Karnataka High Court
Smt. Aswathamma vs H.M. Vijayaraghava on 3 June, 1998
Equivalent citations: AIR1999KANT21, 1998(5)KARLJ320, AIR 1999 KARNATAKA 21, (1998) 5 KANT LJ 320
ORDER
1. This revision is under Section 115 of the Code of Civil Procedure, from the order dated 14-12-1993, passed by Munsiff, T. Narasipura on I.A. No. 4 moved in FDP 18 of 1990, in Original Suit No. 22 of 1977, allowing the impleadment of the respondent as defendant 4.
2. The facts of the case in nutshell are that the suit for partition had been filed by the plaintiff Smt. Aswathamma, impleading Kotamma, Sampathamma and Vijayalakshmi as defendants, claiming 1/4th share each against defendants 1 to 3 in the suit. It may be mentioned as observed by the Trial Court, second defendant in her written statement had taken the plea that the deceased first defendant had taken her son in adoption and during the trial and registered will was executed in favour of the present applicant whereby deceased defendant 1 had bequeathed the suit property in favour of the son of defendant 2, that is the present appellant, but the plaintiff did not implead the applicant in the suit. Inspite of issue 2 raised in the suit that the property belonged to the applicant-H.N. Vijaya Raghava, present applicant was not impleaded and in those proceedings preliminary decree was got passed for partition without the present applicant being impleaded as a party, whereunder the share of the plaintiff was decreed 1/4th share against defendants 1, 2 and 3. It appears that at one stage the applicant had moved an application for stay of the proceedings in the suit under Section 151 of the CPC and when the proceedings were at the final decree stage, the Civil Judge rejected the prayer and the applicant had filed the revision petition in CRP No. 1315 of 1993, which has been dismissed by order dated 7-9-1993, with the observation as under.-
"In that suit he filed an application for stay of further proceedings in the FDP. That FDP, arose out of a partition decree made in respect of properties in question. Whatever rights these parties have in respect of the properties in question, will have to be worked in FDP. If the petitioner has any right in respect of the properties, he can certainly work out the same against the parties concerned to whose share the properties fall".
3. It is thereafter the present applicant moved under Order 1, Rule 10(2) of the CPC for being impleaded as a party or as one of the defendants to protect and to work out his right in respect of the properties. It was stated that the partition was effected on 15-3-1976 between the first defendant Kotamma and her brother-in-law R. Rangappa and the suit properties were allotted to the share of first defendant and as first defendant had no male issue, so he has taken applicant in adoption on 7-6-1976 and on the same day he executed a registered will in favour of the applicant pertaining to the suit properties and the applicant claim to be in enjoyment of the property after the death of first defendant. He stated that at that time he was minor, but now after having attained majority he is in personal cultivation and that the decree passed without impleading him is not binding and as such he has got right to putforth in the proceedings with respect to the suit properties and that he was necessary party to be impleaded therein to avoid multiplicity of suits.
4. No doubt objections were filed by the opposite parties, denying the allegations that the applicant was the adopted or that the will was executed in his favour etc., but those questions have to be decided later on. It had to be looked into whether in view of such allegations, in order, to the point in issue being decided finally, impleadment of present respondent that is the applicant who moved the impleadment was necessary or proper party or not. The Trial Court opined that the applicant who was not a party in the earlier proceedings, since he has set out his right independently both on the basis of adoption and the will of the year 1976, he is a necessary and also a proper party to adjudicate upon and settle the points involved in the suit effectually and completely as well as to avoid multiplicity of proceedings. The Court said the will prima facie may show the applicant was an interested party having a right to claim if the will is proved. Looking to this situation, and these facts and considering the applicant to be necessary party for the purpose of the suit being finally determined as to interest of every party interested in the property in dispute and the prima facie claim of interest and position of the defendant-applicant, the Trial Court allowed impleadment of the applicant.
