defendant unless the case is covered by Order 1 Rule 10(2) of the Code of Civil Procedure. The relevant portion of Order 1 Rule 10(2) of the Code for impleading a party reads as under :

'THECourt may at any stage of 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 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.'

(5) A bare reading of this provision shows that the Court has power to direct a person to be made a party to the suit if such a person is a necessary party or that the Court feels the necessity of impleading him with a view to adjudicate upon all the questions involved in the suit. The questions involved in the suit would mean the questions concerning the parties to the suit and not with the questions concerning third party. In short the Court has to determine if such a person ought to have been joined as party. In other words Court has to determine whether such a person is a necessary party without whose presence no relief could be granted to the plaintiff or the defendant. In the alternative the Court has to determine whether the presence of any such person was necessary to decide the disputes between the parties to the suit. In other words it would mean that if a person was a necessary party to the Court must order for the addition of that person as party to the suit. In case such a party was only a proper parly then that can be added if the Court holds that to decide dispute between the parties, his presence was necessary. These are the two circumstances prescribed by this provision of law under which a person can be made aparty to the suit. Order 1 Rule 9 of the Code of Civil Procedure provides that by reasons of misguide and nonjoinder of parties, the Court will not dismiss the suit. It has been further provided that Rule 9 of Order 1 of the Code would not apply where a necessary parly was not joined to the suit. In other words, it means that if a necessary party is not before the Court, then the suit may be dismissed. In view of these provisions it is clear that if a party is a necessary party such a person must be added as a party to the litigation. If such a party is a proper party, the Court may consider whether his presence was necessary to decide the case. The Court has to exercise its discretion while impleading a party. In the instant case the disputes between the plaintiff and defendants No. 1 to 8 are : whether the plaintiff is owner in possession and entitled to the injunction restraining the defendants from interfering wiih his possession. The rights of the Gaon Sabha, if any, are independent of the rights of the plaintiff and defendants. If the plaintiff fails to prove his possession of the Gher or if he fails to prove the existence of the Gher, the suit may be dismissed at the instance of the defendants. If any relief is granted to the plaintiff against the defendants such relief would not prejudice the Gaon Sabha in this suit for injunction. Gaon Sabha is not a necessary party because there is no allegation that Gaon Sabha is interfering with the alleged possession of the plaintiff. Thus I am of the view that the trial Court was not correct in holding that Gaon Sabha would be prejudiced if it was not made party to the litigation. Further the question of ownership is not directly involved in the present suit. The plaintiff has claimed injunction against the defendants mainly on the ground that he is in possession of the Gher. Whether such an injunction would be granted or not is the subject matter of the trial. If the plaintiff has no right, if he is not held to be the owner, an injunction may or may not be granted restraining the defendants from interfering with his possession The judgment between the plaintiff and the defendants would not be binding upon the Gaon Sabha. It would not be a judgment in rem. In these circumstances I am of the opinion (hat Gaon Sabha is not a necessary party.

(6) The next question thereforee, is : whether Gaon Sabha is a proper party and its presence is necessary before she Court to enable it to give releif to the plaintiff against the defendants As already staled, the dispute between the plaintiff and the defendants is whether the Gher is in existence and whether the plaintiff is in possession and further whether there has been any interference by the defendants. These questions can be decided without the presence of Gaon Sabha. So I am of the view that Gaon Sabha is also not a proper party to the present litigation.

(7) The learned counsel for the Gaon Sabha and the defendants strenuously point out that the question of ownership is in dispute. I do not agree. It is not a title suit. The plaintiff is not claiming possession of property. He is claiming injunction to restrain the defendants from interterring with his possession. The learned counsel for the respondents next submit that the previous suit by the plaintiff against the Gaon Sabha was a collusive suit. Right or wrong a decree was passed on the statement of the Pradhan of the Gaon Sabha in the earlier suit, whether it is binding or not is not a matter fur decision before me. The decree unless set aside in due course of law would be binding. If Gaun Sabha has a grievance about the previous decree it may take steps available in law but it docs not mean that it can be imp leaded in the present suit to raise the question that the previous decree was collusive between Gaon Sabha through its Pradhan and the plaintiff. Various authorities have been cited by respondents but in each case it would depend upon facts of individual case, whether a person was a necessary or a proper party to the liligation. I do not thereforee, propose to discuss the following authorities referred by the counsel for the respondents: Secy. of State and another v. M.Murugsa Mudaliar and others : AIR1929Mad443 , P.R. Mallathambi Goundan v. Vijaya Raghavan and others. : AIR1973Mad25 , Mt. Bindru v. Sada Ram and others, A.I.R. 1960 Jam Kas 67 and Razia Begum v. Sahabzadi Aiwar Begum and others, : [1959]1SCR1111 .

(8) In Banarsi Dass Durga Prashad v Panna Lal Ram Rirhhpal Oswal and others, , it has been observed by R.S. Sarkaria, J. (as he then was) that) 'Under sub-para (2) of Order I Rule 10 of the Code of Civil Procedure .......... a person may be added as a party to a suit in two cases 388 only, i.e., when he ought to have been joined and is not 80 joined, i.e , when he is a necessary party, or, when without his presence the questions in the suit cannot be completely decided. In my opinion, there is no jurisdiction to add a party in any other case merely because that would save a third person the expense and botheration of a separate suit for seeking adjudication of a collateral matter, which was not directly and substantively in issue in the suit into which he seeks intrusion.' It has been further observed : '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 docs not wish to fight and against whom he does not claim any relief. If opposition by the plaintiff to the addition of parlies is to be disregarded as a rule, it would be putting a premium on the undesirable practice of third parties intruding to ventilate their own grievances, into a litigation commenced by one at his own expense against another. The word 'may' in sub-rule (2) imports a discretion. In exercising that discretion, the Courts will invariably take into account the wishes of the plaintiff before adding a third person as a defendant to his suit. Only in exceptional cases, where the Court finds that the addition of the new defendant is absolutely necessary to enable it to adjudicate effectively and completely the matter in controversy between the parties will it add a person as a defendant without the consent of the plaintiff.' In Motiram Roshanlal Coal Co. (P) Ltd v. District Committee, Dhantad and others, : AIR1962Pat357 , it has been observed that the expression 'all the questions involved in the suit,' can only be questions as between the parties to the litigation. In Narayan Chandra Geral and others v. Matri BhandarPvt and another, : AIR1974Cal358 , it has been held that apparently a person is not to be added as a defendant merely because he or she would be incidentally affected by the judgment and the main consideration should be whether or not the presence of such person is necessary to enable the Court to effectually and completely adjudicate upon and settle the questions involved in the suit and if the question at issue between the parties can be worked out without anyone else being brought in, the stranger should not be added as a party.

(9) I am thereforee, of the opinion that the trial court has exercised the jurisdiction in impleading the Gaon Sabha which was not vested in it. The Gaon Sabha is neither a necessary nor a proper party for adjudication of the disputes involved between the plaintiff and the defendants in this suit for injunction. I, thereforee, accept the revision petition and set aside the im pugned order with costs.