VED PAUL GANDOTRA Vs. PRAN NATH
HIGH COURT OF JAMMU AND KASHMIR
Ved Paul Gandotra
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(1.) THE parties are locked in litigation for more than two decades, subject matter being an old building situated at Gonikhan, Srinagar with
two shops in the ground floor, stated to have been constructed somewhere
in 1905 and 1910 on a parcel of land measuring three marlas originally
belonging to one Bhagat Sahani who leased out the building and one shop
in ground floor to the father and uncle of petitioners while other shop
in the ground floor was under the lease hold rights of respondents 1 and
(2.) IN 1969 the uncle of petitioner transferred his lease hold rights to their father under a compromise decree purported to have been awarded by
City Judge, Srinagar in an eviction suit instituted by above said Bhagat
Sahani against petitioners uncle Lala Tara Chand, as a result whereof his
lease hold rights were transferred to petitioners father namely Kapoor
Chand while proprietary rights of the erstwhile owner Bhagat Sahani were
confirmed by this Court under a compromise decree in 1971. Thereafter the
father of respondents 1 and 2 namely Chuni Lal and one Pran Nath who was
holding the other shop, executed separate rent deeds with Bhagat Sahani
and D.L.Sahani and were paying rent to them till 1986 when petitioners
purchased the property under two different sale deeds and after doing so
issued eviction notices upon both the tenants aforesaid on the ground of
personal necessity. On failure of respondent No.1 and the other tenant
namely Madan Lal to vacate the premises under notice, the petitioner
filed two civil suits for their eviction which are presently pending in
the trial court. After prolonged pendency of said suits the officials of
Revenue Department stepped in and declared the land underneath aforesaid
building as Nazool land about which as per their stand the petitioners
came to know in August, 2003 only when concerned revenue officials
informed them of the same. They also learnt that mutations No. 1726 and
1727 of 1998 under which the land was mutated in their favour had been cancelled without notice to them against which petitioners took legal
recourse. However, after claiming the land underneath the building as
being Nazool land, the department filed an application for their
impleadment as party to the said suits pending in the matter, on the
ground that they were a necessary party. This application was allowed by
trial court vide order dated: 27. 6.2005, which is impugned in this
2. Grounds pleaded to assail the order are that the trial court while allowing respondent No.3 to become party to the suit acted beyond
its jurisdiction and converted an eviction suit into a suit for title
which could not be done in law particularly because whole issue before
the trial court in the main suit was whether or not the petitioners are
justified in seeking eviction of respondents from the aforementioned
shops on the ground of personal necessity which could not be stretched to
the extent of accommodating the claim of 3rd respondent to agitate his
title over the suit property especially because the question whether or
not the land underneath the aforesaid building is Nazool or private land
was already subject matter of writ petition being OWP No. 621 of 2003
pending in this Court, alongwith the dispute regarding survey Number and
exact location of the land claimed by Nazool Department.
(3.) DURING course of submissions the petitioners counsel while reiterating the contents of revision petition has also given a detailed
history of litigation alongwith collateral developments and contended
that in facts and circumstances of the case, the trial court erred in
allowing the 3rd respondents impleadment application under impugned order
which if allowed to sustain is bound to subject the already prolonged
litigation to further delay which would hamper the course of justice. In
response Mr. Qayoom, learned counsel for respondents while meeting the
whole length and breadth of arguments put forth by petitioners counsel
has contended in quite some detail that in first place the impugned order
having been passed in exercise of pure discretionary power cannot be
amenable to revisional jurisdiction, and secondly that after 3rd
respondents claim of the land underneath aforesaid building belonging to
Nazool Department, the said department would automatically assume the
status of the paramount title holder and as such nobody could dispute
their title to seek impleadment. The counsel for Nazool Department too
has defended the impugned order by submitting that being title holders of
the land underneath the building in question, the department were a
necessary party to the suit and as such the trial court was not only
justified but also obliged to implead them as such against which the
petitioner had no ground to agitate.
I have heard learned counsel and considered the matter. Without unnecessary hair splitting about the factual part of controversy as
projected in the claims and counter claims the matter in issue simply is
whether in given and admitted circumstances of the case, the 3rd
respondents impleadment as party to the civil litigation ordered by the
trial court is proper. For assessing that a reference may be made to Or.
1 R. 10 (2) CPC which deals with the subject, which may for the sake of convenience be reproduced herein below:
"10. Suit in the name of wrong plaintiff; (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 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 so to do, order any other person to be substituted or added as plaintiff upon such terms as the court thinks just.
(2) Court may strike out or add parties; The court may at any stage of 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 adjudicate upon and settle all the questions involved in the suit, be added .
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where the defendant, plaint to be amended; where a defendant is added, the plaint shall, unless the court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the Limitation Act, section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.
Perusal of above quoted rule reveals that, at any stage of proceedings in a civil suit the court may either itself or on asking of either of the parties add a necessary or proper party to the array of parties whose presence before the court may be necessary for effective adjudication or settlement of questions involved in the suit, etc. Thus for addition of a person as party to a civil suit, three elements must exist; first, that impleadment of the person required to be added as a party is necessary for disposal of the case in given circumstances; secondly, that without his presence court would not be able to determine the questions involved in the suit effectively and completely; and thirdly, that the questions so involved arise from the suit within its given frame.
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