5. The present revisionist, namely the plaintiff in the suit, feeling aggrieved from the order of Court below allowing the impleadment has come up in revision under Section 115 of the Code of Civil Procedure.
6. I have heard Sri R. Gopal, learned Counsel for the petitioner and Sri C.M. Basavarya for the respondents.
7. Learned Counsel for the applicant vehemently submitted that in the partition suit, a preliminary decree having been already passed and impleadment ought not to have been allowed and could not have been allowed. He submitted that allowing the impleadment of the applicant or the present respondent as a party-defendant would reopen the whole decision and decree for reconsideration. Therefore, it is likely to prejudice the parties, so the Court below acted illegally in allowing the amendment/impleadment application. He submitted that preliminary decree has become final, after the appeals has been dismissed.
8. On behalf of the respondents the revisionist-plaintiff's Counsel's contention on merits no doubt has been hotly challenged. In addition thereto, the learned Counsel for the applicant submitted that the order is not revisable as it does not suffer from jurisdietional error as well as the order cannot be said to amount to be a case decided nor can it be said to have a tendency to cause irreparable injury to the plaintiff. He submitted when defendant had taken that plea and proved that defendant 1 had adopted him as her son and executed the will in favour of the present applicant, it was the duty of the plaintiff to have impleaded him before the question of partition could finally be decided. So the essential question to be decided, in order to finally determine all the questions involved in the suit by or before the passing of final decree if the proposed defendant, i.e., applicant in amendment application, was necessary or proper party to be impleaded and heard. Learned Counsel submitted that for complete decision of the matter and determination of points in dispute relating to partition the applicant was necessary party, as the applicant claimed himself to be the adopted son of defendant 1, Kotamma and he based his claim and right on the will alleged to have been executed by defendant 1 in his favour and if the will is proved, then the plaintiff and other defendants may not be entitled to the shares and so far as properties or interest in property of Kotamma is concerned. Plaintiff not having impleaded the applicant purposefully to avoid decision on questions on merits. So to avoid multiplicity of proceedings and multiplicity of suits, impleadment was necessary and the Court below has rightly ordered impleadment. Learned Counsel contended that the impleadment by itself cannot be said to be a case decided and when order does not amount to a case decided, the revision is not maintainable. He further made a reference to the decision of the Supreme Court in the case of Razia Begum v Sahebzadi Anwar Begum, to contend that the question of addition of parties is not one of initial jurisdiction of the Court, but it is a matter of judicial discretion which has to be exercised keeping in view all the facts and circumstances of a particular case. He submitted that the Supreme Court has taken the view that ordinarily such an order may not involve the question of jurisdiction and the revision is not maintainable.
9. I have applied my mind to the contentions raised by learned Counsel for the parties.
10. The first essential condition to be established is whether the order allowing impleadment of a party under Order 1, Rule 10 of the CPC can be said to amount to case decided. The expression "case decided" is an important factor, which is one of the essential conditions to be established before the jurisdiction of this Court can be agitated or called for being exercised, under Section 115 of the Code. Explanation to Section 115 of the Code of Civil Procedure defines the meaning of case decided. Explanation to Section 115 of the CPC reads.-
"In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding".
11. This Court in the case of Mohammed Ali v D. Dawood Basha, had laid it down as under.-
"..... The 'order' in explanation is not used in the general or ordinary sense of the term. The expression 'order' has been defined in the Code vide sub-section (14) of Section 2 of the CPC. Under sub-section (14) of Section 2 of the CPC, the 'order' means the formal expression of any decision, of a Civil Court which is not a decree. This definition of expression 'order' has to be taken into view when it is required to be considered whether a particular order amounts to case decided. Because it is well-settled principle of rule of interpretation that if words or the expression used in the Act, are defined by the Act as per definition clause thereof then for the interpretation of the words and expression used and defined in the Act we must look into the definitions given therein. We are not concerned with any presumed legislative intents. The exception to this general rule are cases where context or subject otherwise requires. Therefore, the expression 'order' used in the Explanation to Section 115 of the Code and must mean the formal expression of any decision of a Civil Court which is not a decree. Thus considered an order amounting a decision of some right or dispute as to right even if interlocutory in nature may amount to be a case decided. The decision means and postulates that there must be a dispute with regard to certain rights may be, a dispute inter se the parties in the suit or may be dispute which relates to some right relating to procedural matters. Unless there is some decision of certain disputed rights either under substantive law or procedural law the order cannot be termed to be an order amounting to case decided in the sense as it is used in the Explanation".
