Judgement
The land for the possession of which the plaintiffs-appellants filed the instant suit was originally sold by Harnam Singh on October 16, 1930, to Lal Singh and Hira Singh. Buta Singh, the father of the plaintiffs-appellants, successfully challenged the alienation and got the usual declaratory decree on June 18, 1934, to the effect that the alienation would not bind them, and would not affect their reversionary interest. Harnam Singh subsequently died and the date of his death is in dispute. The plaintiffs-appellants did not even mention any precise date of his death in the plaint, dated April 25, 1967, wherein they merely said that Harnam Singh had died about a week earlier. That plea has been interpreted by the appellants to suggest that Harnam Singh had died on or about April 18, 1967, though in the course of arguments at the earlier stage of this case, they had sometime suggested April 16, 1967, as the date of his death possibly on the basis of some deposition in the trial Court. In the suit which has given rise to this appeal, which was, as already stated, filed on April 25, 1967, for possession of the land in dispute against the successors of the original alienees, one of the defences was of limitation which gave rise to the framing of issue No. 3. The defendants pleaded that Harnam Singh had died more than 3 years prior to the institution of the suit.
2. During the pendency of the suit in the trial Court, Mst. Ind Kaur, who is admittedly the daughter of the paternal uncle of the plaintiffs-appellants, filed an application for being impleaded as a party. That application was opposed by the plaintiffs who went to the length of denying at that stage even her relationship with the deceased. On account of the contest raised by the plaintiffs, an issue about Ind Kaur being or not being a necessary party to the suit was framed, which was decided against her by the order of the trial Court, dated January 1, 1968. The suit was ultimately dismissed by the judgment and decree of the trial Court, dated March 1, 1968, as being barred by time, on the basis of the trial Courts finding on issue No. 3.
3. During the pendency of the plaintiffs-appellants appeal in the Court of the Additional District Judge, Ferozepore, an application was made by the plaintiffs on August 21, 1969, for leave to implead Ind Kaur as a co-plaintiff, on the ground that the plaintiffs had then admitted her relationship as found by the trial Court, and alleged that she was a necessary party to the suit. Ind Kaur herself made a similar application before the first Appellate Court on December 2, 1969. By its order, dated April 17, 1970, the first Appellate Court allowed the application of the plaintiffs, and the application of Ind Kaur on the ground that she was a necessary party in view of the judgment of their Lordships of the Supreme Court in Giani Ram v. Ramji Lal, AIR 1969 SC 1144, and set aside the decree of the trial Court and remanded the suit to the original Court for retrial. The appeal of the defendants-respondents against the order of the first Appellate Court, dated April 17, 1970, was allowed by a learned Single Judge of this Court on September 17, 1971, on three grounds, namely:-
(i) that the order of the trial Court refusing to implead Ind Kaur as a party to the suit barred the application of Ind Kaur and that of the plaintiffs in the lower Appellate Court on principles of res judicata;
(ii) that Ind Kaur was not a necessary party and should not have been impleaded by the lower Appellate Court; and
(iii) that even if Ind Kaur was a necessary party, she should not have been allowed to be impleaded by the first Appellate Court as her application as well as that of the plaintiffs-appellants was not bona fide, and also necessitated a retrial of the suit.
The present appeal under clause 10 of the Letters Patent of this Court has been filed by the unsuccessful plaintiffs-appellants against the abovementioned judgment and order of the learned Single Judge.
4. Mr. Vidya Parkash Sarda, the learned counsel for the plaintiffs-appellants, has fairly and frankly conceded that Ind Kaur is the daughter of Buta Singhs brother Sher Singh, and would, according to the judgment of the Supreme Court in the case of Giani Ram, AIR 1969 SC 1144 (supra), be entitled to a decree for one-fourth of the land if she had filed a suit. He has also conceded that this suit could have proceeded without Ind Kaur having been impleaded as a party thereto, and the only effect of her not having been impleaded would have been, in view of the admitted relationship of Ind Kaur with the deceased, that the plaintiffs suit would have been decreed to the extent of the three-fourths of the land in dispute, if it was otherwise to be decreed in favour of the plaintiffs. Mr. Sarda also admits that Ind Kaur was entitled to file a separate suit for her one-fourth share in the land, and take benefit of the declaratory decree to which she was not a party. A person is a necessary party to a suit in whose absence the suit cannot lawfully proceed. In so far as Mr. Sarda has unequivocally conceded that the suit of the plaintiffs-appellants qua the three-fourths share in the land in dispute could definitely proceed in the absence of Ind Kaur, no fault can be found with the decision of the learned Single Judge to the effect that Ind Kaur was and is not a necessary party to this litigation. It is well settled that sub-rule (2) of Rule 10 of Order 1 of the Code of Civil Procedure gives wide discretion to the Court to meet every case of defect of parties, but the power must be exercised on judicial principles and not arbitrarily. One of the well-known principles in this respect is that the presence of the person added must be necessary to effectually and completely adjudicate upon and settle all the points involved in the suit, and that a party should not be added merely to avoid multiplicity of suits. On the concessions on mixed questions of law and fact made by the counsel for the appellants, it is clear that the impleading of Ind Kaur to the present suit was not necessary to effectually and completely adjudicate upon, and settle any of the points involved in the suit of the plaintiffs-appellants as originally instituted. Another principle invoked in the matter of deciding the application for impleading parties to a pending litigation is that the discretion under the abovementioned rule should be exercised in a reasonable manner so as not to cause inconvenience or embarrassment to any of the parties. It is apparent that if Ind Kaur were allowed to be impleaded at the first appellate stage necessitating retrial of the suit, it would have given an opportunity to the plaintiffs-appellants to lead additional evidence or fresh evidence to prove the date of death of Harnam Singh, and this would have been at the peril, risk and embarrassment of the defendants-respondents. Moreover, before directing a party to be impleaded, the Court can insist that it should be prima facie satisfied about the bona fides of the applicant, the plausibility of the applicants claim, and the genuineness of his/her interest in the litigation. It appears that the application of the plaintiffs-appellants cannot satisfy that test in view of the admitted fact that the appellants opposed the application of Ind Kaur in the trial Court tooth and nail, and went to the length of denying even her relationship with the deceased. Their only object, as observed by the learned Single Judge in his judgment under appeal, is to try to have another opportunity of getting out of the bar of limitation. This is also apparent to us from the fact that Mr. Sarda is not prepared to have Ind Kaur impleaded as a co-plaintiff in the suit on the condition that she would not claim re-trial or ask for an opportunity to lead additional evidence. We offered to Mr. Sarda that we may allow her to be impleaded on the abovementioned condition if Mr. Sarda is in a position to undertake to have the appeal decided by the first appellate Court on the evidence already recorded in the suit without asking for either re-trial or for an opportunity to lead any additional evidence at any stage. Mr. Sarda naturally declined that offer in the circumstances of this case which are obvious.
5. In the view we have taken about Ind Kaur not being a necessary party to the suit, and about the application of the plaintiffs-appellants moved in the lower Appellate Court not being bona fide, it is unnecessary to decide whether the finding of the learned Judge in Chambers about the trial Courts order operating as res judicata is correct or not. The appeal must in these circumstances fail and is accordingly dismissed though without any order as to costs.
Appeal dismissed.