Patna High Court
Lachhmi Narain And Ors. vs Ganga Mahton And Anr. on 18 April, 1963
Equivalent citations: AIR1964PAT44, AIR 1964 PATNA 44
ORDER U.N. Sinha, J.
1. This application has been filed by the plaintiffs of Title Suit No. 154 of 1961. It is directed against order No. 26, dated the 6th of November, 1962, by which the learned Munsif has ordered that one Gondu Manto be impleaded as a party to the suit.
2. The short facts are as follows : The plaintiffs have instituted the suit on the allegations that on the 11th of July, 1956, Babulal, Lal Mani Devi and Rukhmani Devi had given a usufructuary mortgage to Gangu Mahto, of the properties which are the subject-matter of this suit. Thereafter the plaintiffs purchased the equity of redemption from the three mortgagors by two transactions of the year 1960. Then the plaintiffs had tendered the mortgage money which was not accepted by the mortgagee and hence the money deposited and the present suit instituted for redemption. Gangu Mahto was made the sole defendant in the suit. Then one Gondu Mahto filed an application on the 14th of July, 1962, praying that he may be added as an intervenor defendant in the action. It was alleged by Gondu Mahto "that" Gangu Mahto was never in possession of the properties included in the mortgage deed, which were always in possession of Gondu Mahto. It was stated that the sale deeds on which the plaintiffs have relied are not genuine transactions. It was alleged that Gondu Mahto was in possession of the disputed properties by virtue of a private partition which had taken place long ago.
3. It appears that the case came up before the learned trial Judge on the 6th of November, 1961, and an adjournment was prayed for on behalf of the plaintiffs. The learned Munsif adjourned the case to the 30th of November and heard the parties on the petition filed by Gondu Manto. It was held that Gondu Mahto should be impleaded as a party, so that the case may be decided in his presence. The plaintiffs have come up to this Court complaining against the order of the learned Munsif impleading Gondu Mahto as a party to the action.
4. Having heard learned Counsel for the parties, I am of the opinion that Gondu Mahto has been improperly added in the suit as a party. It is quite clear from the allegations made by Gondu Mahto, that his interest was adverse to the mortgagee, and, therefore, he should not have been made a party in a suit for redemption. Purporting to act under Order 1 rule 10 of the Code of Civil Procedure, the learned Munsif has passed the order complained of, and it is clear that the learned Munsif has not directed his attention to the requirements of that rule. No reasons have been given at all as to why it had become necessary to implead Gondu Mahto, against the objections made by the plaintiffs. The plaintiffs' suit is one of redemption against the defendant, who is said to be the mortgagee under a usufructuary mortgage dated the 11th of July, 1956. The plaintiffs alleged that they have stepped into the shoes of the mortgagors. Such a suit, in my opinion, cannot be converted into a suit for investigation of title as between the original defendant and the proposed intervenor defendant, and addition of Gondu Mahto will alter the scope of the suit from a redemption suit into a suit based on title. Therefore, the learned Munsif ought not to have ordered that Gondu Mahto should be impleaded in this action.
5. Learned Counsel for Gondu Manto has submitted that there had been a proceeding under Section 144 of the Code of Criminal Procedure, to which Gondu Mahto was a party and he has also submitted that on the allegations made in the written statement filed by Gangu Mahto it is clear that the latter was not in possession of the properties involved in the suit and, therefore, it is a fit case where Gondu Mahto may be added as a defendant, as he claims to be the owner in possession of the disputed properties. These contentions in a suit for redemption are not valid. As stated earlier, if the contentions raised by Gondu Mahto at this stage are accepted and he is impleaded as a party, he will force the plaintiffs to alter the nature of the redemption suit beyond all recognition. It is clear, therefore, that the order of the learned Munsif dated the 6th of November, 1962, so far as it ordered that Gondu Mahto may be Impleaded as a party must be set aside.
6. The application is, therefore, allowed but, in the circumstances, there will be no order for costs.