12. The order in Explanation is not used in general or ordinary sense of the term. The applicant moved the application that he may be allowed to agitate his rights to the property and his right may not be determined without his impleadment before passing of the final decree. Order 1, Rule 10 of the CPC confers a discretion on the Court to pass order on such a request. Order 1, Rule 10 of the CPC provides that where the Court at any stage of the proceedings, either upon or without the application of either party, is satisfied and comes to the conclusion that any person ought to have been joined as the plaintiff or defendant, or whose presence before the Court, according to it is necessary to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit, it may order such party to be added. If the person moving application for impleadment alleges that he is a necessary party and ought to have been impleaded for determination of all questions involved in the suit and Court is satisfied that he ought to have been impleaded and he has not been impleaded, the Court may order his impleadment. This power or discretion to direct impleadment may be ordered either suo motu or on application being made at any stage of the proceedings. At any stage of the proceedings indicates that if no final decree has been passed and proceedings are yet in the suit going on and the proceedings in the suit have not come to a closure, then at any stage of the suit, it may so order. Even an appeal is also a stage of the suit and such request may be considered at the appellate stage. The Court in this case, in view of the observations of the High Court in CRP No. 1315 of 1993, as well as keeping in view that applicant's claim that he was adopted son of defendant 1 in the suit and that the will had been executed in his favour with reference to rights in proper in suit by 1st defendant in the suit, considered that for the final determination of all issues including the one arising out subsequent even in the suit for partition, impleadment of respondent (applicant) was necessary atleast as a proper party.
13. To finally adjudicate the rights of parties, it was necessary that applicant should have been impleaded. When he was not impleaded and inspite of plea being raised by other defendants, it is within the jurisdiction of this Court to order his impleadment. The question whether he was a necessary and proper party, the question had to be determined by the Court and it is, was and has been within the jurisdiction of the Court to determine, and whether it was a proper stage when impleadment should have been allowed, has again been a question for decision by within the jurisdiction of the Court. Rules of procedure have to be interpreted, keeping in view the concept of justice as well as to see that multiplicity of proceedings is avoided. An order rejecting the application for impleadment may be said no doubt to be a case decided, as the refusal to allow impleadment denies the person seeking impleadment opportunity place his claim in property in dispute which asserts to have with parties to the case, and further it may result in multiplicity of legal proceedings and even conflicting decrees. No doubt in some cases, it has also been viewed that order allowing impleadment may not amount to a case decided.
14. In the case of Shri Nath Seth v Nand Lal , the Chief Court of Oudh has been pleased to observe:
"It has, however, been repeatedly held that an Order refusing to implead a person as a party under Order 1, Rule 10, CPC is a case decided and may properly be challenged by an application under Section 115, CPC".
15. That even otherwise if it may be taken that order allowing or refusing to implead a party may amount to a case decided. This is by itself not sufficient to exercise revisional jurisdiction. Under Section 115 of the CPC the applicant has to establish that the Court below has committed jurisdictional error. As regard the question of jurisdiction, firstly, the Court below had initial jurisdiction to entertain the suit and to deal with the matters. Order 1, Rule 10, CPC confers discretionary jurisdiction in the interest of justice and to avoid further multiplicity of proceedings as well as to see that all questions involved in the matter are finally adjudicated upon. It has been conferred a discretionary jurisdiction. The Court below has been entitled to consider the question whether the applicant was a necessary or a proper party to be impleaded in the suit and his impleadment was necessary for final adjudication, in view of the claim made by him, on the basis of adoption and the will alleged to have been executed by original defendant 1 in the suit.
