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KHAJA ABDUL KHADER V/S MAHABUB SAHEB & OTHERS, decided on Tuesday, November 14, 1978.
[ In the High Court of Andhra Pradesh, Civil Revn. Petn. No. 742 of 1977. ] 14/11/1978
Judge(s) : KONDAIAH & HOOURABLE P. RAMACHANDRA RAJU
Advocate(s) : R.V. Subbarao R. Prasad. O. Adinarayan Reddi.
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  "1979 AIR (AP) 152"  ==   "1979 (2) Andhwr 277"  ==   "1979 (1) APLJ 93"  ==   ""  







    Kondaiah J.1. This civil revision petition raises a short but interesting question of law relating to the scope and interpretation of the provisions of Rule 10(2) of Order 1 Civil Procedure Code and in particular the expression 'questions involved' in the suit.2. In order to appreciate the scope of the question it is necessary to briefly state the admitted facts which lie in a short compass. The petitioner herein and the fourth respondent instituted O.S. 45 of 1975 on the file of the District Munsif Gadwal against respondents 2 and 3 herein for their ejectment and possession of the suit lands on the ground that the suit property belonged to the Mosque and the defendants were their tenants. The defendants denied the title of the plaintiff to the suit property and claimed to be in possession and enjoyment of the lands. The first respondent filed I.A. No. 211 of 1975 to implead him as party-defendant on the grounds that he is the heir of one Chandubai who was granted the suit property by the Samsthan Gadwal in the year 1775 Salivahan for the purpose of arranging peers in Gadwal and that the plaintiffs are not the owners of the property. The claim of the applicant that he is a necessary and proper party without whose presence the questions relating to the suit property cannot be decided has been denied by the plaintiffs in the counter whereas the original defendants did not contest this application. The trial court held that the applicant who is sought to be impleaded as a defendant in the suit is a proper party to the suit and therefore allowed the application. Aggrieved by that decision the second plaintiff preferred this civil revision petition which came up before a learned single Judge (A.V. Krishna Rao J.) who passed the order dated 25-10- 1977 directing the C.R.P. to be posted before a Division Bench as there is a conflict between decisions of two learned Judges of this Court in Sri Rama Murty v. Venkatasubbarao (1956 Andh LT 917) and Somiah v. Amina Begum (1975) 2 Andh WR 243. Hence this C.R.P. has come up before us.3. Sri R.V. Subbarao learned counsel for the petitioner contends that the decision of the trial court is erroneous illegal and without jurisdiction as the first respondent is neither a necessary nor a proper party to the suit filed by the plaintiffs for ejectment of the defendants-tenants and for possession of the suit lands. According to him questions involved in the suit between the parties thereto alone can be taken into account in considering the claims of the parties and cited Vaithilinga v. Sadasiva AIR 1926 Madras 836 Doraiswamy v. Subramania AIR 1950 Madras 659 Somiah v. Amina Begum (1975) 2 An WR 243 P. Kondiah v. P. Guruvulu ((1978) 2 AP LJ 201) Banarasi Dass v. Pannalal AIR 1969 Punjab and Haryana 57 G.D.T. Luis v. I.P.H. Fernandes AIR 1977 Goa 4 and the decision in C.R.P. No. 1108 of 1969 (Andh Pra) in support of his claim.4. This claim of the petitioner is opposed by the first respondent's counsel Sri O. Adinanrayana Reddy contending inter alia that the decision in Sri Rama Murthy v. Venkata Subbarao (1956 Andh LT 917) should be preferred to that of Somiah v. Amina Begum (1975) 2 Andh WR 243. The answer to the question largely depends upon the scope and application of the provisions of sub-rule (2) of Rule 10 Order 1 Civil Procedure Code which reads thus :Court may strike out or add parties - The court may at any state 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.This provision empowers the Court to either strike out the name of any party improperly joined or add the name of any person who ought to have been joined or whose presence before it may be necessary in order to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suits. The intendment and object of this provision is to invest the Court with ample power and jurisdiction to strike out the name of any party improperly joined or to add any person who ought to have been joined or whose presence is necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. It may also be noticed that this power may be exercised at any stage of the proceedings either upon or without the application of either party. This power must be exercised in the interest of justice and also to avoid multiplicity of suits in respect of all the questions relating to the subject-matter of the suit. This provision must be liberally construed as the intendment being effective and complete adjudication and settlement of all the questions involved in the suit. The expression settle all the questions involved in the suit used in Order 1 Rule 10(2) Civil