Allowed

Dharam Singh Kapoor and Others v. Hira Chand and Others

Himachal Pradesh HC22 Apr 2024CMPMO/33/2024

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh allowed a petition challenging the dismissal of an application for impleadment under Order 1 Rule 10 CPC. The High Court held the trial court erred in relying on a Supreme Court precedent to deny the trial court's statutory power to add necessary parties, regardless of the plaintiff's objection, as the primary goal is effectual adjudication. The impugned order wa

What did the court decide?

Set aside the order dated 23.06.2023 and directed the trial court to decide the petitioners' impleadment application afresh.

Dharam Singh Kapoor and Others Vs Hira Chand and Others — Partition | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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CMPMO No. 33 of 2024 Reserved on: 09.04.2024 Decided on: 22^nd April, 2024

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Dharam Singh Kapoor and others .......Petitioners

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Versus

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Hira Chand and others ...Respondents

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Coram

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The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?¹

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For the petitioners: Mr. Abhinav Ghabroo, Advocate. For the respondents: Mr. Maan Singh, Advocate for respondents No. 1 to 3.

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Satyen Vaidya, Judge

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By way of instant petition, the petitioners have assailed the order dated 23.06.2023 passed by learned Civil Judge, Manali, District Kullu, H.P. in Civil Suit No. 59 of 2018 titled Hira Chand and others vs. Om Prakash and others, whereby the application of the petitioners herein for impleadment as party defendants under Order 1 Rule 10 of the Code of Civil Procedure has been dismissed.

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1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

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Plaintiffs (respondents No. 1 to 3 herein) have filed Civil Suit No. 59 of 2018 before the learned Civil Judge, Manali, District Kullu, H.P. for the following relief:-

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“ It be declared that plaintiffs are owners in possession of land measuring 00-18- bighas out of total land measuring 01-15-0 01-13-05 bighas comprised in Khasra Nos. 2266 and 2268 Kitas-2, contained in Khata/ Khatouni No. 118 min/288 and 298 min (old), 7/12 and 2 min/5( new), situated at Phati Baran Kothi Baragarh Teltsil Manali, District Kullu, HP as per the sale deed No.508 dated 11.09.975 qua the share of late Sh. Parsa by excluding the alleged wrongly entered share of late Sh. Safra and revenue entries qua the suit land are liable to be entered in the revenue record and the review of mutation No. 1164 having been done by the Collector, Kullu is wrong and illegal to that extent and liable to be partly by passing a decree for declaration;”

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Initially, respondent No.4 herein was impleaded as defendant, however, during the pendency, respondents No. 5 to 10 herein were also impleaded as defendants on the asking of plaintiffs and the plaint was also amended.

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The petitioners herein are the successors of Sh. Safra Ram, who originally was recorded as co-owner of the suit land, which also is the subject matter of Civil Suit No. 59 of 2018. In a litigation inter se Sh. Safra Ram and his other coowners, though the right of Sh. Safra Ram to co-own the said

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land was not upheld, yet he was held to be in possession of the suit land. The said litigation had culminated vide judgment dated 29.07.2008 passed in RSA No. 333 of 1995 by this Court.

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The petitioners herein, on the above premise of having possession of the suit land of Civil Suit No. 59 of 2018, approached the learned trial Court for being impleaded as parties. The prayer of the petitioners herein was opposed by the plaintiffs and accordingly the learned trial Court dismissed the application of petitioners herein for impleadment vide impugned order. 6. I have heard the learned counsel for the parties and have also gone through the record carefully.

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The impugned order reveals that application for impleadment has been dismissed by the learned trial Court in the following terms:-

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“6. The case of the applicants is that they are necessary party to the lis, but the respondents/plaintiffs have intentionally not arrayed them as a party. It is also the case of the applicants that the present suit is a collusive suit.

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7. The Hon'ble Supreme Court of India in its recent decision titled as Sudhamayee Pattnaik and Ors. v. Bibhu Parshad Sahoo and Ors. Civil Appeal No.6370 of (2022) LiveLaw (SC) 773 has held that the plaintiff is dominus litis. Unless the court suo moto directs to join any other person not party to the suit for effective decree and/or for proper adjudication as per Order I

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Rule 10 CPC, nobody can be permitted to be impleaded as defendant against the wish of the plaintiffs. Not impleading any other person as defendant against the wish of the plaintiffs shall be at the risk of the plaintiffs.

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8. In the case in hand, since, the plaintiffs have objected the impleadment of the applicants as defendants, in view of above binding precedent, the present application is ordered to be dismissed with no order as to costs. The application stands disposed off. It be tagged with the main case file after due completion.”

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The impugned order further reveals that no other reason or ground has been considered for rejection of the prayer made by the petitioners herein.

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Sub Rule 2 of Rule 10 of order 1 reads as under:-

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“ (2) Court may strike out or add parties . 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.”

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The above provision vests the Court with

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jurisdiction to strike off or add parties either upon or without the application of either party. The expression “ without application of either party ” shall include the suo motu power of the Court as also the application by the third person. In any of the case, the Court has to adjudicate whether the name of any person ought to be struck off or joined as plaintiff or defendant,

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whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. In case the Court comes to the conclusion that such addition is necessary, the party shall be added.

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The learned trial Court has erred in not exercising its jurisdiction in accordance with law, merely by placing reliance upon the excerpt from the judgment passed by the Hon’ble Apex Court in Sudhamayee Pattnaik and others vs.

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Bibhu Parshad Sahoo, reported in 2022 SCC online SC 1234 . The Hon’ble Apex Court has no-where laid down that once the matter comes up before the Court by way of any means whatsoever, it cannot exercise its jurisdiction vested under Rule 10 of Order 1 of the Code of Civil Procedure. In the case in hand, the application for impleadment was by third party. That being so, the learned trial Court was required to adjudicate as to whether the presence of the applicants before it in the suit was necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit.

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In the background as set-up above, learned trial Court has failed to exercise the jurisdiction vested in it and for such reason, the impugned order cannot be sustained.

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Accordingly, the present petition is allowed. Order dated 23.06.2023 passed by the learned Civil Judge, Manali, District Kullu, H.P. in Civil Suit No. 59 of 2018 titled Hira Chand and others vs. Om Prakash and others, is set aside with a direction to the learned trial Court to decide the application of the petitioners herein for impleadment afresh, in the light of observations made hereinabove. All pending application(s), if any, also stands disposed of.

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April 22, 2024 ( Satyen Vaidya ) (naveen) Judge

Dharam Singh Kapoor and Others v. Hira Chand and Others

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Dharam Singh Kapoor and Others v. Hira Chand and Others

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