16. No doubt these questions have to be decided on merits as to what will be the effect of decision in favour of the applicant in the suit. Decision of the question namely, whether the applicant-respondent was a necessary and proper party, it has been taken by the Court holding applicant to be necessary or at least proper party for effective final decision of the suit for partition. The decision, even if wrong or erroneous cannot be subject-matter of revision unless it touches the jurisdiction or amounts to jurisdictional error within Section 115(1)(a), (b) or (c) of the Code. Had the lower Court not considered this question it could be said that the Court had exercised the jurisdiction illegally, but the Court had applied its mind to the questions and also to the circumstances, including the fact that inspite of plea of defendant 2 to the effect that the plaintiff has not purposefully impleaded that person, in such circumstances, in my opinion, firstly there is no jurisdictional errors in the order ordering the impleadment.
17. Learned Counsel for the applicant contended that once the preliminary decree has been passed determining the shares of the parties, even if final decree proceedings were going on, but as preliminary decree has become final, so no impleadment ought to have been ordered and it is a jurisdictional error committed by the Court below, in allowing impleadment. The language of Order 1, Rule 10, CPC is very clear, it provides that any stage of the proceedings of the suit, the Court has been conferred power to order that the name of a party or the person who ought to have been made a party, has not been joined though ought to have been joined should be impleaded. The expression "at any stage of the proceedings" is by itself very clear. It means that any stage of proceedings till the passing of the final decree in the suit and if final decree has not been passed and final decree is yet awaited and has not even attained finality and even may be at the appellate stage, even then the Court concerned comes to the conclusion that a person who ought to have been joined and whose presence before the Court has been necessary to enable the Court to completely adjudicate and settle all questions, it can order impleadment. Learned Counsel for the applicant in this connection made a reference to the decision of the Orissa High Court in the case of Baman Chandra Acharya and Others v Balaram Acharya and Others. While on this point reference was made by learned Counsel for the respondent to the following decisions, challenging the contentions of the applicant's Counsel. The decisions referred by the Counsel for the respondent are as under:
1.Shagun Chand and Another v Data Ram and Others .
2.Dinanath Kumar v Nishi Kanta Kumar .
Learned Counsel for the respondent also made reference in this connection to the decision of the Division Bench of the High Court of Andhra Pradesh, in the ease of Ramader Appala Narasinga Rao v Chunduru Sarada.
No decision of their Lordships of the Supreme Court has been cited, except it has been contended on the basis of the case in Venkata Reddy and Others v Pethi Reddy, that a preliminary decree is also final and binding between the parties.
18. The expression "at any stage of the proceedings" means the stage till the proceedings in the suit are going on and suit has not come to a closure by passing of the final decree. In the suit for partition, no doubt sometimes one decree is passed and generally for determining share, a preliminary decree is passed and then final decree proceedings takes place. Merely because preliminary decree has been passed, it cannot be said that the proceedings in the suit have come to an end. The proceedings in the suit continue when the application for final decree is made and when subsequent and new developments takes place, then keeping in view the subsequent developments or subsequent events, it is also open to the Court to modify that decree under law, taking into consideration subsequent developments. That in order to finally adjudicate the matter, final decree is to be passed, taking note of subsequent events. So it cannot be said that stage in proceedings in the suit has come to an end, with the passing of preliminary decree. The final decree proceeding are the continuation of proceedings of the suit, the proceeding in the suit are yet going on and have not come to a closure and if necessary as such, Court has got inherent powers to modify the decree, taking note of the subsequent events. So it can be said that, stage of final decree proceedings, the proceedings in the suit had been going on and therefore stage of final decree proceedings being the continuation of proceedings in suit, the Court's jurisdiction did continue to consider the application for impleadment of necessary party who had not been impleaded for reasons best known by the plaintiff, inspite of defendant 2 raising such a plea and so the order impugned cannot be held to be without jurisdiction.
