Patna High Court
Kali Rai vs Tulsi Rai And Ors. on 8 April, 1925
Equivalent citations: 93IND. CAS.932, AIR 1926 PATNA 207
JUDGMENT B.K. Mullick, J.
1. This application must be rejected.
2. In a mortgage suit brought by the petitioner's uncle Tulsi Rai against certain persons styled the Ojhas upon a bond executed in 1916 and standing in the name of the petitioner's uncle Tulsi Rai, the Ojhas objected that the petitioner Kali Rai was a necessary party inasmuch as his father Raghu Nath had had a share in the money which was originally lent to the defendants. It was also alleged by the defendants that the bond of 1916 was merely a renewal of an old bond of 1904. After the defendants took this objection as to non-joinder, the petitioner came forward with a petition praying to be joined as plaintiff in the suit. That petition has been disallowed by the Subordinate Judge and hence this application in revision to us.
3. It is quite clear that the addition of the petitioner as a plaintiff will cause great inconvenience in the trial of the, mortgage suit. It would be altogether out of the scope of that suit to introduce into it a conflict between the plaintiffs and a person who claims adversely to them. The question whether there had been in fact a partition in 1901 between Tulsi Rai and Raghu Nath is one which will require much evidence unnecessary for the mortgage suit, and I agree with the learned Subordinate Judge that to join the petitioner as a plaintiff would be improper and inconvenient.
4. The petitioner, however, now says that he is quite willing to be joined as a defendant. That again is a position which he cannot be allowed to take up. It is quite conceivable that the petitioner's appearing in the role of a defendant will raise obstacles in the way of the plaintiffs which were altogether unforeseen and the balance of convenience decidedly requires that the petitioner should be left to bring a separate suit against the plaintiffs if he has any share in the bond upon which the suit has been brought.
5. It is contended that the non-joinder of the petitioner may possibly entail the dismissal of the suit. It has, however, been held in this Court that unless there are very strong reasons for doing so, a mortgage suit will not be dismissed on the ground that the other members of the joint family have not been joined as plaintiffs. In any event if the suit is dismissed the petitioner will not be affected and the only objection the petitioner can raise is that there may possibly be a multiplicity of suits. In the circumstances of this case such a result cannot be avoided if the plaintiff desires to assert his claim to. the mortgage money.
6. With regard to a question whether Section 115 of the C. P.C. applies and whether we have jurisdiction to interfere, to seems that there has in this ease been no refusal on the part of the Subordinate Judge to exercise jurisdiction. He may have exercised it wrongly, but it cannot be said that there has been any failure; on his part to exercise jurisdiction. In Rabbaba Khanum v. Noorjehan Begum 13 C. 90 : 6 Ind. Dec. (N.S.) 558. the same point came up before the Calcutta High Court and it was held that a refusal to add a party as a defendant could not be revised under Section 622 of the C. P.C. which corresponds to the present Section 115. On the other hand, there are other eases of the Calcutta High Court where the Court has revised the decision of a lower Court in the matter of joinder of parties see for instance, Jugal Krishna Mullick v. Phul Kumari Dassi 41 Ind. Cas. 504. and Dwarka Nath Sen v. Kimri Lal Gosain 6 Ind. Cas. 549 : 11 C.L.J. 436 : 14 C.W.N. 706. These eases, however, were decided on their own facts and it is not clear whether the Court was acting under Section 115 or its general powers of superintendence. In my opinion Section 115 is clearly not applicable. Possibly Section 107 of the Government of India Act might apply fro cases where the result is a denial of the right of fair trial. In the present ease there has been no such, denial, and, therefore, we can not interfere in exercise of our powers of superintendence.
7. In my opinion the merits are altogether against the petitioner and, therefore, the application must be dismissed with costs: hearing-fee one gold mohur.
Ross, J.
8. I agree.