Khaja Abdul Khader, President, Managing Committee, Noori Masjid, Gadwal v. Mahabub Saheb & Others

1. This civil revision petition raises a short but interesting question of law relating to the scope and interpretation of the provision of R. 10- ( 2) of O. 1, C. P. C. and in particular the expression

"'questions involved' in the suit"

.

2. In-order to appreciate the scope of the question, it is necessary to briefly state the admitted facts which lie in a short compass. The petitioner herein and the fourth respondent instituted O. S. 45 of 1975 on the file of the District Munsif, Goodwill, against respondents 2 and 3 here in for their ejectment and possession of the suit lands on the ground that the suit property belonged to the Mosque and the defendants were their tenants: The defendants denied the title of the plaintiff to the suit property and claimed be in possession and enjoyment of the lands. The first respondent died I. A. No. 211 of 1975 to implead him as party-defendant on the grounds that he is the heir of one Chandubai who was granted the suit property by the Samsthan Gadwal in the year l775 Salivahan for the purpose of arranging peers in Gadwal and that the plaintiffs are not the owners of the property. The claim of the applicant that he is a necessary and proper party without whose presence the questions retains to the suit property cannot be decided, has been denied by the plaintiffs in the counter whereas the original defendants did not contest this application. The trial court held that the applicant who is sought to be impleaded as a defendant in the suit is a proper party to the suit and therefore, alloyed the application. Aggrieved by that decision the second plaintiff preferred this civil revision petition which came up before a learned single Judge (A. V. Krishna Rao, 3.) who passed the order dated 25-10-1977 directing the C. R. P. to be pasted before a Division Bench as there is a conflict between decisions of two learned Judges of this Court in Sri Rama Murty v. Venkatasubbarao (1956 Andh LT 917) and Somiah v. Amina Begum, (1975) 2 Andh WR 243: (AIR 1916 Andh Pra 182). Hence this C. R. P. has come up before us.

3. Sri R. V. Subbarao, learned counsel for the petitioner contends that the decision of the trial court is erroneous, illegal and without jurisdiction as the first respondent is neither a necessary nor a proper Party to the suit filed by the Plaintiffs for ejectment of the defendants-tenants and for possession of the suit lands. According to him questions involved in the suit in considering the claims of the parties thereto alone can be taken into account in considering the claims of the parties and cited Vaithilinga v. Sadasiva (AIR 1 1926 Mad 836), Doraiswamy v. Subramania , Somiah v. Amina Begum , P, Kondiah v. P. Guruvulu ((1978) 2 AP LJ 201), Banarasi Dass v. Pannalal (AIR 1969 Punj & Har 571, G. D. T. Luis v. I. P. Ii. Fernandes (AIR 1977 Goa 4) and the decision in C. R. P. No. l108 of 1969 (Andh Pra) in support of his claim.

4. This claim of the petitioner is opposed by the first respondent's counsel Sri O. Adinarayana Reddy, contending. inter alia,that the decision in Sri Rama Murthy v. Venkata Subbarao (1956 Andh LT 917) should he preferred to that of Somiah v, Amina Begum. , The answer to the question largely depends uponthe scope and application of the provisions of sub-rule (3) of R. 10 of O, 1 C. P. C. which reads thus:

