M.R. Sharma, J. - (1.) THE grievance made in the petition is that the petitioners should have been allowed to be impleaded as parties to the appeal filed by their brother Haravtar Singh against whom a decree for possession had been passed on the ground that he was a trespasser on the premises in dispute. The learned counsel for the petitioners submits that the premises in dispute were in possession of Harjit Singh, father of the petitioners, and Haravtar Singh and the tenancy was inherited by the petitioners and the said Haravtar Singh. He further argues that it was not open to the respondent to file a suit for possession against Haravtar Singh alone and that the petitioners being proper parties should be allowed to be impleaded as parties to the aforementioned appeal.
(2.) MR . Sarin, the learned counsel for the respondent, has argued that the petitioners have filed a separate suit on July 24, 1978 in which they have claimed a declaration that the decree passed against Haravtar Singh was not binding on them inasmuch as they were in possession of the premises in dispute as heirs of Harjit Singh, their father, who occupied these premises as a tenant Originally ad interim injunction was granted in their favour which was vacated by the learned trial Court in that case on September 18, 1978. Their appeal against that order was dismissed by the learned Lower Appellate Court on October 26, 1978 Mr. Sarin argues that since the petitioners have already availed of a remedy which was available to them under the law they should not be allowed to be impleaded as parties to the appeal filed by Haravtar Singh because if that course is adopted that would tantamount to setting aside the decree already passed in favour of the plaintiff -respondent. It is no doubt true that persons who are regarded as proper parties to a litigation are normally allowed to be added as parties but this principle Is subject to one exception, i.e., that such a course should not prejudicially affect the rights of the opposite party. Apparently, the suit filed by the plaintiff respondent against Haravtar Singh, brother of the petitioners, had been fought on merits and a finding had been given in that suit that he was a trespasser If Harjit Singh, father of the petitioner is found to be a tenant and the tenancy is found to be heritable by the petitioners the suit filed by them, which is said to be fixed for 15th December, 1978 before the learned trial Court, would undoubtedly succeed. In the presence of that suit, no injustice could possibly be caused to the petitioners if they are not impleaded as parties to the appeal filed by their brother Haravtar Singh. In the circumstances, the learned Court below acted within its rights to decline the prayer made by the petitioners. The petition is, therefore, dismissed. The ad -interim stay order granted in this petition is also vacated.;