Hari Nath Trthari, J.:—
This Revision Petition arises from order dated 6.2.1995 passed on the application under Order 1 Rule 10 of CPC, in a suit under Order 34 Rule 1 of Code of Civil Procedure. The Revision was listed along with an application for vacation of stay order. The parties in the case are represented, plaintiff-respondent had moved an application for vacation of stay order and sought the early listing of that case. On behalf of the Counsel for the applicant desired as well as Counsel for all the respondents agreed that the Revision, may itself be heard and disposed of. Respondents 2 and 3 are also served and are represented by Sri H.R Viswanath who put his appearance on their behalf, while Sri K.R Nagendra appeared for plaintiff-respondent. The vacating of stay order no doubt will allow the suit to proceed but in case the Revision is allowed and suit is decided earlier than the Revision revisional order may become infructuous.
2. I have heard Sri P. Ganapathy Bhat, Counsel appearing on behalf of the applicant and Sri K.R Nagendra, Counsel for respondent No. 1, Sri H.R Viswanath present on behalf of respondents 2 and 3. The applicant's Counsel submitted before me that, in a suit under Order 34 Rule 1, the lessee in possession of the property which is subject matter of the mortgage is also a necessary party and he should have been impleaded as a party in the suit. But the plaintiff did not implead the applicant, so the application moved under Order 1 Rule 10 of CPC, by the applicant. The learned Counsel submitted that defendants 1 and 2 i.e respondents 2 and 3 have let out the property in favour of the applicant by lease deed dated 10.8.1992 for a period of 25 years that is sometimes after entering into the transaction of mortgage dated 8.9.1989 between the plaintiff and defendants 1 and 2. The learned Counsel submitted that, before filing of the suit the property had been leased out by the mortgagors i.e respondents 2 and 3 in his favour and as it has been leased out after the mortgage but before the institution of suit for redemption, the learned Counsel submitted that, as such he was a necessary party and he ought to have been allowed to be impleaded but the learned Court below taking a wrong view of law, illegally refused to exercise jurisdiction vested in it under Order 1 Rule 10 of CPC.
3. The learned Counsel for the applicant placed reliance on the Decision of Their Lordships of Supreme Court in the case of Mangru Mahto v. Taraknathji . AIR 1967 SC 1390.. On behalf of respondents Sri Nagendra submitted that Court below has not committed any error in refusing to implead and to allow the application under Order 1 Rule 10 CPC, moved by the applicant even otherwise as well every error committed by the Court below i.e, subordinate Court does not amount to jurisdictional error entitling the party to seek Revision. He submitted that every decision cannot be subject matter of Revision under Section 115 CPC. So Revision should be dismissed.
4. I have applied my mind to the contention of the learned Counsel for the parties. Jurisdiction to implead a party no doubt vests in the Court under Order 1 Rule 10. But, subject to what condition that jrjurisdiction is exercisable is something which relates to the mode or manner in which jurisdiction is to be exercised. Order 1 Rule 10 Clause (2) thereof provides:
“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.”
5. A reading of this Rule perse shows that, power to strike out the name of a party or to implead a person as a party is exercisable only if either of the conditions are established, otherwise not. Normally, power to strike out the name of a party can be exercised if the party has been improperly joined. It means a party who has properly joined, the Court cannot order the striking of the name. In the same way, where a party is a necessary party in the sense that initially while filing the suit he ought to have been joined but not joined or whose presence is necessary for the Court for effective adjudication, settlement of the suit or otherwise, whose presence is necessary to enable the Court to completely adjudicate upon the question of the suit, then the Court can exercise power directing impleadment of that party. These are the conditions precedent to direct striking out of the name or for exercising power to direct impleadment of a party and on the decision of which if is wrong on such a question (which is sine-qua-non and upon the existence of which depends the exercise of jurisdiction) the Court either assumes jurisdiction or refuses to exercise jurisdiction that may also amount to be a case of jurisdictional error. In the case of Joy Chand v. Kamalaksha . AIR 1949 PC 239. and in the case of Chube Jagdish Prasad v. Ganga Prasad Chaturvedi . AIR 1959 SC 492. Their Lordships have laid down, if the sub-ordinate Court gave a decision on the legal question touching jurisdiction i.e, on question of jurisdictional fact and it decides a jurisdictional fact erroneously and thereby assumes jurisdiction not vested or deprives itself of jurisdiction so vested, power and jurisdiction of High Court to interfere under Section 115 CPC, becomes effective. As I have mentioned earlier, power to direct impleadment is vested in the Court and that power is subject to the decision on the question whether a particular person claiming to be impleaded ought to have been impleaded as a party in the suit or not or was a necessary party to enabie the Court to effectually and completely adjudicate upon, and by giving an erroneous decision one way or the other the Court assumed the jurisdiction or refused to exercise jurisdiction vested. Definitely, the case for exercise of revisional jurisdiction is made out in the present case. It has been laid down by Their Lordships of the Supreme Court dealing with the point in issue in the case of Mangru v. Taraknathji as under:
“A lease granted by the mortgagor, out of the ordinary course of management, binding as between the mortgagor and the lessee. Such a lessee acquires an interest in the right of redemption and is entitled to redeem. If such a lease is created before the institution of a suit relating to the mortgage, the lessee must be joined as a party to the suit under Order 34 Rule 1 of CPC, otherwise he will not be bound by the decree passed in the suit and will continue to retain his right of redemption. But in view of Section 52 of the Transfer of Property Act, if the mortgagor grants such a lease during the pendency of a suit for sale by the mortgagee, the lessee is bound by the result of the litigation. If the property is sold in execution of the decree passed in the suit, the lessee cannot resist a claim for possession by the auction-purchaser. The lessee could apply for being joined as a party to the suit and ask for an opportunity to redeem the property. But if he allows the property to be sold in execution of the decree, he loses his right of redemption”.
6. The above principles laid down by Their Lordships of Supreme Court clearly reveals that the lessee of a mortgagor to whom the property has been leased before the filing of the suit for redemption also has got right to redeem the property and lessee as such is a person who ought been impleaded or may on his own application be impleaded as a party in a suit for sale of property to realise the money under Order 34 Rule 1 of CPC.
7. Keeping in view the above principles. I am of the opinion that such an order rejecting the application by taking an erroneous decision on the question whether he was a necessary party or not, the Court below illegally refused to exercise jurisdiction vested by law, as such, this is a fit case for interference, under Section 115 of Code of Civil Procedure. In my opinion, the Revision deserves to be allowed and the order of the Court below whereby application under Order 1 Rule 10 has been rejected deserves to be set aside. The application which has been moved by the Revision applicant for being impleaded as a party is also allowed. Let the Revisionist be made a party in the suit. The trial Court thereafter will allow him to file the written statement or whatever opportunity he seeks for any right vested in him.
The Revision is allowed. No orders as to cost.