19. In the case of Shagun Chand's ease, supra, Hon'ble Mr. Ash-worth, J., one of the members of the Division Bench observes.-
"I am of the opinion that the proceedings for a final decree are merely a continuation of the suit as instituted for the purpose of a preliminary decree and that the provisions of Order 1, Rule 10(2) of the CPC governing the joinder of an additional party during the pendency of a suit will apply to this case".
Hon'ble Mr. Justice Sir Iqbal Ahmad, J., constituting the Bench along with Ashworth, J, has been pleased to observe at page 466 as under:
"That being so, I am not prepared to hold that under no circumstances has the Court jurisdiction, after the passing of the preliminary decree and before the final decree has been passed, to implead as defendants to the suit persons who were not originally impleaded as defendants and were not parties to the preliminary decree. But the question whether or not persons who were not originally made defendants should be made defendants in the suit is a question entirely within the discretion of the Court as is apparent by the provisions of Order 1, Rule 10(2) of the CPC".
20. The Division Bench clearly points out that after the preliminary decree has been passed and it is within the jurisdiction of the Court to order impleadment of a person who has not been impleaded and who ought to have been impleaded, in the course of proceedings for final decree.
21. The Division Bench of the Andhra Pradesh High Court in the case of Ramader Appala Narasinga Rao's case, supra, has also dealt with this question and relied upon the decision of the Allahabad High Court referred to above and the other decisions. The Division Bench observes at page 231 as under:
"..... A final decree specifying the properties falling to her share (and the share of the first defendant) had yet to be passed. We are of the opinion that since the plaintiff asked for an undivided half share and since the preliminary decree directed such a partition, the mere fact that the parties effected the division by mutual settlement does not mean that the preliminary decree passed on 28-1-1971 itself becomes a final decree. In any event, the parties themselves and the Court, all acted on the footing that it was only a preliminary decree and actually a final decree was applied for and passed later. On these facts, it must be held that on 6-4-1971, when the executive officer filed the said applications, the suit was still pending. The suit will be disposed of only with the passing of the final decree which was not done by that date and hence a petition under Order 1, Rule 10 of the CPC was maintainable. There is ample authority for the said proposition vide Krishna Aiyar v Subrahmania Aiyar, Rameshwar v Thakur Jeban , Syed Mohiddin v Abdul Rahim, Dinanath Kumar's case, supra, Shagun Chand's case, supra and Ollus Bank v L.F. Bank".
Their Lordships further observed at page 231.-
".....still the inherent powers of the Court recognised by Section 151, CPC are wide enough, in our opinion, to set aside the said preliminary decree. It has been held by the Supreme Court in D. Manohar Lal v Hiralal, that the provisions of the Code do not control the inherent power by virtue of its duty to do justice to the party before it. ....".
So in order to do justice to the parties and to avoid multiplicity of legal proceedings and abuse of process of Court, the Court may exercise inherent power to modify the preliminary decree.
22. The Division Bench of the Calcutta High Court in Dinanath Kumar's case, supra, also expressed the view and held that though preliminary decree having been passed, but suit is still pending, there is no legal impediment in appropriate cases to permit impleadment of the party at that stage, to avoid multiplicity of proceedings and undue harassment to the party as well as to finally adjudicate and settle the question involved in the case. The material observations of their Lordships, read as under:
"..... we are impressed by the contention put forward by the learned Advocate for the petitioner before us viz., Dinanath, that if we permit Dinanath to intervene for adjudication of the question as to whether his son Nishikanta was merely benamdar for him, that will save multiplicity of proceedings and obviate much needless harassment to the mortgagors who are not challenging the right of Dinanath. Even though a preliminary decree has been passed in the mortgage suit, the suit is still pending and there is no legal bar in appropriate circumstances to Dinanath being permitted to come in even at this stage. It is obvious that the father and the son have fallen out for some reasons and if by refusing the prayer of Dinanath under Order 1, Rule 10, we drive the parties to further litigation, the mortgagors will be put to much unnecessary harassment for no fault of theirs. We feel that in the circumstances of the present case Dinanath's 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.....".