Procedure Code is susceptive of a liberal and wide interpretation so as to take in the final adjudication of all the questions pertaining to the subject-matter thereof. Such wide interpretation warranted by the language employed by Order 1 Rule 10(2) Civil Procedure Code would certainly enable the court to avoid conflicting decisions on the same questions and at the same time finally and effectually put an end to litigation respecting them. The framers of this rule must be held to have intended that all the material questions common to the parties to the suit and to the third parties should be tried once and for all and the court is invested to secure the aforesaid result with an ample judicious discretion to add parties which are necessary or proper in this regard. The narrow interpretation of settlement of all the questions involved in the suit between the parties alone would amount to adding something into this provision which was not specifically introduced by the Sovereign Parliament. If the narrow view sought to be placed upon this provision was intended by the legislature nothing would have prevented them from using the words 'between the parties'. The crucial test for the addition or otherwise of a particular party as defendant or plaintiff is whether the presence of such party is necessary or at least proper without whom there can be no effective and final adjudication of all issues involved in the suit with regard to the same subject-matter. The intendment and object of the provision as could be gathered from the language used therein appears to us to adopt a liberal construction to enable the court to determine all the questions relating to the subject-matter of the suit arising not only between the parties to the suit but once and for all in the presence of all those parties whose presence is necessary or proper for an effective and final adjudication. This view of ours gains support from decided cases which we shall refer. The earliest decision is that of a Division Bench of Madras High Court consisting of Chief Justice Sir Charles Turner and Justice Muthuswami Ayyar in Vaidinada v. Sitaram ((1882) ILR 5 Madras 52). While considering the scope of the expression whose presence before the Court may be necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit used in an analogous provision i.e. Section 32 of the Civil Procedure Code of 1877 (Act X of 1877) the court rejected the contention that the expression settle all the questions involved in the suit must be construed as all the questions involved in the suit between the parties and observed thus :To accept the more restricted interpretation involves the addition of words which we do not find in the Section namely 'between the parties to the suit' and there can be few if any questions which cannot be determined between the parties to the suit one way or other and of which the determination if they be material will as between the parties to the suit not be final. On the other hand the interpretation warranted by the terms would enable the court to avoid conflicting decisions on the same question which would do injustice to a party to the suit and finally and effectually to put an end to the litigation respecting them. No better instance of wisdom of such a rule could be afforded than is presented by the suit before the Court.This view was followed by Venkata Subbarao J. in Secy. of State v. Murugesa AIR 1929 Madras 443 holding that the narrower interpretation sought to be placed upon Order 1 Rule 10(2) Civil Procedure Code cannot be acceded to and differed from the view expressed by Srinivasa Iyengar J. in Vaithilinga v. Sadasiva AIR 1926 Madras 836 wherein it was held that the expression all the questions involved in the suit means only the questions as between the parties to the litigation. Patanjali Sastri J. (as he then was) agreed with the opinion of Venkata Subbarao J. which is consistent with the decision of the Division Bench of the Madras High Court in Vaidianada v. Sitarama ((1882) ILR 5 Madras 52) and specifically dissented from the view expressed by Srinivasa Iyyengar J. in Vaithialinga v. Sadasiva AIR 1926 Madras 836 and observed thus :The court below has taken the view relying upon ILR 59 Cal 329 that the 'questions involved in the suit' referred to in Order 1 Rule 10(2) must mean the questions which are involved in the suit as originally framed between the parties to the suit. But this High Court has placed a wider interpretation on those words and has held that the object of the provision is that where several disputes arise out of one subject-matter all the parties interested in such disputes should be brought before the Court and all questions in controversy between them should be completely settled in the action. See 29 Mad LW 753 .Agreeing with the aforesaid view Viswanatha Sastry J. in Srirama Murty v. Venkatasubbarao (1956 Andh LT 917) said :I am in respectful agreement with the later decisions of the Madras High Court. The expression 'questions involved in the suit' in Order 1 Rule 10(2) means not merely