'Court may strike out or add parties The court may at any stage of the proceedings. either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant. or whose presence before the court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added." This provision empowers the Court either strike out the name of any improperly joined or add the name of any person who ought to have been joined or whose presence before it may necessary in order to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suits. The intendment and object of this provision is to invest the Court with ample porver and jurisdiction to strike out the name of any party improperly joined or to add any person who ought to have been joined or whose Presence is necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. It may also be noticed that this power may be exercised at any stage of the Proceedings either upon or without the application of either party. This power must be exercised in the interest of justice and also to avoid multiplicity of suits in respect of all the questions relating to the subject-matter of the suit. This provision must be liberally construed as the intendment being effective and complete adjudication and settlement of all the questions involved in the suit The expression "settle all the questions involved in the suit' used in Order 1 R .10 (2). C. P. C is susceptive of a liberal and wide interpretation so as to take in the final adjudication of all the questions pertaining to the subject-matter thereof. Such wide interpretation warranted by the language employed by O. 1 R. 10 (2), C. P. C. would certainly enable the court to avoid conflictive decisions on the same questions and, at the same time, finally and effectually put an end to litigation respecting them. The framers of this rule must be held to have intended that all the material questions common to the parties to the suit and to the third parties should be tried once and for all and the court is invested to secure the aforesaid result with an ample judicious discretion to add parties which are necessary or proper in this regard. The row interpretation of settlement of all the questions involved in the suit between the parties alone would amount to adding something into this provision which was not specifically introduced by the Sovereign Parliament If the narrow view- sought to be placed upon this provision was intended by the legislature. nothing would have prevented them from using the words 'between the parties'. The crucial test for the addition or otherwise of a particular party as defendant or plaintiff is whether the presence of such party is necessary or at least proper without whom there can be no effective and final adjudication of all issues involved in the suit with regard to the same subject-matter. The intendment land object of the provision as could be gathered from the language used therein appears to us to adopt a liberal construction to enable the court to determine all the questions relating to the subject-matter of the suit arising not only between the parties to the suit but once and for all in the presence of all those parties whose presence is necessary or proper for an effective and final adjudication. This view of ours gains support from decided cases, which we shall refer. The earliest decision is that of a Division Bench of Madras High Court consisting of Chief Justice Sir Charles Turner and Justice Muthuswami Ayyar in Vaidinada v. Sitaram ((1882) AIR 5 Mad 52) While considering the scope of the expression -Whose presence before the Court may be necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit" used in an analogous provision i.e. S. 32 of the Civil P. C. of 1877 (Act X of 1877) the court rejected the contention that the expression "settle all the questions involved in the suit" must be construed as all the questions involved in the suit between the parties and observed thus:

"'To accept the more restricted interpretation involves the addition of words which we do not find in the section, namely, between the parties to the suit' and there can be few, if any. questions which cannot be determined between the parties to the suit one way or other, and of which the determination, if they be material. will, as between the parties to the suit, not be final. On the other hand, the interpretation warranted by the terms would enable the court to avoid conflicting decisions on the same question which would do injustice to a party to the suit, and finally and effectually to put an end to the litigation respecting them. No better instance of wisdom of such a rule could be afforded than is presented by the suit before the Court. This view was followed by Venkata Subbarao. J, in Secy. of State v. Murugesa ( AIR 1929 Mad 443) holding that the narrower interpretation sought to be placed upon O. 1, R. 10 (2), C. P. C, cannot be acceded to and differed from the view expressed by Srinivasa lyengar, J.. in Vaithilinga v. Sadasiva ( AIR 1926 Mad 836) wherein it was held that the expression ''all the questions involved in the suit"

means only the questions as between the parties to the litigation. Patanjali Sastri, J. (as he then was) agreed with the opinion of Venkata Subbarao, J. which is consistent with the decision of the Division Bench of the Madras High Court in Vaidianada v. Sitarama (( 1882) AIR 5 Mad 52) and specifically dissented from the view expressed by Srinivasa Iyyengar, 3. in Vaithialinga v. Sadasiva ( AIR 1926 Mad 836) and observed thus:

"The court below has taken the view relying upon AIR 59 Cal 329 : ( AIR 1932 Cal 448), that the 'questions involved in the suit' referred to in O. 1. R, 10 (2) must mean the questions which are involved in the suit as originally framed between the parties to the suit. But this High Court has placed a wider interpretation on these words and has held that the object of the provision is that where several disputes arise out of one subject matter all the parties interested in such disputes should be brought before the Court and all questions in controversy between them should be completely settled in the action. See 29 Mad L W 753 : AIR 1929 Mad 443."