23. Thus it appears to me that the stage in the suit is not closed till the final decree is passed. The preliminary decree no doubt determines the share, but with the preliminary decree the shares have been determined without hearing this person whose presence was necessary and whose impleadment was necessary, no finality could be attached to the decree, in the sense that it was binding on the person, namely the applicant who was not impleaded in the suit, before the passing of the decree. So it is always open to the applicant to agitate that question and say the decree is not binding and partition is null and void, to get rid of all that resulting in harassment to parties by multiplicity of legal proceedings, in my view the Trial Court when it opined the applicant (respondent) should be impleaded and that he should be heard before any final decree is passed, it did not commit any error, because for it records no final decision in his favour as regard his right and claim on merits, if the applicant was adopted son or not or any will was executed in his favour. All these questions have to be settled, before final decree could be passed. But if on trial, it is found that respondent (applicant) is the adopted son of defendant 1 (original) and will was executed by first defendant in favour of the applicant, then question may arise to be determined whether plaintiff and other defendants were entitled to any share in the property in suit or not, if so to what extent. When the Court keeping in view these circumstances, points to be determined finally, has held that for final determination of all the questions involved, applicant is a necessary and proper party and to avoid multiplicity of proceedings impleadment is necessary and that it should exercise its discretionary jurisdiction to make impleadment, directing the parties to be added, to avoid multiplicity of legal proceeding, the order and decision is one within its jurisdiction and in my opinion it is not open to interference in revision under Section 115 of the Code.
24. In the case of Razia Begum, supra, their Lordships of the Supreme Court has been pleased to observe that:
"It would, thus, appear that the Courts in India have not treated the matter of addition of parties as raising any question of the initial jurisdiction of the Court. It may sometimes involve a question of jurisdiction in the limited sense in which it is used in Section 115 of the Code of Civil Procedure".
25. In the case of impleadment of a person as a party to suit, if the Court would not have gone into the question whether applicant is a necessary or proper party and whether his impleadment is necessary for proper decision and for final determination of the case and would not have applied its mind to those questions and passed an order, either rejecting or allowing the application, then that could be said to be a case where the Court can be said to have committed jurisdictional error, as it was rejected or allowed the application, without applying mind to the relevant questions, but here the Court applied its mind to the above questions, arrived at finding and thereafter passed the order, allowing or rejecting the impleadment on the basis of its findings, it cannot be said to be a case of jurisdictional error.
26. I am unable to agree with the view expressed by the Orissa High Court in the case of Baman Chandra Acharya, supra, because in the interest of justice and to avoid multiplicity of proceedings, Court can and is expected to exercise its inherent powers, if subsequent events take place during the pendency of the proceedings in the suit or it comes out that the decree has been obtained without impleading the necessary parties and by playing fraud on the Court, and pass suitable orders on inherent powers. Therefore, till final decree is not passed, suit remains pending and it cannot be said that suit proceedings had been closed and impleadment could not be allowed.
27. Further even if for a moment it be taken that there is some jurisdictional error, though I have clearly found it is not so, as contended by Counsel no material prejudice or irreparable injury can be said to have been caused to the revisionist by the order impugned.
28. The question relating to merits of applicant's claim or right as adopted son of defendant 1 (original) or on the basis of will alleged, will all will be determined effectively, finally in the course of final decree proceedings on merits and it will avoid multiplicity of legal proceedings and suit and likely harassment to parties therefrom. Thus considered in my opinion, no injustice or irreparable injury is going to be caused to the revision petitioner i.e., the plaintiff in the suit, if the order is allowed to be maintained.
29. In my opinion, the revision is devoid of merits as such it is dismissed herewith. Cost to be borne by the parties themselves.