Punjab-Haryana High Court
Hazura Singh vs Sukhdev Singh And Anr. on 9 October, 1995
Equivalent citations: (1996)112PLR480
JUDGMENT M.S. Liberhan, J.
1. This order of mine shall dispose of Civil Revision Nos. 3051 and 3116 of 1993.
2. Plaintiff-Sukhdev Singh filed a suit for declaration to the effect that he is owner in possession of the suit land. Hazura Singh and Parmatma Singh (since deceased and now being represented through his legal representatives) filed applications under Order 1, Rule 10, C.P.C. for being impleaded as defendants in the suit. It was averred that Hazura Singh is in fact real brother of Partap Singh-defendant in the suit and the suit property is joint Hindu Family Property, apart from its being ancestral one. The applicant has a share in the suit property. It is being cultivated jointly by defendant and the applicant. The suit has been filed in order to enable the plaintiff to play fraud and to defeat the rights of the applicant. In fact no family settlement has ever taken place, rather the plaintiff is trying to take ad vantage of unsoundness and incapabilities of the defendant.
3. The trial court returned a finding, although applicant and the defendant are joint owners yet they are having different and specific possession of the land. The common question to be decided with respect to family settlement and the applicant's claim having a share in the joint property are not going to be affected. Avoidance of multiplicity of litigation is no ground for impleading the applicant as party-defendant to the suit.
4. The learned trial Court has returned no finding with respect to the fact whether the applicant is a necessary or proper party which is the very basis for the applicant being impleaded as party.
5. The quint-essence for being made a party in a suit is, either the party should be necessary or a proper party, in order to determine the subject matter of the suit effectively.
6. There is no gain-saying that necessary party as observed by the catena of authorities is the one in whose absence suit cannot be decided either finally or effectively or no relief can be granted to the plaintiff.
7. The proper party is one whose presence is considered to be proper in order to provide effective relief to the plaintiff and for avoiding multiplicity of litigation i.e. for shortening the litigation. In other words proper party is one whose presence is considered appropriate for effective decision of the case, though no relief may have been claimed against him.
8. There is no dispute with the proposition of law that the plaintiff is dominuslitus. No person can be impleaded unless he is a necessary or a proper party to the Us, to get his rights determined in the suit of another party.
9. In the instant case, the plaintiff has sought declaration based on his title determined in a suit brought by the plaintiff-respondent. Merely to avoid multiplicity of the litigation by itself is no ground to implead the applicant as defendant, as it is obvious that the complex of the litigation/entire cause of action would change. The plaintiff has sought no relief against the applicant. The applicant cannot be termed as a necessary party. Nothing has been pointed out, that presence of the applicant is necessary or in the absence of whom no effective relief can be granted to the plaintiff.
10. In my considered view the impleading of a party as envisaged by Order 1, Rule 10(2) C.P.C. is not merely a procedural right. It confers a right on the defendant of appeal etc. Thus it confers substantial right on the parties to the lis, which is anti-thesis to the well accepted principle that the plaintiff is dominus litus. There is a catena of judgments that unless Court comes to a conclusion that person is either necessary or proper party he cannot be permitted to be impleaded as party. There is no such finding returned in the present case.
11. Applicant's claiming interest in the property in a suit filed by a third per son by itself is no ground to implead him as a party in the suit. One cannot get his rights determined qua the plaintiffs or inter se the defendants in a suit brought by a person against his wishes.
12. The above observation of mine finds support from a judgment in Karnail Singh v. Sher Singh and Ors., (1996-1)112 P.L.R. 472 wherein this Court ob served that in a suit for title/declaration by plaintiff with respect to his possession and title a person claiming properly as joint Hindu Family property and claiming share in the same is not just and proper party, cannot be impleaded against the wishes of the plaintiff.
13. So far as the judgment Ved Kumar v. Smt. Raj Raji Bhatti, (1993-1)103 P.L.R. 531 is not pari-materia to the facts and circumstances of this case. Relief of possession was claimed on the basis of family settlement. It is in the peculiar facts and circumstances of that case, this Court observed that interest of justice is the basic purpose under-lying procedural law and allow the parties to be impleaded as necessary party bereft of technicalities. It is not the case herein. Under the garb of the epithet of justice one cannot get Ms rights determined in a suit brought by a third person. No question of any technicality is involved herein. It is simplicitor suit for declaration based on the title of the plaintiff. Applicant is seeking determination of his right and interest in the property in suit claiming title in himself, being a member and shareholder in joint Hindu Family Property. Property being ancestral which is an independent cause of action available to the applicant and needs determination of entirely different facts than the one required to be determined in the suit in hand in order to give relief to the plaintiff.
14. Nothing worth noticing has been pointed out to hold even remotely that. applicant is at least the proper party in the totality of facts and circumstances of the lis in hand.
15. For the reasons recorded above, I find no force in the revision and the same is dismissed with no order as to costs. The parties are directed to appear before the Court below on 30.10.1995.