Gujarat High Court
Alarakha Hassan And Ors. vs Amir Hussain Aladmiya And Ors. on 30 March, 1967
Equivalent citations: AIR1968GUJ265, (1968)0GLR1050, AIR 1968 GUJARAT 265
JUDGMENT
(1) In a representative suit filed under Order 1, Rule 8 of the Civil Procedure Code in 1961, two persons, namely, Kasambhai and hyderkhan gave an application, Ex. 127, under sub-rule (2) of Order 1, Rule 8, C. P. Code, stating that they want to be added as parties. At that time they were not added as plaintiffs. Subsequently, these two persons and two other persons, who made application (Ex. 131) were ordered to be substituted as plaintiffs in place of the original plaintiffs. That order is now challenged in revision.
(2) Sub-rule (2) of Order 1, Rule 8, C. P. Code provides thus:--
"(2) Any person on whose behalf or for whose benefit a suit is instituted or defended under sub-rule (1) may apply to the Court to be made a party to such suit."
Therefore, the two persons, who gave the application (Ex. 127) had a right to be made parties to the suit. They should be added but not substituted for others.
(3) Sub-rule (2) of Order 1, Rule 10, C. P. Code reads as under :--
"10(2) The Court may at any stage of the proceedings, either upon or without the application of either party, and no 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."
This is not a case of the original plaintiff being improperly joined. This is also not a case where the applicants of the application, Ex. 131, have sought to be made parties, whose presence before the Court is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. The suit is a representative one, and the necessary notice had been given under Order 1, Rule 8, C. P. Code. Subsequently, at a very late stage, two other persons cannot make an application and contend that their presence is necessary before the Court in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. Therefore, the lower Court was right in allowing the applicants of Ex. 127 to be added as parties. Bu the lower Court was wrong in ordering the applicants of the application, Ex. 131, to be added as parties. The lower Court was also wrong in ordering that these persons be substituted as plaintiffs Nos. 1 to 4 in place of the original plaintiffs, who have a right to continue as plaintiffs.
(4) Therefore, the order passed by the lower Court is set aside and the following order is passed:
"In addition to the original plaintiffs, the applicants of the application, Ex. 127, should be added as plaintiffs."
(5) The advocates of both the sides state that the compromise should be set aside. But the compromise is an act of the parties and not an act of the Court. It cannot, therefore, be set aside. But as two of the plaintiffs, namely, the applicants of the application, Ex. 127, are not parties to the compromise, it will have no value. If the compromise has been recorded by the Court as a compromise of the parties to the suit, the act of recording will be set aside. The Court will have to ignore the compromise as two of the plaintiffs are not the parties to the compromise.
(6) Order accordingly.