Patna High Court
Ram Gopal Sah vs Dhirendra Nath And Anr. on 2 December, 1980
Equivalent citations: AIR1981PAT298, 1981(29)BLJR475, AIR 1981 PATNA 298, (1981) PAT LJR 386 1981 BLJR 475, 1981 BLJR 475
ORDER Shivanugrah Narain, J.
1. One Shiva Narayan Sah alias Shivanandan Sah instituted Title Suit No. 47 of 1978, in the Court of Subordinate Judge, Dumka, for eviction from a house of Dhirendranath Dey, who was impleaded as the sole defendant in that suit. It appears that on 18-3-1979 the plaintiff Shivnandan Sah died, and, thereafter, Ramgopal Sah, who is the petitioner in this Court filed an application for being substituted in place of the original plaintiff alleging that he was his son and sole heir and the petitioner was substituted as plaintiff in place of original plaintiff Shivanandan Sah. Thereafter, on 5-7-1979 Mst. Bimli Devi, who is opposite party No. 2 to the application in this Court, filed a petition under Order 22 Rule 2 of the Code of Civil Procedure praying for being substituted in place of original plaintiff on the allegation that she was the widow and sole surviving heir of the original plaintiff. Subsequently, she filed a petition under Section 5 of the Limitation Act for condoning the delay in filing the application and she prayed that she should be substituted in place of the original plaintiff after setting aside the abatement. The substituted plaintiff filed a rejoinder to that application denying that Mst. Bimli Devi, opposite party No. 2 to the application in this Court, was the widow of the original plaintiff and as such she was the sole heir and legal representative of the original plaintiff. By his order dated 1-9-1979, the learned Subordinate Judge in seisin of the case dismissed the application for substitution on the ground that no sufficient cause had been made out for setting aside the abatement or for condoning the delay in filing the application; and that, therefore, the application for substitution was barred by limitation. No finding was given by the learned Subordinate Judge on the question whether or not opposite party No. 2 was the widow of the original plaintiff.
2. Subsequently on 4-9-1979, opposite party No. 2 filed an application under Order 1 Rule 10 of the Code of Civil Procedure praying for being added as a co-plaintiff on the ground that she was the widow of the original plaintiff. This application was opposed but by his order dated 26-9-1979, the learned Subordinate Judge held that as the application for substitution was dismissed not on merits but on the ground of limitation the application by Most. Bimli Devi could be entertained and holding that there were sufficient materials on record to show that Most. Bimli Devi was the widow of deceased Sheonarayan Sha directed that Bimli Devi be added as plaintiff No. 2. The person originally substituted in place of original plaintiff has come up to this Court in revision against the aforesaid order.
3. Shri S.B. Sanyal, the learned Advocate appearing for the petitioner at first raised a number of contentions but ultimately he abandoned all contentions except one, namely, that the court below acted illegally and with material irregularity in adding Most. Bimli Devi as co-plaintiff when her right to the property, which was the subject -matter of suit, was seriously contested by the plaintiff. In my opinion, this contention is correct and must prevail. A Similar question came up before the Bombay High Court in the case of Baya-jabai Ganpat v. Keval Rambhau (AIR 1953 Bom. 202) and Chagla, C. J. delivering the judgment of the Bombay High Court held that a party is added as a co-plaintiff when the plaintiff does not dispute the right of the co-plaintiff to the decree which might be passed; and that wheel there is a direct conflict between the plaintiff and the person who claimed to be added as a plaintiff, if the application for being added as party be allowed he should be added as a co-defendant not as a co-plaintiff. Chagla, C. J., accordingly, in revision, set aside the order of the court below adding the person whose right to the property in suit was contested by the plaintiff as a co-plaintiff, giving liberty to that person, if so advised, to apply to the court below to be made a party-defendant to the suit.
4. The abovesaid view of the Chagla, C. J., is fully supported by the decision of the Calcutta High Court in the case of Googlee Sahoo v. Premlall Sahoo, (1881) ILR 7 Cal 148 on which his Lordship relied. Though Shri A. Mishra, the learned Advocate appearing for opposite party No. 2, contested the correctness of the view that no person should be added as a co-plaintiff when the plaintiff disputes the right of the person praying to be added as a co-plaintiff and there is a direct conflict between the plaintiff and the person to seek to be added as a co-plaintiff, he was unable to cite any authority in support of his contention. It is true that order I Rule 10 of the Code of Civil Procedure itself places on such specific limitation on the power of the Court to add a person as a co-plaintiff, but, in my opinion, it is a sound exercise of discretion not to add a person between whom and the existing plaintiff there is a direct conflict as a co-plaintiff because if he is joined as a defendant issue can be raised between the plaintiff and party newly joined. In agreement with Chagla C. J., I, therefore, hold that the court below acted illegally or with material irregularity in exercise of its jurisdiction when it ordered opposite party No. 2 to be added as a co-plaintiff when the plaintiff disputed her right to the decree which might be passed or to he property which is the subject-matter of the suit. The order under revision, therefore, must be set aside.
5. Shri Mishra. appearing for opposite party No. 2, contends that if the order is set aside the order should not be completely set aside but only modified into an order adding opposite party No. 2 as a co-defendant. It is seriously objected to by the learned Advocate appearing for the opposite party No. 1, the original defendant. He contends that the opposite party No. 2 should not be added as a party to the suit at all as her application for being added as a party was a device to circumvent the earlier order dismissing her application for substitution. In my opinion, it is not necessary to pronounce upon this question at present because no application to add her as a defendant has been filed by opposite party No. 2. The question should properly be decided as and when such an application is filed by opposite party No. 2.
6. I would, accordingly, allow the application and set aside the order directing that opposite party No. 2 be added as plaintiff No. 2. It will be open to opposite party No. 2, if so advised to apply to the court below to be made a party-defendant to the suit. If such a claim is made, the court below should dispose of that application according to law after considering any objections raised to that application by the defendant or the plaintiff. In the circumstances of this case, however, I make no order as to costs.