This revision under section 115 of the civil procedure code is by the defendant against the order, dated 24-4-1961, passed by Shri J. C. GOUT, Civil Judge, Class II, Mandla, in Civil Suit No. 15-A of 1960, allowing the application of the second non-applicant, the Gram Panchayat to be impleaded as a defendant in the suit.
2. The first non-applicant, claiming to be the owner of a disputed plot of land, filed the present suit for possession on the allegation that the present petitioner, the defendant had encroached on the same. On the other hand, the petitioner in his defence pleaded that he was the owner of the plot on the strength of a registered sale deed, dated 21-1-1942 and that there had been a dispute formerly between him and one Choudhary Mahendralal, which was settled; and in lieu of the full title of the petitioner, Rs. 800 were paid to Choudhary Mahendralal on 29-9-1948.
3. The alleged encroachment was said to have been committed in July 1959. The present suit was filed on 11-7-1959. The petitioner filed the written statement on 24-10-1960. The issues were framed on 21-10-1960. However, on 23-1-1961 the second non-applicant, the Gram Panchayat purported to file an application under order 1, rule 3 of the civil procedure cole for being impleaded as a defendant. It was alleged by the Gram Panchayat that the title vested in it and not in the plaintiff or the defendant. It was contended that the Gram Panchayat had right of ownership in the property and as such common queans of law and fact are likely to arise between the parties to the suit and the Gram Panehayat. Therefore, the Gram Panchayat was a necessary party and as such, it should have been impleaded as a defendant.
4. The petitioner-defendant opposed the application of the Gram Panchayat for being impleaded. The first non-applicant (the plaintiff) filed a non-committal statement. Further, the plaintiff stated that if it was found necessary to implead the Gram Panchayat as a party in order to avoid multiplicity of suits, it was desirable to do so, as the dispute ought to be settled once for all. Therefore, the plaintiff showed his willingness to join the Gram Panchayat as a party. The plaintiff also opposed the application of the Gram panchayat on the ground that the title vested in him. But, at the same time the application of the Gram Panchayat was categorised as unduly delayed; and if it was to be allowed, a prayer was made that it should be done subject to costs.
5. It appears that the learned Judge of the trial Court treated the application of the Gram Panchayat, dated 23-1-1961 to be under order 1, rule 10 (2) of the civil procedure code and allowed the same by observing that a rival claimant claiming title to the disputed property must be on record, as it was necessary to adjudicate on the rights of all the contending parties regarding the title to the property. In that view, the trial Judge allowed the application of the Gram Panchayat.
6. So far as the power of the Court to implead the party which has been wrongly omitted or to delete a party, which has been wrongly impleaded is concerned, there can be no doubt that the Court always has the power to add or delete parties in the interest of justice or the determination of the real matter in dispute in order to finally and effectually adjudicate upon and settle all the questions involved in the suit. In this connection, I have no quarrel with the proposition laid down by V. B. Sen J. in Neptune Assurance Co. Ltd. v. Lakhiram, Ghasiram 1951 N L J 286=A I R 1951 Nag. 280, or by Lakshmikanta Jha C. J. in Ghakori Mahton and others v. Mahadeo Singh and others A I R 1952 Pat. 433, or by Basheer Ahmed Sayeed J. in Paramasivam Pillai v. Adilakshmi Ammal and others AIR 1953 Mad. 618. But, the power granted by order 1, rule 10 (1) or (2) should always be exercised by the Court for the particular purposes or in the interest of justice as indicated by the said sub-rules. The provisions of the same are as under:-
"(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute BO to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) 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.
7. So far 38 sub-rule (1) is concerned, if the Court finds that if a suit has been instituted in the name of a wrong plaintiff or if it is doubtful whether it has been instituted in the name of the right plaintiff through a bona fide mistake and that it is necessary for the determination of the real question in dispute so to do, the Court may order any other person to be substituted or added with plaintiffs upon the terms, as the Court may think just. On the other hand sub-rule (2) provides that if a plaintiff or a defendant has been improperly joined or improperly omitted, the Court may allow that party to be impleaded either as a plaintiff or as a defendant in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. Therefore, the test is whether a party has been improperly omitted or improperly joined as a plaintiff or a defendant. In that event only, the Court would be able to exercise its powers under order 1, rule 10 (2) of the civil procedure code. Therefore, we have to apply the tests to the present case and see if the order passed by the learned Judge of the trial Court was in compliance with the requirements of the said provisions.