Agreeing with the aforesaid view, Viswanatha Sastry, J. in Srirama Murty v. Venkatasubbarao (1956 Andh LT 917) said :

"I am in respectful agreement with the later decisions of the madras High Court. The expression questions involved in the suit in O. 1, R. 10 (2) means not merely the questions which are involved in the suit as between the parties originally impleaded. The object of the provision is that the real dispute raised in the suit should be decided in the presence of all the parties interested in the dispute and for that purpose. they should be brought before the Court. Order 1. R. 10 (2) was framed in order to ensure that the dispute might be finally determined at the same time in the presence of all the parties interested without the delay and expense of several actions and trials and inconclusive adjudication's."

To the same effect is the decision of satyanarayana Raju, J. (as he then was) in Razia Begum v. Anwar Begum (AIR 1958 Andh Pra 195) which was affirmed by the Supreme Court in Razia Begum v. Anwar Begum wherein the majority view expressed by B. P. Sinha, J. (as he then was) is to the effect that the question of addition of parties under R. 10 of O. 1 of the Code of Civil Procedure, is generally not one of initial jurisdiction but of a judicial discretion to be exercised in view of all the facts and circumstances of a case that in suit relating to property the party sought to be added should have a direct interest as distinguished from a commercial interest in the subject-matter of a litigation, and that where the subject-matter of a Litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party, it would be in 8 better position effectually and completely to adjudicate upon the controversy. The Supreme Court held that 0. 1, R. 10 (2) requires liberal construction.

5. In a recent case in Krishnamachari v. Dhanalaksmi Ramamurty, J. in a review of all the earlier decisions preferred to follow the view expressed by Venkata Subbarao. J. in Secy., of State v. Murueesa (AIR 1929 Mad 443).' We may add that the Patna High Court also expressed the same view in Bindeshwari v. Sheid Mandan .

6. We express our inability to agree with the contrary view expressed by Srinivasa Ayyangar, J. in Vaithilinga v. Sadasiva (AIR 1926 Mad 836). Consequently, we overrule the decisions of M. Ramchandra Raju. J. in Somiah v. Amina Begum, of Narasinga rao. J. in P. Kondiah v. P. Guruvalu, (1978) 2 AP LJ 201 and of A. D. V. Reddy. J. in C R. P. No. l108 of 1969 (Andh Pra). We also dissent from the views expressed by the High Court of Calcutta, Punjab and Haryana and Goa, Daman & Dill in the respective cases referred to earlier.

7. Applying the aforesaid principles of law, we have no hesitation to hold that the first respondent herein is a necessary party to the present suit. He claims to be the owner of the suit property on the ground that his great-great grandfather was granted this land by Gadwal Samsthan for the performance of the service of arranging Peerlu in Gadwal. The Plaintiffs in the suit claim to be the owners of the land in question n on the ground that it is the service inam property of the Mosque in the circumstances, we are unable to agree with Mr. Subbarao that the first respondent is neither a necessary nor a proper party to the suit. The submission of party barao that the nature of the suit itself. would be altered if the first respondent is permitted to be added as party-defendant cannot be accepted. The defendants have already denied the title of the plaintiffs to the suit Property and stated that they are in possession and enjoyment of the property. When the defendants denied the title of the plaintiffs the plaintiffs will have to establish their title to the suit property. The Court to determine the question of title of plaintiffs. In Order to decide the question relating to the ownership of land, the 1st respondent, who is sought to be impleaded in the suit as a defendant and who claims to be the owner the land in question, must be consider to be a necessary and proper party with out whose presence the question cannot be finally and effectually adjudicated upon.

8. It is next submitted by Mr. Suhbarao that the first respondents request to be added as a party-defendant being only to watch the proceedings, he may. not be added as a party-defendant at all. We have perused the affidavit filed in support of the application by the first-respondent herein, before the trial court. where in it is clearly stated that he is the owner of the property and he has filed a number of documents pertaining to the land and also claimed to prove his title and it was not mentioned that he sought to be added as a party-defendant only to watch the proceedings. True, as stated by Mr. Subarao, such statement is found in the order of the Court below. That appears to have been a mistake. Even if the counsel of the first respondent stated so before the court, that cannot be taken to be a fact when it is contrary to the very statement made by the party in his sworn affidavit filed in support of the application for impleading him as a party defendant.

9. In the result the civil revision petition is dismissed with costs.

10. Revision petition dismissed.