the questions which are involved in the suit as between the parties originally impleaded. The object of the provision is that the real dispute raised in the suit should be decided in the presence of all the parties interested in the dispute and for that purpose they should be brought before the Court. Order 1 Rule 10(2) was framed in order to ensure that the dispute might be finally determined at the same time in the presence of all the parties interested without the delay and expense of several actions and trials and inconclusive adjudications.To the same effect is the decision of Satyanarayana Raju J. (as he then was) in Razia Begum v. Anwar Begum AIR 1958 Andhra Pradesh 195 which was affirmed by the Supreme Court in Razia Begum v. Anwar Begum AIR 1958 Supreme Court 886 wherein the majority view expressed by B.P. Sinha J. (as he then was) is to the effect that the question of addition of parties under Rule 10 Order 1 of the Civil Procedure Code is generally not one of initial jurisdiction but of a judicial discretion to be exercised in view of all the facts and circumstances of a case : that in a suit relating to property the party sought to be added should have a direct interest as distinguished from a commercial interest in the subject-matter of a litigation and that where the subject-matter of a litigation is a declaration as regards status or a legal character the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party it would be in a better position effectually and completely to adjudicate upon the controversy. The Supreme Court held that Order 1 Rule 10(2) requires liberal construction.5. In a recent case in Krishnamachari v. Dhanalaksmi AIR 1968 Madras 142 Ramamurty J. in a review of all the earlier decisions preferred to follow the view expressed by Venkata Subbarao J. in Secy. of State v. Murugesa AIR 1929 Madras 443. We may add that the Patna High Court also expressed the same view in Bindeshwari v. Sheid Mandan AIR 1973 Patna 347.6. We express our inability to agree with the contrary view expressed by Srinivasa Ayyangar J. in Vaithilinga v. Sadasiva AIR 1926 Madras 836. Consequently we overrule the decisions of M. Ramchandra Raju J. in Somiah v. Amina Begum (1975) 2 Andh WR 243 of Narasingarao J. in P. Kondiah v. P. Guruvalu (1978) 2 AP LJ 201 and of A.D.V. Reddy J. in C.R.P. No. 1108 of 1969 (Andh Pra). We also dissent from the views expressed by the High Court of Calcutta Punjab and Haryana and Goa Daman and Diu in the respective cases referred to earlier.7. Applying the aforesaid principles of law we have no hesitation to hold that the first respondent herein is a necessary party to the present suit. He claims to be the owner of the suit property on the ground that his great-great grandfather was granted this land by Gadwal Samsthan for the performance of the service of arranging Peerlu in Gadwal. The plaintiffs in the suit claim to be the owners of the land in question on the ground that it is the service inam property of the Mosque. In the circumstances we are unable to agree with Mr. Subbarao that the first respondent is neither a necessary nor a proper party to the suit. The submission of Mr. Subbarao that the nature of the suit itself would be altered if the first respondent is permitted to be added as a party-defendant cannot be accepted. The defendants have already denied the title of the plaintiffs to the suit property and stated that they are in possession and enjoyment of the property. When the defendants denied the title of the plaintiffs the plaintiffs will have to establish their title to the suit property. The Court has to determine the question of title of the plaintiffs. In order to decide the question relating to the ownership of the land the 1st respondent who is sought to be impleaded in the suit as a defendant and who claims to be the owner of the land in question must be considered to be a necessary and proper party without whose presence the question cannot be finally and effectually adjudicated upon.8. It is next submitted by Mr. Subbarao that the first respondent's request to be added as a party-defendant being only to watch the proceedings he may not be added as a party-defendant at all. We have perused the affidavit filed in support of the application by the first-respondent herein before the trial court wherein it is clearly stated that he is the owner of the property and he has filed a number of documents pertaining to the land and also claimed to prove his title and it was not mentioned that he sought to be added as a party-defendant only to watch the proceedings. True as stated by Mr. Subbarao such statement is found in the order of the Court below. That appears to have been a mistake. Even if the counsel of the first respondent stated so before the court that cannot be taken to be a fact when it is contrary to the very statement made by the party in his sworn affidavit filed in support of the application for impleading him as a party-defendant.9. In the result the civil revision petition is dismissed with costs.Revision petition dismissed.