8. So far as the mention of order 1, rule 3 of the civil procedure code in the application filed by the second non-applicant was concerned, that will not be very material for the purpose of deciding the instant question. It is not the nomenclature, but the essence of the matter that has to be looked into.
9. In the present case the plaintiff and the defendant were at issue as regards the title to the disputed plot. Upon the plaint, as it was framed, it could not be said that the Gram Panchayat had been improperly omitted as a defendant. It may be that the Gram Panchayat may or may not have title to the disputed plot. But, the title of the Gram Panchayat is wholly unconnected with the dispute arising between the plaintiff and the defendant. It was not the plaintiff, who wanted any alternative relief as against the Gram Panchayat or to establish his own title against the Gram Panchayat. But, it was the Gram Panchayat, which wanted to come in the picture by contending that the title vested in it and not in the plaintiff or the defendant. The Gram Panchayat instead of filing a title suit chose to be impleaded as a defendant in the present suit. Therefore, if the Court finds that the plaintiff had title to the suit plot, relief can undoubtedly be granted to him for possession. Similarly if the Court .finds that the plaintiff has no title, the suit will naturally have to be dismissed.
But if the Court finds that the title vests in the Gram Panchayat, no relief can be granted to the Gram Panchayat in the present case, as the defendant appears to be a person in possession according to the plaint allegations on the basis of a trespass said to have been committed in July 1959. Therefore, the decision whether the Gram Panchayat has title to the suit plot will only be an academic one in the present case and the Court would be powerless to grant any relief on the basis of the title of the Gram Panchayat. It is from this point of view that I am of opinion that the action of the learned Judge of the trial Court in allowing the Gram Panchayat to be impleaded as a party merely to obtain an academic decision was most undesirable and unwarranted. The powers under order 1, rule 10 (2) ought not to be invoked in order to permit a party to create complications merely to obtain an academic decision. It is here that the Court is required to ascertain whether the third party, which is a stranger to the suit, should be permitted to be joined and whether it is really a necessary party or even a proper party according to the plaint, as it has been filed. I have no doubt that if the second non-applicant, Gram Panchayat is permitted to be impleaded as a defendant, not only the pleadings will have to be re-drafted so as to involve a triangular contest of title, but the issues also will have to be recast and the evidence that was proposed to be adduced by the parties will be wholly redundant and evidence of a different nature including oral and documentary evidence will have to be adduced by the parties. This course will, indisputably, entail a fresh trial de novo right from the stage of pleadings; and it is here that the Court ought to put down its foot on such a course of action, where a stranger, who is a third party, wants to join the contest merely for securing an academic decision.
10. In this connection, I am of opinion that the provisions of order 1, rule 3 and order 2, rule 3, civil procedure code could be examined with advantage in order to ascertain whether the powers under order 1, rule 10 (2) of the civil procedure code should at all be invoked by the Court.
11. In Ramswami Reddi v. Deivasigamani Pillai and others AIR 1947 Had. 395, Cbandra-Bekhara Ayyar J. (as he then was) made the following observations with reference to order 1, rule 10 of the civil procedure Code:-
"The learned Subordinate Judge rightly points out that when A and B are disputing title to a property setting up rival claims it is not open to a third party, C to come on the scene and insist on his title which is contrary to that set up by A and B being investigated and it would not be right for the Court to implead him and ask the defendant to fight the newly added man who comes into the arena at his own instance or at the suggestion of a colluding plaintiff, as is found in this case."
