Jammu & Kashmir High Court
Gh. Mohammad Mir vs Mohammad Yaqoob Mir And Ors. on 6 November, 2006
Equivalent citations: 2007(2)JKJ63
Author: J.P. Singh
Bench: J.P. Singh
JUDGMENT J.P. Singh, J.
1. Gh. Mohammad Mir, petitioner, filed a suit seeking a decree on the basis of right of prior purchase and for possession of a three storied house along with land measuring five marlas comprised in Khasra No. 1717/1167 situated at Tanga Bagh, Srinagar. This right of prior purchase was projected on various grounds.
2. During the currency of this suit, one Fatima Ishtiyaq filed an application seeking her impleadment as party-plaintiff to the suit. The impleadment had been sought on the plea that the property in question in the suit had been gifted by defendant No. 1 to the applicant and possession of the property too had been delivered by the defendant to the applicant.
3. Whereas defendants No. 1 and 2 did not object to the impleadment of the applicant as party-plaintiff, the plaintiff objected to her impleadment on various grounds.
4. Learned City Munsiff Srinagar, vide her order dated 26th of May 2006, has allowed the application of Fatima Ishtiyaq by arraying her as co-plaintiff in the suit.
5. Aggrieved by the order of learned city Munsiff Srinagar, plaintiff has, approached this court seeking revision of order dated 26th of May 2006.
6. Learned Counsel for petitioner/ plaintiff has reiterated the pleas taken by him in his objections to the application of Fatima Ishtiyaq whereas learned Counsel appearing for Fatima Ishtiyaq has reiterated the pleas raised in her application seeking impleadment as party-plaintiff.
7. I have considered the submissions, and have gone through the application of Fatima Ishtiyaq and the suit filed by Gh. Mohammad Mir. Learned City Munsiff has, while allowing the application of Fatima Ishtiyaq, held as follows:
The applicant has raised such an issue which requires determination and adjudication. Therefore in order to avoid the multiplicity of litigation, it will be proper if the applicant be allowed to be impleaded as party in the suit. It will also help the court in resolving the entire controversies of the parties.
In view of the discussion made above, application filed by the applicant is allowed and is arrayed as plaintiff in the suit. The concerned clerk shall make-necessary correction in the suit and in the index also. Let file come up on 17-07-2006.
8. Impleadment of parties to a pending lis is governed by Order 1 Rule 10 of the Code of Civil Procedure 1977 and principles underlying therein. It would thus be advantageous to refer to the provisions of Order 1 Rule 10 of the Code of Civil Procedure before deciding as to whether or not the impleadment of Fatima Ishtiyaq was sustainable.
9. Order 1 Rule 10 of the Code of Civil Procedure reads thus:
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 through 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.
10. Perusal of the above extracted provisions of Order 1 Rule 10 would demonstrate that the impleadment of only such person(s) would be permissible 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.
11. The first and foremost thing which a court seized of the question as to whether impleadment should or should not be allowed, is required to do is to know about the issues which were required to be settled in the case, After finding out the issues raised in the suit, it is then required to decide as to whether or not presence of any such person(s) who seek their impleadment was necessary or required so as to effectually and completely adjudicate upon and settle the issues raised in the suit.
12. Learned City Munsiff Srinagar, it appears, was not alive to the provisions of Order 1 Rule 10 of the Code of Civil Procedure and it was because of this reason it landed itself in a mistake in allowing the impleadment of Fatima Ishtiyaq as party-plaintiff only on the plea that the issue raised by Fatima Ishtiyaq required, determination and adjudication without finding out as to whether or not such determination and adjudication of the issues raised by Fatima Ishtiyaq was necessary to settle and decide the questions which would fall for determination in the suit of Gh. Mohammad Mir.
13. In a suit based on the right of prior purchase, the Court is required to decide as to whether or not the plaintiff had any right of prior purchase under the provisions of the Right of Prior Purchase Act. Fatima Ishtiyaq had not raised any such question in her application and rightly so because the question raised by her in the application as to her entitlement to the property in question on the basis of oral gift in her favour by defendant No. 1 was not required to be decided in order to arrive at the rights of the parties to the suit in regard to plaintiffs, entitlement or otherwise to the right of prior purchase of the suit property. Pleas projected by the applicant in her application were neither material nor necessary for adjudicating upon the rights of the plaintiff and the defendants in the suit property as clamed by them in their respective pleadings. Plaintiff being dominus litis could not in these circumstances be compelled to have applicant Fatima Ishtiyaq as co-plaintiff.
14. Learned City Munsiff Srinagar, has thus committed an error of law in allowing Fatima Ishtiyaq's application and impleading her as party-plaintiff in the suit. Order impugned in the revision petition is unsustainable. It is accordingly set-aside and application of Fatima Ishtiyaq seeking her impleadment as party-plaintiff in the suit dismissed.
15. Dismissal of the application of Fatima Ishtiyaq will not however, come in her way in filing an appropriate suit, if so advised, for projecting her rights in the property.