12. In Mt. Nagi and another v. Damodhar Jagobaji Tidke, and others 1947 U L J 497 = A I R 1948 Nag. 181=ILR1947 Nag. 623, Hidayatullah J. (as he then was) made the following observations with reference to order 2, rule 3, civil procedure code, that is, about misjoinder of causes of action: -
"I respectfully follow these cases and hold in the present case that since defendants Nos. 3 and 4 (applicants here) have set up an independent title the proper course for the learned trial Judge was to order that they be discharged. The plaintiffs after perfecting their title by obtaining specific performance against the executants of the agreement would be in a position to bring a fresh suit against anybody who stood in the way of obtaining possession. At the present time it is not possible in this suit to investigate the title which defendants Nos. 3 and 4 are setting up. Such a cause of action cannot be joined in a suit for specific performance of contract."
Similarly in 8m. Nagendra Bala Debi and others. Pravash Chandra and others AIR 1953 Cal. 185, a Division Bench consisting of Chunder and Mookerjee JJ. made the following observations:-
"It clear, therefore, that for the application of the above provisions of the Code there moat be come 'common question of law or fact' and also 'the same act or transaction or the same series of act a or transactions in respect of which or out of which the alleged right to relief arises. It is clear also on the authorities that some common link or 'nexus' must be found in order that the requisite as to there being the same act or transaction or the same series of acts or transactions may be assessed. That this in so appears plain from what has gone before and the relevant discussion in Anukul Chmdra v. Province of Bengal AIR 1947 Cal. 374=51 Cal. W N 295, above cited, where the defence plea of multifariousness was upheld."
To the same effect were the observations of Das Gupta C. J. and R. S. Bacha-wat J. in Jivandas Khimji v. Smt. Narbada Bai AIR 1959 Cal. 519. They are as under:-
"One test which has all along been recognised as of great importance is that when in the absence of a party the Court cannot give an effective remedy, that party is a necessary party. I am unable to see that the Court cannot give the plaintiff the reliefs she has asked for in this case merely because the State of West Bengal and the Trustees for the Improvement of Calcutta are not before the Court. It may be that if the suit had succeeded, the position would have been inconvenient to the present defendant, as the award being a nullity no title vested in the Government and so the Trustees also acquired no title and could pass no title to the defendant. Apart from that, the defendant may well be entitled to obtain from the Improvement Trust and the Improvement Trust from the State Government and ultimately the State Government from the real owners to whom the full compensation has been paid without making any deduction for the easement, a sum of money to represent the loss to the defendant by reason of this declaration of easement right and the creation of an impediment to his unrestricted enjoyment of the land. I am unable to persuade myself that these facts justify the conclusion that in the absence of the State of West Bengal and the Trustees an effective relief cannot be given.
Mention may be made in this connection of the two tests laid down by this Court in the case of Durga Charan Sirkar v. Jotindra Mohan Tagore I L R 27 Cal. 493. In order that a party may be considered a necessary party defendant', said Banerjee and Stevens JJ., 'two conditions must be satisfied, first, that there must be a right to some relief against him in respect of the matter involved in the suit; and second, that his presence should be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit'. I do not sea that the plaintiff has any right to relief against either the State Government or the Improvement Trust."
13. Therefore, applying the tests laid down by the said cases whether the Gram Panchayat would either be a necessary or even a proper party, I find that the Gram Panchayat merely wants to be impleaded in order to have an academic decision of its title and the Court would be powerless to grant any relief to the Gram Panchayat. It is of coarse open to the Gram Panchayat to file a title suit against both the parties and then claim that its suit might be consolidated with the present suit. That would be the proper course. But the claim of the Gram Panchayat to be impleaded as a defendant in the present suit either under order 1, rule 3 or order 1, rule 10 (2) of the civil procedure code is bound to create complications and confusion. Therefore, I am of opinion that the learned Judge of the trial Court acted with material irregularity in the exercise of jurisdiction by permitting the Gram Panchayat to be impleaded as a defendant, which would only result in an academic decision and make the contest a triangular one. Therefore, I am of opinion that the order impugned is liable to be set aside within the rule laid down by their Lordships of the Supreme Court in Keshardeo Chamria v. Radha Kishtn Ghamria and others AIR 1953 S C 23 = 1953 SCR 136.
14. As a result, this revision succeeds and is allowed with costs against the respondents. Counsel's fee Bs. 30, if certified.
Application allowed.